1 of 34 DOCUMENTS 

W. R. GLASGOW, Adm'r. of BROWNING, vs. J. SANDS, Trustee of BAILEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 96; 1830 Md. LEXIS 53 

December, 1830, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Orphans Court of Baltimore County.

John Sands, as permanent trustee of George W. Bailey, filed his petition in the Orphans Court of Baltimore County, to recover from the appellant a sum of money which he alleged was due to Bailey prior to his insolvency, from Browning's estate. The following statement, exhibits the whole case:

"It is admitted that William R. Glasgow was, on the 8th September, 1826, appointed by the Orphans Court of Baltimore County, administrator d. b. n. c. t. a. of P. G. Browning, then deceased; that on the 21st of September, 1826, Glasgow, as administrator, settled an account of his administration by which he was indebted to the said deceased's estate the sum of $ 1532:82; that Mary Ann Browning, daughter of said P. G. B. became and was entitled under the will of her father, to one-sixth part of the said balance, being the sum of $ 255:40 1/3; that said M. A. B. was, after the death of her father, lawfully married to a certain George W. Bailey; that before payment of any part of the said sum of $ 255:40 1/3, she departed this life; that after the death of his wife and before payment of the said sum of $ 255:40 1/3 or any part [**2]  thereof, and on the 7th December, 1826, G. W. B. then a resident of the city of Baltimore, applied to the Commissioners of Insolvent Debtors in and for the city and county of Baltimore, for the benefit of the Insolvent Laws, and obtained a personal discharge, and on the same day, the said John Sands was appointed by the said commissioners, provisional trustee of the said G. W. B. and as such gave bond with security; that on the 15th January, 1827, a certain Ritson Browning was appointed by the said commissioners, the permanent trustee of the said G. W. B. but never gave bond as such permanent trustee, and no deed of assignment was executed by said John Sands to said R. B.; that on the 21st day of April, 1827, the said commissioners made the following report:--"In the case of George W. Bailey, an applicant for the benefit of the insolvent laws of Maryland, the undersigned commissioners of insolvent debtors for the city and county of Baltimore, in pursuance of the act of Assembly, do report to Baltimore County Court, that having diligently inquired and examined into the nature and circumstances of the said application, it appears, upon such examination, that the said Baily hath not complied [**3]  with the terms and conditions of the said insolvent laws, and hath not acted fairly and bona fide; and the said commissioners now return to the office of the clerk of the said court, there to be recorded, the schedule, and all the proceedings which have been had before them in the matter of the said application. Given under our hands this 21st April, 1827, &c."

It is further admitted, that on the 10th of May, 1828, the said John Sands, who was recommended by a majority of the creditors of the said G. W. B. was appointed by the said commissioners the permanent trustee of the said G. W. B., and as such gave bond, with security, which security was approved of by the said commissioners, and a copy of which bond is as follows, &c. "That after the application to the said commissioners of the said G. W. B., and on the 14th February, 1827, Bailey executed and delivered a release to Glasgow, in consideration of $ 50, of his claim in right of his wife, under her father's will. That at the time the said G. W. B. signed the release, there was written on the same, and signed by William T. Browning, a memorandum, guaranteeing the said Glasgow, from any claim from R. B. as trustee of Bailey.  [**4]  It is further admitted that the release, together with the memorandum thereon, was delivered to W. R. G. on the day it bears date, and that W. R. G. then knew that G. W. B. had applied for the benefit of the insolvent laws, and was informed by Bailey that he intended to withdraw his application, which was in fact never done."

Upon the foregoing statement of facts, the parties, John Sands and William R. Glasgow, pray the opinion of the Orphans Court of Baltimore county, as to the right of said W. R. G. to be allowed in the settlement of his second account with the Orphans Court, the sum of $ 255 40 1/3, as so much money paid by him to said G. W. B., and as to the right of said John Sands to a decree or order, directing the said W. R. G. to pay over to him the said J. S. the sum of $ 255 40 1/3, with interest from the 21st day of September, in the year 1826.

The Orphans Court thereupon passed the following decree:

"The court having considered the petition, the answer thereto, and the statement of facts filed in the cause by the counsel of the parties, is of the opinion that the said William R. Glasgow, as administrator, is not entitled to a credit in his administration [**5]  account, for the proportion of Mary Ann, the daughter of the said deceased, and who intermarried with George W. Bailey, and for which proportion the said Glasgow now claims to be allowed the sum of $ 255 40 1/3, as paid or satisfied to the said George W. Bailey; the court being of the opinion, that inasmuch as it is admitted that no part of the same was paid by the said Glasgow, before the said Bailey applied for the benefit of the insolvent laws of this State, and had a trustee appointed, and that said Glasgow had information that said Bailey had thus applied for the benefit of the insolvent laws, that said Glasgow ought not to have paid any part of the same to the said Bailey. It is therefore on this ninth day of February, 1829, ordered and decreed, that William R. Glasgow, administrator de bonis non, &c. of Peregrine G. Browning, deceased, pay to John Sands, trustee of the said George W. Bailey, the sum of $ 255 40 1/3, being his proportion of the personal estate of the said deceased, in right of his wife, Mary Ann; and that he also pay costs."

From this decree Glasgow appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The Commissioners of Insolvent Debtors for the city and county of Baltimore, after having appointed a permanent trustee, and certified to Baltimore County Court, that the debtor hath not complied with the terms and conditions of the insolvent laws, may, upon the neglect of such trustee to give bond within a reasonable time, appoint a new permanent trustee.

The choses in action of a deceased wife, vest in the trustee of her surviving husband, on his application for a discharge under the insolvent laws, although the husband is reported against, and does not obtain a final release.  

COUNSEL:
Williamson, for the appellant, contended,

That after [**6]  the commissioners of insolvency in and for the city and county of Baltimore, have made a final report, upon the application of an insolvent debtor, for the benefit of the insolvent laws of the State of Maryland, to Baltimore County Court, they are divested of all power over the application and proceedings of the insolvent debtor, and cannot, therefore, appoint a permanent trustee after such report; and having no authority to appoint the trustee, John Sands is not in fact, permanent trustee, and cannot therefore, act as such. That the distributive share of Browning's estate, to which Bailey was entitled in right of his wife, was a chose in action, could not be, and was not assigned to the provisional trustee. It was not Bailey's property till reduced into possession. The provisional trustee had no right to reduce it into possession, Bailey being then the only person who could reduce it into possession, and having reduced it into possession for valuable consideration received from the administrator--the administrator should not be made to pay the amount to the trustee appointed after the execution of the release from Bailey to the administrator.

He cited 1816, ch. 221, sec. 2. 3.  [**7]  1798, ch. 101, sub. 5, sec. 8. Brown vs. Brice, 2 Harr. and Gill, 24. Leadenham vs. Nicholson, 1 Ib. 278. State vs. Krebs and Warner, 6. Harr. and Johns. 34.

Gill for the appellee, cited Schuyler vs. Hoyle, 5 John, C R. 206. Stewart vs. Stewart, 7 Ib. 247. Hurt vs. Fisher, 1 Harr. and Gill, 96. 2. Madd, 636. Mitford vs. Mitford, 9 Ves. Jr. 87. 2 Atk. 544. Act of 1819, ch. 84, sec. 1, 6. 1805, ch. 110, sec. 4.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*100]  DORSEY, J., delivered the opinion of the court.
By the argument in this case, two questions have been presented for our determination. First--whether the commissioners of insolvent debtors for the city and county of Baltimore, after having appointed a permanent trustee, and certified to Baltimore County Court that the applicant hath not complied with the terms and conditions of the insolvent laws, can, upon the neglect of such trustee to give the requisite bond within a reasonable time, appoint a new trustee? Secondly; whether a chose in action of a deceased wife is vested in the trustee of her surviving husband, and insolvent petitioner? By the [**8]  act of 1816, which provides for the appointment of these commissioners of insolvency, applications for the benefit of the insolvent laws were made to Baltimore County Court, who referred them to the commissioners, who, after proceeding to the appointment, first, of a provisional, and then of a permanent trustee, were required to examine into the nature and circumstances of all such applications, and if, upon such examination, it appeared that the petitioner had complied with the terms and conditions of the insolvent laws, and had acted fairly and bona fide, they were to report the same to Baltimore County Court, "and return the schedule and all proceedings which may have been had before them, to the office of the clerk of Baltimore County Court, there to be recorded." Under this law, the County Court were authorized to grant either a personal or final discharge to the petitioner: and if the examination by the commissioners resulted unfavorably to the applicant, no report thereof was to be made to the County Court, nor the schedule, or any of the proceedings before the commissioners returned.

 [*101]  With a view to relieve Baltimore County Court from many of [**9]  the duties connected with applications for releases under our insolvent laws, to which it was still subject, the Legislature passed the act of 1819, ch. 84, investing the commissioners with the power of granting personal discharges, directing all applications of insolvents to be presented to them, instead of the County Court, and transferring to them all the powers of Baltimore County Court, or the judges thereof, in relation to such application, except the granting of final discharges and trying allegations, &c. It also enjoins the commissioners, "in case it shall appear to them that the applicant hath not complied with the terms and conditions of the insolvent laws, to certify the same to Baltimore County Court, and also to transmit to the clerk thereof, all deeds of assignment executed by any such applicant, or applicants, and all such other papers relating to the estate of such applicant or applicants, and brought before them as they may deem it proper to have preserved and recorded." But it does not require, as in the case of their favorable report, a return of the schedule and all proceedings which may have been had before them. These, when their report is unfavorable [**10]  to the applicant, remain in their custody, in order that they may comply with the injunction in the 6th sec. of the act of 1819, which declares that "when the report of the commissioners shall be unfavorable to the applicant or applicants, the said commissioners shall cause the trustee to proceed in the execution of the trust, in the same manner, and subject to the same rules, regulations, and restrictions, as if the report of the said commissioners, had been favorable to such applicant or applicants. By the 4th sec. of the act of 1805, ch. 110, which this court has said is part of the insolvent system, applicable as well to Baltimore city and county, as to the rest of the State of Maryland, the trustee before he proceeds to act, shall give bond to the State of Maryland, for the use of the creditors of the petitioning debtor, in such penalty as the County Court shall direct, and upon his "neglect to give bond 

 [*102]  as aforesaid in a reasonable time, to be judged of by the County Court," the County Court shall appoint such person as they shall think proper, in his place, who shall give bond as aforesaid." Upon viewing these several acts of assembly in connection [**11]  with each other, we think that the commissioners were authorized, under the circumstances in which they did so, to appoint John Sands the permanent trustee of Bailey, and to take bond from him as such. That the commissioners are invested with the power in the first instance, of appointing a permanent trustee, is obvious from the 3d sec. of the act of 1816, and the act of 1820, ch. 182; and by adverting to the 4th sec. of the act 1805, and the 1st and 6th sections of the act of 1819, we deem it equally clear, that they acted within the scope of their powers in making the appointment objected to in the case before us. The schedule of the petitioner in legal contemplation remained with the commissioners, and they only, perhaps, could therefore properly direct the penalty of the bond to be given by the trustee. By the act of 1819, their investiture with all the powers of Baltimore County Court, is as full and comprehensive as language could make it, and the peculiar and exclusive fitness of the commissioners for the discharge of the duty which they have assumed in this case, leaves no doubt in our minds of the legality or propriety of its exercise. Had the County [**12]  Court have made the appointment, having no knowledge of the amount of debts due from or to the petitioner, or the value of his property, they would have had nothing to guide them in prescribing the penalty of the trustees' bond, which by law, it would be their duty to direct. Against the exercise of the power by the commissioners, no solid objection has been urged. 'Tis true in this case the schedule and all the proceedings before them, were returned to the clerk of the Baltimore County Court, to be recorded. But this does not vary the general principle applicable to like cases; it was done in obedience to no mandate of the law, in contemplation of 

 [*103]  which the schedule and their proceedings were still in their custody.
In our present decision, we mean to intimate no opinion as to the power of the commissioners to make an appointment like the present, where their report to the County Court has been in favor of the insolvent debtor, and the schedule and all their proceedings returned therewith.
The second question we deem too clear to require either authority or illustration to sustain our opinion upon it. By the act of 1798, ch. 101, sub-ch. 5, sec. 8, it [**13]  is enacted that "if the intestate be a married woman, it shall not, as heretofore, be necessary for her husband to take out letters of administration, but all her choses in action shall devolve upon her husband, in the same manner as if he had taken out such letters." Under the provision of the act of assembly, Bailey might have collected the claim now in controversy, and have applied the same to his own use; he was competent to release, compromise, assign or dispose of it, in any way he might see fit; and to all the purposes of this controversy, it is to be regarded in the same light as if it were a debt or chose in action, due to Bailey himself, and consequently vested in the appellee upon his giving bond as required by law. The statutory assignment of the petitioner's estate, is of all property which he has a claim, title to, or interest in, and of all debts, rights and claims, which he has, or is in any way entitled to.
DECREE AFFIRMED.  

2 of 34 DOCUMENTS 

KEMP vs. THE BALTIMORE FIRE INSURANCE COMPANY 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 108; 1830 Md. LEXIS 1 

June, 1830, Decided 

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

Assumpsit, by the appellant, against the appellees, on an accepted order, drawn by a certain David Scott, on the appellees, and dated December 16th, 1824. The declaration contained a special count on the order, the money counts, a count for work and labor, and on an insimul computassent. The defendants pleaded non assumpsit, and issue was joined.

1. At the trial, the plaintiff offered in evidence to the jury the following order of David Scott upon the said Company, and also the acceptance of the same by David Williamson, who was at the time, and still is, the President of the said Company. "Frederick County, Dec. 16th, 1824. Sir, Agreeable to an article entered into this day, by Daniel Kemp, to do the millwright's work of Walter B. Kemp's mill on the Monocacy, I do hereby authorize you to retain seven hundred and fifty dollars out of the last payment to be made to me, and to pay it over to said Kemp as soon as he is completely finished, agreeable to his contract, and charge the same to account of your humble servant, David Scott. To David Williamson, Esq. President of the Baltimore Fire Insurance Company. Accepted. D. Williamson, Prest.  [**2]  23d December, 1824." The plaintiff further offered in evidence, the policy of insurance between the defendants and the owners of the said mill, by which the same was insured against loss from fire, and which secured to the defendants, the right of reinstatement, in preference to payment, if the former should be deemed most expedient by the Company. And also offered in evidence, the following agreement: "Memorandum of an agreement made this 15th of October, 1824, by, and between the President and Directors of the Baltimore Fire Insurance Company of the one part, and David Scott, of Frederick county, of the other part, witnesseth: That the said David, hath agreed to rebuild the Monocacy mill, and replace all the machinery which was in the said mill, agreeably to the description given by Mr. John Davies, in his letters of the 9th June, 1823, and 13th October, 1824, and a plot presented at the office of said Company, this day; the said mill having been insured in this office, for Walter B. Kemp, and to complete the same, on or before the first day of June next, for, and in consideration of the aforesaid, the Insurance Company promise to pay the said Scott, eight hundred dollars in hand,  [**3]  and one thousand dollars on the first day of December next, continuing as the work progresses, the payment of one thousand dollars, on the first day of each following month, until the first of July inclusive; provided, the work shall then be finished. D. Williamson, President. David Scott. The above to serve, until a more full detail and contract shall be executed, and security given by the said Scott." He also offered in evidence to the jury, the following letters: "To the President and Directors of the Baltimore Fire Insurance Company. Gentlemen: Mr. Buckey has left with me, for adjustment, a claim against your office, to a considerable amount, for a loss on a mill on the Monocacy. Will you be so good as to inform me if it can be adjusted otherwise than by suit. Very respectfully, John Glenn. Baltimore, Feb. 25th, 1826." "Mr. John Glenn, Sir: We have received your note as attorney for Mr. Buckey, wherein you state he has a claim on this office. He was in town about two weeks since, and did not exhibit any account of what he claimed from the Company. They have fulfilled their engagement, by rebuilding a new mill several thousand dollars better than the old one, which can be proved.  [**4]  By order, Henry W. Webster, Sec'ry. Baltimore, Feb. 28th, 1826." And also proved by Webster, secretary of the defendants, that he was such, and that by a parol order of the board, he had addressed the said letter to John Glenn, esquire. And that the mill mentioned in said letter, was the same referred to, in the order drawn by Scott upon the defendants. The plaintiff also proved that he had completed his portion of the work, according to the terms of his contract with Scott, and that Scott had received the said work, and expressed himself satisfied therewith. And that the defendants had paid Scott all the payments to which he was entitled under his contract, for rebuilding said mill, except the last payment, amounting to one thousand dollars, which sum remained with, and still is retained by the defendants, because of an alleged non-compliance, made by the persons entitled to said policy of insurance, by David Scott, with his said contract with the Company; and on account of which, a suit is now pending in this Court on said policy, against the defendants. And that the mill was built by Scott, and in a workmanlike and proper manner; that the same had been burnt down in August, 1824,  [**5]  but was not rebuilt and finished, until 1st January, 1826, on which day, the proprietors took possession thereof, and afterwards gave the following note, signed by Christian Kemp and Daniel Buckey, "15th January, 1826. George Baer, Esquire. You can state to David Williamson, Esquire, President of the Baltimore Fire Insurance Company, that we were called on by Daniel Kemp, millwright, who has done the millwright's work to the mills called Monocacy mills, which David Scott had undertaken to rebuild for the Baltimore Fire Insurance Company. We are satisfied with the workmanship of Daniel Kemp. We have taken the mill off his hands, as to the workmanship." After the foregoing evidence had been given to the jury, the plaintiff offered in evidence, legal proof of the pendency of a suit in Baltimore County Court, wherein Walter B. Kemp, (for the use of Christian Kemp and Daniel Buckey,) was plaintiff, and the said Baltimore Fire Insurance Company, defendants; and that on the 26th November, 1827, said defendants applied for the continuance of said suit, and for the purpose of procuring the same, the said Williamson, as President aforesaid, made in open Court the following affidavit: "Kemp vs.  [**6]  The Baltimore Fire Insurance Company. Baltimore County Court, September Term, 1827. David Williamson, the President of the Baltimore Fire Insurance Company, the defendants in this cause, makes oath in open Court, that the defendants cannot proceed to the trial of the cause at this time, for the want of evidence material, competent, and proper; that William Durham and David Scott, are material, competent, and proper witnesses, for the defendants in the said case, and that the Company expect to prove by said witnesses, that the mill in the policy of insurance mentioned, upon which the action is brought, was, after the destruction thereof, rebuilt by said Company, under the provisions of the memorandum, at the foot of said policy, within a reasonable time, and was as good when rebuilt, as the mill burnt was originally when insured, &c.;" which said affidavit, the plaintiff offered to read in evidence (the said Williamson being then present in Court) to the jury, in order to shew to the jury, that the mill had been rebuilt, and to use the said affidavit as an admission thereof. To the reading of which affidavit to the jury, as evidence of the fact, that the conditions stated in the accepted [**7]  order of Scott, upon defendants, and upon which, as appears upon the face of said order, it was accepted as aforesaid, by said Williamson as President, had been complied with, the defendants objected, and the Court being of opinion, that the same was not evidence for the purpose aforesaid, rejected the same, the plaintiff excepted.

The defendants then upon the whole of the evidence above stated, as given to the jury, prayed the Court, to direct the jury, that the said evidence was not sufficient to prove, that the conditions upon which the aforesaid order had been given and accepted, had been complied with, and that the plaintiff was not entitled to recover; which direction, the Court gave. The plaintiff excepted, and the verdict and judgment being against him, he appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

An Insurance Company having elected to rebuild a mill destroyed by fire, which they were bound to complete within a reasonable time, contracted with S on the 15th October, 1824, who agreed to rebuild and complete it on or before the 1st June next thereafter, for which he was to be paid "$ 800 in hand, and $ 1000 on the 1st December next, continuing as the work progressed, the payment of $ 1000 on the first day of each following month, until the 1st July inclusive, provided the work shall then be finished." On the 16th December, 1824, S drew an order on the Company in favor of the Millwright, which authorized the Company to retain $ 750 out of the last payment to be made to him, and to pay it over to the Millwright, as soon "as he is completely finished, agreeably to his contract." This order was accepted by the Company. In an action by the Millwright upon the order, it appeared that he had finished his part of the work according to his contract with S--that the owners of the mill were satisfied with the character of his work--that the mill, however, was not finished until January, 1826--that the Company retained the last $ 1000, which they were to pay S, to answer a suit which the proprietors of the mill had brought against them, for an alleged violation of S's contract. HELD, that upon the true construction of the order, the plaintiff was entitled to receive the $ 750 from the Company, only in the event of S becoming entitled to his last installment, out of which it was to be paid--and that although time is not generally considered to enter into the essence of a contract; yet, in this case, it ought to have that effect, by reason of the Company's liability to the assured to rebuild in a reasonable time.

In an action against a corporation, the affidavit of the president thereof made for the purpose of procuring a continuance, in another cause than that in which it was offered as evidence, is not competent testimony against such corporation, though the subject matter of the affidavit be pertinent to the issue. He should be sworn as a witness, the defendant being entitled to a cross examination. 

COUNSEL:
Frick, for the appellee, contended,

1. That there was legal, admissible evidence offered to the jury, from which they could have inferred and determined, that the condition on which the order upon the President of said Company was given and accepted, had been complied with, and that the Court erred in their absolute direction to the jury, that the said [**8]  evidence was insufficient for that purpose. 2. That the affidavit of David Williamson, the President of the Company, was legal, admissible testimony, for the purpose aforesaid. On the first point he cited Morris vs. Brickley and Caldwell, 1 Harr. and Gill, 107. Davis vs. Davis, 7 Harr. and Johns. 38, 39. Elder vs. Warfield, Ib. 394, 417. Laidlow vs. Organ, 2 Wheat. 178. Cathell vs. Goodwin, 1 Harr. and Gill, 470. Wright vs. Freeman, 5 Harr. and Johns. 478. Ferguson vs. Tucker, 2 Harr. and Gill, 189. Burt vs. Gwinn, 4 Harr. and Johns. 516. Alston vs. Contee, Ib. 351. 1 Stark. Ev. 398, 399. Etting vs. Bank U.S. 11 Wheat. 75. 1 Stark. Ev. 429. McLanahan vs. Universal Ins. Co. 1 Peters' S. C. Rep. 170, 171. Thornton vs. Wynn, 12 Wheat. 183.

Johnson, for the appellees. The question here is upon the contract set out in the first count in the declaration, and the construction of that contract is for the Court. Ferris vs. Walsh, 5 Harr. and Johns. 306. The order of December 16th, 1824, creates an obligation to pay only upon the condition that Scott should be entitled to demand the last instalment. At the time the order was drawn and accepted, that instalment had not become due. By Scott's [**9]  contract with the defendants, the mill was to be completed in July, 1825, and the last instalment was to be paid only in the event of his fulfilment of that part of his contract. It was not finished until January, 1826, and therefore, the last instalment did not become payable. There is no evidence that the defendants ever discharged Scott from the terms of the contract.

That the affidavit of Williamson was not evidence, he referred to Bateman vs. City Bank, 7 Harr. and Johns. 104.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*113]  STEPHEN, J. delivered the opinion of the Court.
The facts of this case, and the questions therein involved, lie within a very narrow compass. They are as follows: (here the Judge stated the facts in the bills of exceptions,) and then said, the principal question in the case arises upon the true construction of Scott's order upon the Company, in favor of Daniel Kemp. By the terms 

 [*114]  of his contract with the Company, Scott was bound to rebuild the mill by the first of June, 1825, and it was proved in the cause, that it was not rebuilt until the first of January, 1826. The mill [**10]  was burnt down in August, 1824. The Company having elected to rebuild the mill, were bound to do it in a reasonable time. Scott contracted on the 15th of October, to rebuild it by the 1st of June, 1825, and his last payment was to be made upon that condition; and although time is not generally considered to enter into the essence of a contract, yet in this case, we think it ought to have that effect, by reason of the Company's liability to the assured, to rebuild in a reasonable time; and for the non-performance of which, it appears, that a suit had been commenced against them. We think, that upon the true construction of the order, Daniel Kemp was entitled to receive the $ 750 from the Company, only in the event of Scott's becoming entitled to receive his last installment of $ 1000, out of which it was to be paid, upon complying with the terms of his contract, to rebuild the mill by the 1st of June, 1825. We are furthermore of opinion, that the affidavit of David Williamson, was properly rejected, as he was present in Court at the time, and ought to have been sworn as a witness, the defendants in the cause being entitled to a cross examination.
JUDGMENT AFFIRMED.  [**11]  

3 of 34 DOCUMENTS 

CHARLES GWYNN vs. JONES' LESSEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 173; 1830 Md. LEXIS 6 

June, 1830, Decided 

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

This was an action of Ejectment, brought by the appellee (the plaintiff in the Court below) against the appellant, (the defendant in that Court) for attract of land called Expectation. The defendant pleaded not guilty, and took defence on warrant. Plots were made and returned.

1. At the trial, the plaintiff proved to the jury, that one James Norris was seized in fee of the tract of land called Expectation, in the declaration mentioned, on the 9th of June, 1774, and also gave in evidence the following writ of ad quod damnum, the inquisition, and return thereon, with the lease of that date thereon, made to one Thomas Saunders, which said lease, and other proceedings, under the ad quod damnum aforesaid, were regularly attested, under seal, and are as follows: "Maryland ss. Frederick, absolute lord and proprietary of the provinces of Maryland and Avalon, lord baron of Baltimore, &c. To the Sheriff of Baltimore county, greeting: We command you, that by the oaths of twelve honest and lawful men of the county, by whom the truth of the matter may be better known, you diligently inquire if it be to the damage of us, or others, if we grant unto Thomas [**2]  Saunders, of Baltimore county, twenty acres of land, lying on a run of water called Winter's Run, in Baltimore county, aforesaid, viz: ten acres on one side of such run, and ten acres on the other side of such run of water, together with liberty to take, fall, cut down and carry away, either by land or water, any wood or timber fit to build a mill, other than timber fit to split into clap-boards, upon any the lands next adjoining to the said twenty acres of land lying on each side of said run of water, at Winter's run aforesaid, in the county aforesaid: and if it be to the damage and prejudice of us, or others, then to what damage and prejudice of us, and to what damage and prejudice of others, and of whom, and in what manner, and how, and of what value they are, by the year, according to the true value thereof, now before any other improvement of the said twenty acres of land; and who are the present possessors of the said twenty acres of land, and what lands and premises remain to the present possessors over the said twenty acres; and if the said land, remaining to the present possessors, over the said twenty acres, will suffice to uphold their manor, viz: the sixth part of their [**3]  manor, allotted them by the conditions of plantations, for the demise, before the alienation, so as the county, by the alienation aforesaid, in default of the present possession, more than was want, not to be charged, and grieved, and the inquisition thereupon openly and distinctly made to us, in our Chancery, under the seal and the seals of them by whom it was made without delay, send. Witness our trusty and well beloved Horatio Sharpe, Esquire, Chancellor of our said province, this 13th day of April, in the 13th year of our dominion, A. D. 1764. Rheverdy Gheselin, Reg. Cur. Can."

"Baltimore County, ss. This is to certify, that at the execution of a writ of ad quod damnum, the inquisition of which is hereto annexed, I have surveyed and laid out in the name of Thomas Saunders, of Baltimore county, on a run called Winter's run, ten acres on one side, and ten acres on the other side of said run, beginning at a bounded red oak, standing on the west side of Winter's run aforesaid, it being the third bounded tree of a tract of land called the Expectation, and running, &c. containing and laid out for twenty acres, more or less. Wm. Smith, D. S. H. C."

"This inquisition indented,  [**4]  and taken upon Winter's run, descending into Bush river, in Baltimore county, this second day of July, in the year of our Lord, seventeen hundred and sixty-four, before me, Aquila Hall, high Sheriff of the same county, by the oaths of James Maxwell, &c. twelve honest and lawful men of the county aforesaid, who being sworn by virtue of the writ hereunto annexed, to inquire into the exigency thereof, upon their oaths do say: that if the right honorable the lord proprietary grant unto Thomas Saunders, of Baltimore county, twenty acres of land, lying on the said Winter's run, descending into Bush river, as aforesaid, viz: 10 acres on each side of the said run, bounded according to the metes and bounds mentioned in the certificate of survey hereunto prefixed, made by William Smith, surveyor of the county, as may be most convenient for the building a water mill at the place above mentioned, in Baltimore county aforesaid, it would not be to the damage of the honorable the lord proprietary, as being no manor; and that the said 20 acres of land, is of the yearly value of one pound sixteen shillings, current money, without further improvement and no more; and that the said 20 acres of land is [**5]  part of two tracts of land, viz: 10 acres, one moiety thereof lying on the west side of the aforesaid run, is part of a tract of land called the Expectation, and James Norris is the present possessor, and is thereby damaged the sum of fifteen pounds, and the yearly rent thereof, is eighteen shillings current money, and the other 10 acres, the other moiety thereof, lying on the east side of the aforesaid run, is part of a tract of land called the     being the Glebe of Saint John's Parish; and the vestry of Saint John's Parish, aforesaid, are the present possessors, and they are thereby damaged the sum of £  20 current money, and the yearly rent thereof, is eighteen shillings current money, and there still remains sufficient to each of the present possessors to uphold their manor, viz: one sixth part thereof. In testimony whereof, as well the sheriff as the jurors aforesaid, have hereunto set our hands and seals, the day and year above written. Signed and sealed by the sheriff and jurors."

"Maryland, to wit: The right honorable Henry Harford, Esquire, lord and proprietary of the province of Maryland. Whereas, Thomas Saunders, of Baltimore county, hath purchased out of our Court [**6]  of Chancery, within our said province, our writ of ad quod damnum, directed to the sheriff of Baltimore county, commanding him, &c. (here the lease recited the writ:) And whereas the aforesaid sheriff at the instance and request of the aforesaid Thomas Saunders, did return into our said Court a certain inquisition, indented and taken before him in the county aforesaid, on the second day of July, in the year of our Lord 1764, by the oaths of twelve honest and lawful men of the county aforesaid, who upon their oath did say, &c. (here the lease recited the inquisition and return:) Now know ye, that we are contended and pleased to grant, and by these presents do demise, grant, and to farm, let unto the aforesaid Thomas Saunders, his heirs, executors and administrators, the aforesaid 20 acres of land, to build a water mill, together with free egress and regress to the said water mill, either by land, through any man's land next adjoining to the said 20 acres of land, or else by water, together with liberty to take, fall, cut down and carry away, either by land or water, any wood or timber fit to build a mill, other than timber fit to split into clap-boards, upon any of the lands next adjoining [**7]  to the said 20 acres. To have and to hold the said 20 acres of land, and premises aforesaid, unto him, the said Thomas Saunders, his heirs, executors and administrators, from the date of the inquisition aforesaid, unto the full end and term of eighty years then next ensuing, to be complete and ended. Yielding and paying therefor, unto our heirs and successors, the same rents, fines and services, as are reserved due and payable unto us for the said 20 acres, and also yielding and paying the yearly rents in the above inquisition set forth. Witness, Richard Lee, President and Chancellor of our said province of Maryland, this 9th day of June, in the third year of our dominion, 1774." True copy--Test, Ramsay Waters, Reg. Cur. Can.

And the plaintiff also gave in evidence, that Saunders then entered into possession of the lands in said lease described, as the same is located on the plots in this cause. That he afterwards built a mill thereon, which went into disuse in the year 1785. That the said Thomas Saunders, on the 1st day of December, 1786, conveyed the land in the said lease described, unto John Lee Webster, who, upon the death of said Saunders, in the year 1792, took possession [**8]  of the same and held it until his death. And that the said Webster, by his will, in 1795, devised the same unto his son, Isaac Lee Webster, who took possession thereof, and by him and his tenants, of whom the defendant is one, the same hath been held in possession to this time, and by the defendant for fifteen years before the institution of this suit.

Thereupon the defendant offered evidence that the said Thomas Saunders had, by actual enclosure, held the possession for several years before his death, of all the land contained without the location of his possession, as made on the plots in this cause; that part of the fences which formed the said enclosure and possession, were shortly after his death moved to where they are now located on the plots in this cause, by the defendant, as his possession by indented lines, and as his defence in this case; that to this extent, possession by actual enclosures, has always since so remained; that the said John Lee Webster, and Isaac Lee Webster, his tenants, and the defendant as one of them, actually held and possessed all the land within the said enclosures of possession so located, for which defence is made in this action.

Whereupon [**9]  the plaintiff further gave evidence to the jury, that the said James Norris, by his will in August, 1798, devised 100 acres of the land in the declaration mentioned, including the part so held by the defendant, to his son James Norris, in fee, who entered into, and possessed the same, except the part aforesaid located as the possession of the defendant, and the said Webster and Saunders; that the said last mentioned James Norris, executed a deed (of which the following is an office copy,) to Josiah S. McComas, and the said Josiah S. McComas executed the deed following to Benjamin G. Jones, lessor of the plaintiff.

The deed from James Norris, the son, to Josiah S. McComas, was dated 9th July, 1807, and in consideration of the sum of £  150, "granted, bargained, sold, aliened, enfeoffed, and confirmed unto him, the said Josiah, his heirs and assigns, part of a tract of land called Expectation, lying on the lower end of said tract, containing 100 acres, and all the estate, right, title, and interest whatever, of him, the said James Norris, both at law and in equity, to the said tract of land and premises, hereby bargained and sold, or meant, mentioned, or intended so to be, and every [**10]  part and parcel thereof." This deed was duly acknowledged and recorded, as appeared from the certified copy, under the seal of the clerk of Harford County Court.

The deed from Josiah S. McComas to Benjamin G. Jones, was dated 21st February, 1818, and in consideration of the trusts reposed in him by a certain James Norris, and the payment of one dollar, granted, bargained, sold, aliened, released and confirmed, unto the said B. G. J. and his heirs, the same land and interest as described in the preceding deed. This was an original deed. There was the usual certificate of acknowledgment before two of the justices of the peace, and it was in fact endorsed on the back as follows: "received and recorded the 21st day of February, 1818, in liber H. D. No. 1, folio 227, one of the land record books of Harford County Court, and examined by Henry Dorsey, Clerk." And also proved that the said McComas and Jones, took possession under said deeds, respectively, of the land mentioned therein, except the part so as aforesaid mentioned, in the possession of the defendant. The defendant then prayed the opinion and direction of the Court, to the jury, that if they believed the matters so given in [**11]  evidence, that then the length of possession so holden by the defendant, and those under whom he claims, doth in law bar the plaintiff's recovery of the land, included within the lease to Saunders, being the land condemned as aforesaid; but the Court [ARCHER, Ch. J.] refused such opinion and direction. The defendant excepted.

The plaintiff then offered evidence, that in the year 1805, the said James Norris, the younger, being on the land so occupied by the said defendant, did enter thereon, and did demand of the defendant the surrender to him of the said land. And that the said defendant refused to surrender the possession of the same to the said Norris. Whereupon the defendant objected, that the entry and demand so made, were insufficient to entitle the plaintiff to recover, and prayed the opinion of the Court, and their direction to the jury, that if such entry and demand be necessary in law, that the same ought to be made by the lessor of the plaintiff, after the deed of conveyance before mentioned made to him by said McComas, and before this action brought; but the Court, [ARCHER, Ch. J.] refused such opinion and direction, and directed the jury, that the entry and demand [**12]  so made by the said James Norris, was a sufficient entry and demand. The defendant excepted, and the verdict and judgment being against him, he appealed to this Court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

By the act of 1766, ch. 14, sec. 2, conveyances to pass an estate in lands for above 7 years, are required to be enrolled within six months from their date. The enrolling officer is directed immediately, upon the receipt of any such deed, to endorse thereon the time of his receiving it--to enrol it, and, "on the back of every such deed, in a full, legible hand, make a certificate of such enrolment, and the time of making it." An original deed of that character, cannot be read as evidence of title, without offering proof of the hand-writing of the officer who endorsed it.

The common law restrains the assignment of an entry for a condition broken, where, after the forfeiture incurred, the estate may continue; but it allows it where the violation of the condition puts an end to the estate of the particular tenant.

It is a case of constant occurrence, where a grantor, having a right of entry on land, conveys it to another, and therewith, necessarily, the power to maintain an Ejectment for it.

Mere continuance in a possession, which originated under a lease from the Lord Proprietary of this State, created in conformity to the act of 1704, ch. 16, sec. 5, after the reversioner is entitled to re-enter for a condition broken, and before the original term had expired by lapse of time, is not adverse to the reversioner's right to re-enter, nor will limitations begin to run under such circumstances.

Where a possession commenced rightfully, and with the consent of the owner, nothing is to be presumed to make it adverse. Mere holding over, after the term ended, is not evidence of an adverse possession; and the possessor will be regarded as the tenant at will of the landlord, unless he can show that, since the expiration of the lease, he has held forcibly, or has acquired a title paramount to that under which possession was originally taken.

The following are extracts of so much of the two acts of Assembly, as were considered in this cause:

By the act of 1704, ch. 16, sec. 5, it was enacted, that no person having, or that hereafter shall have obtained, any grant for any lands whereof such person or persons are not the real owners or possessors thereof, and whereupon he, she, or they have already built, or shall hereafter build a water mill, as the law hath before directed, shall have any right, title or claim, to any land granted for any time or term whatsoever, after such mill by him or them already built as aforesaid, or that shall hereafter be built, shall be casually broke, or gone to decay as aforesaid, other than two years from the new erecting, building, finishing and repairing of such mill as aforesaid; but that in all and every case where any person or persons that have already built, or shall hereafter build, any water mill, which are, or that hereafter shall be broke, or gone to decay, as aforesaid, and shall not within two years after the publication hereof, or within two years after such mill shall become broke, or gone to decay as aforesaid, cause the same to be newly built, repaired and finished as aforesaid, it shall and may be lawful for the real owner or owners for such land, to such person or persons so granted as aforesaid, to re-enter upon the same; and in case such person or persons shall refuse, or deny to give the owner or owners of such land as aforesaid, peaceable and quiet possession thereof, such owner or owners shall, and may recover his right to the same by ejectment, or otherwise as the law directs; any thing in this act contained to the contrary notwithstanding.

By the act of 1766, ch. 14, sec. 2, conveyances in order to pass lands, are directed to be enrolled in the records of the same county where the lands lie, or the Provincial Court, within six months after the date of such deed or conveyance; and the Clerk of the Court shall immediately, upon the receipt of such deed, endorse thereon the time of his receiving the same, and enroll the same, &c. And "shall on the back of every such deed or conveyance, in a full, legible hand, make a certificate of such enrollment, or the time of making it, and also of the folio of the book in which the same shall be enrolled, and shall to such certificate set his hand." 

COUNSEL:
R. W. Gill, for the appellant, contended,

1. That the lessor of the plaintiff has shewn that James Norris was seized of the land in controversy on the 9th of June, 1774. 2. That the same land was condemned under a writ of ad quod damnum, and on the 9th of June, 1774, leased by competent authority for a term of 80 years, to a certain Thomas Saunders, under whom the defendant below claimed. 3. That this term not expiring before the year 1854, the lessor of the plaintiff to recover before that period, must shew a forfeiture of the land enuring to him. 4. That by the act of 1704, ch. 16, by which the land was condemned, the only forfeiture of the lease to Saunders, is the mill being casually broken, and going to decay, and not repaired within two years. 5. That the plaintiff's evidence, that the mill erected on the land in controversy, had gone into disuse, does not establish a forfeiture of the lease. 6. That under the true construction of the act of 1704, ch. 16, the [**13]  right of entry mentioned in the 6th section, is exclusively reserved to the real owners of such land, at the time of the right accrued. 7. That James Norris, Jr. under whom the lessors of the claim having but a naked right of entry to the lands in controversy, and for a condition broken, could not assign that right, and therefore the County Court erred in refusing to instruct the jury, that the entry and demand of James Norris, Jr. in the year 1805, was insufficient to entitle the plaintiff to recover. 8. That the right to re-enter on the lands in controversy, if it accrued at all, accrued in the year 1787, and this suit not having been commenced until the year 1818, the right of entry for that forfeiture was barred by the defendant's actual possession. 9. That as Jones claims under a deed, the original of which was given in evidence, and no proof was offered, that the endorsement on the back of the said deed, purporting to be the endorsement of the Clerk of Harford County Court, was, in fact, his endorsement, said deed was inoperative to pass any estate to said Jones, and therefore Jones having no title could not avail himself of Norris's demand and entry. He referred to the act of [**14]  1704, ch. 16, sec. 5. Duppa vs. Mayo, 1 Saund. 413. Ib. 287, (a) note 16. Hammond and Ridgely, 6 Harr. and Johns. 245. 2 Cruse Dig. 553, sec. 28. Runnington on Ejectment, 60.

Flusser, for the appellee, cited, 1 Plowden, 363. 6 Bac. Abr. 383. Coke Lib. sec. 380. 1 Bac. Ab. 638. 2 Blk. Com. 155. Coke. Lit. 203 (b) note (1) 7 Com. Dig. (d) 70. 17 Viner placitum, 1. 1 Shep. Touch. 152. 1 Saund. 213. 3 Cruse Dig. 549. 2 Stark. Ev. 507, 508. Jackson vs. Parker, 3 Johns. Cases, 124. Jackson vs. Thomas, 16 Johns, 293. 1 Cain. Rep. 400.  

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

OPINIONBY:
EARLE 

OPINION:

 [*182]  EARLE J. delivered the opinion of the Court.
This case must be reversed, and returned to Harford County Court on a procedendo. The deed from McComas to Jones, is a link in the chain of the plaintiff's title, and the original was read without offering proof of the hand writing of the Clerk, who endorsed the time it was received into the office, which was indispensable to laying it before the jury. The omission, it is likely, was not observed at 

 [*183]  the trial, but as it is seen by us, and being a case before the act of 1825, ch. [**15]  117, we must notice the error, and make it the ground of a reversal. 7 Harr. and Johns. 42.
As this case is to be tried again, and we have to act upon the bill of exceptions in the record, it becomes our duty briefly to assign our reasons for concurring in the opinions expressed by the Judge who signed it.
The lessor of the plaintiff claims the disputed land under James Norris, the elder, who was the undisputed owner of it in the year 1774, when it was granted to Thomas Saunders, by the lord proprietary, under the ad quod damnum law of 1704, ch. 16, for a term of 80 years, which from efflux of time, is not yet expired. The defendant claims under John Lee Webster, to whom Saunders assigned his lease in the year 1786. The mill erected thereon by Saunders went to decay, and was disused in 1785, and was not rebuilt in the year 1787, within two years thereafter, and by the terms of the law and estate for years granted by the proprietary, then ceased, and the lease became null and void. This being the character of the condition of the lease broken, advantage of the breach may be taken without entry on common law principles, either by the original [**16]  owner, or by the assignee of the reversion. Vid. Duppa and Mayo, 1 Wms. Saund. 287. The re-entry given by the act of 1704, to the owner, was a summary remedy designed for his benefit, and does not alter in this respect the principles of the common law, which restrains the assignment of an entry for a condition broken, where, after the forfeiture incurred, the estate may continue, but allows it, where the violation of the condition puts an end to the estate of the particular tenant. But there was an entry in this case by James Norris, Jr. in the year 1805, and agreeably to the language of the act of 1704, he might have supported an ejectment for the land, without further entry; and his grantee and those claiming under him, are surely in the same situation with himself, and may sue in ejectment, upon their right of entry. It is the case of 

 [*184]  constant occurrence, where a grantor having a right of entry on land, conveys it to another, and therewith necessarily, the power to maintain an ejectment for it.
In the first part of the bill of exceptions, the defendant, the appellant, had prayed the direction of the Court to the jury, that if they believe all the [**17]  matters given in evidence, that then the length of possession holden by the defendant and those under whom he claimed, doth in law bar the plaintiff's recovery of the land, included in the lease to Saunders; this direction the Court refused to give, and we think rightly. We cannot perceive any thing in the facts of the case, that looks like a possession, adverse to the title of the plaintiff, until the year 1805, when on the demand of Norris, Jr. the possession was refused to be delivered to him by the defendant. When the land was enclosed by Saunders, he was confessedly the tenant of Norris, the elder, and it is natural to suppose fenced it in, that he might have the greater enjoyment of it. That the enclosures were kept up by Webster, and his tenants, with the same views, we must presume, where no attempt is made to prove an altered, and adverse intention. If no rent was paid, and the tenancy not expressly admitted, there is nothing to shew that the possession was held in hostility to the rights of the landlord, and those claiming under him. In the absence of this proof nothing is to be presumed in favor of an adverse possession, and more particularly so, where [**18]  it commenced rightfully, and with the consent of the owner. The mere holding over, after the term ended, is not evidence of an adverse possession, and the possessor will be regarded as the tenant at will of the landlord, unless he can shew that since the expiration of the lease, he has held forcibly, or has acquired a title, paramount to that under which the possession was originally taken. Something more than an intimation of hostility in such a case is necessary, and the possessor coming in under the assignee of the lease, as in this case, must be supposed to hold his title.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

4 of 34 DOCUMENTS 

HAMILTON vs. WARFIELD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 482; 1830 Md. LEXIS 38 

June, 1830, Decided 

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

This was an action of covenant upon a charter party of affreightment entered into on the 27th July, 1822, between the plaintiff, now appellant, agent of the owner of the schooner Independence, and the defendant, the appellee, freighter of the said schooner. The said schooner was freighted by the defendant, at and from Baltimore, to any port or ports in the West-Indies, Spanish Main, or ports in the Gulph of Mexico, at the option of the freighter, and back to Baltimore, where the said schooner was to be discharged, the dangers of the seas excepted. The plaintiff covenanted with the defendant, that the schooner, on and during the voyage, should be tight, staunch and strong, &c. That the defendant might load and put on board, and unload and take from the schooner, full loading, of such goods, &c. as he should think proper--contraband goods excepted. In consideration of which the defendant agreed to pay to the plaintiff in full for the freight or hire of the schooner, the sum of $ 200 for each and every month, and so in proportion for a less time, as the schooner should be continued on the said voyage, in ten days after her return to Baltimore,  [**2]  or upon hearing of her loss; and the said defendant did also agree, at his cost and expense, to victual and man the said schooner, and pay all port charges and pilotage during said voyage, and to deliver said schooner, on her return to Baltimore to the said plaintiff or his order, and also to keep her insured. It was also covenanted, that in all cases the period of time for the hire of the said vessel was to commence on the 8th of August, 1822, and end on the day of delivery of the vessel at Baltimore to the agent, or in the event of her total loss, upon the day on which she should be last heard of. The declaration, after stating the charter party, the loading and sailing of the vessel from the port of Baltimore for the port of Chagres, on the Spanish Main; and that from and after the 8th of August, 1822, the defendant had and employed the said schooner in his service for the space of six months, and until the said schooner was lost. That the said schooner was lost while in the service and employment of the defendant, during the voyage mentioned in the charter party, on the 28th December, 1822, at Chagres, on the Spanish Main; of which said loss the defendant had notice on the 10th [**3]  of June, 1823. Averment, that the plaintiff had kept his covenant, &c. and that the defendant had refused to pay him the sum of $ 1200 for the freight or hire of the said schooner, growing due from the 8th of August, 1822, until the loss of the schooner at Chagres, &c. As a further breach, the plaintiff averred, that on the 1st of August, 1822, the defendant took the said schooner into his service--shipped a cargo on board of her, and dispatched her from Baltimore towards the port of Chagres, on the Spanish Main. That the schooner afterwards arrived at the port of Chagres, and was there unladen by the agents and factors of the defendant. That the defendant, in pursuance of the charter party, kept and retained the said schooner in his service for a long time, to wit, from the 8th of August, in the year last aforesaid, until the 28th of December, in the same year; and afterwards the said schooner was stripped of her sails, rigging, &c. and abandoned by the crew, which the defendant had put on board for the care and navigation thereof. Averment, that the schooner was left a wreck, and was then and there totally lost, and was not further employed by the defendant. Of all which the defendant [**4]  had notice before the institution of this suit. And after such notice the defendant became liable to pay to the plaintiff the sum of $ 1000 for the freight and hire of the said schooner from the 8th of August, 1822, until the day of her loss, viz. the 28th of December in the same year, the day on which she was last heard of, in the prosecution of the voyage aforesaid, &c. which said sum of money the defendant had refused to pay, &c.

The defendant, after craving oyer of the charter party, &c. pleaded, 1st. That the said schooner Independence was not, at the commencement of the voyage aforesaid, and was not, during the said voyage, tight, staunch and strong, but was wholly rotten, unsound, defective and unseaworthy, whereby, and not by reason of any of the perils or dangers of the seas in the said charter party mentioned, the said vessel was prevented from arriving at the port of Baltimore on her return voyage, &c. He pleaded, secondly, to the second breach in the declaration assigned, that the schooner Independence, after her arrival at the port of Chagres, and after the delivery of the cargo on the 8th December, 1822, was wholly rotten, unsound, defective and unseaworthy, and [**5]  was so rotten, unsound, defective and unseaworthy from the commencement of her sailing on the said voyage, and had so continued during the whole of the voyage, whereby the said vessel was utterly disabled and incompetent further to prosecute the said voyage, and was prevented from arriving at the port of Baltimore, on her return voyage, from the causes aforesaid, and not by reason of any of the perils or dangers of the seas mentioned in the charter party, &c.

The plaintiff demurred generally to the first plea.

To the second plea he replied, that the said schooner was not wholly rotten, &c. and that she was not prevented by unsea-worthiness existing at the commencement of the voyage, from arriving at the port of Baltimore on her return voyage, &c.

The defendant joined in the demurrer to his first plea, and demurred generally to the replication of the plaintiff to the second plea. The plaintiff joined in the demurrer to his replication to the defendant's second plea.

The County Court overruled the demurrer to the first plea, and ruled good the demurrer to the replication to the second plea, and rendered judgment for the defendant. From which judgment the plaintiff [**6]  appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

H chartered his vessel to W for a voyage to be made at and from B, to any port or ports in the West Indies, &c. and back to B, where the vessel was to be discharged, the dangers of the seas excepted; there was the usual covenant of sea-worthiness on, and during the voyage in the charter party. W agreed to pay a certain sum for each and every month, and so in proportion for a less time, as the vessel should be continued on the voyage--in ten days after her return to B, or upon hearing of her loss; and also agreed, at his cost, to victual and man the vessel, and pay all port charges during the voyage. HELD, that this constituted a charter for one voyage, to commence at B and terminate on the return of the vessel--that pro rata freight was only due upon a loss proceeding from the dangers of the seas,--that the contract was an indivisible one,--and the return of the vessel to B, a condition precedent to the payment of freight. 

COUNSEL:
Gill, for the appellant, contended, that in the construction of charter parties as in other contracts, the intention of the parties to be collected from the instrument, was to guide the Court. In this case, Hamilton let his vessel to Warfield, to perform a voyage to ports not specified in the contract. Warfield was to man and victual the vessel. He was to pay all port charges and pilotage, during the voyage. These covenants shew, that neither Hamilton nor his agents, were to accompany the vessel, as in ordinary cases. Taking intention as the guide, the meaning of the covenant that the vessel was to be kept sea-worthy on and during the voyage, is that Warfield or his agents should do it, at Hamilton's expense. The covenant for sea-worthiness is not a condition precedent, and if any other construction prevails than the one insisted upon, it is still no answer to a claim for freight, when the voyage has been in part performed. The defendant must redress himself by his cross action. 3 Kent. Com. 159. Lawes on C. P. 22, 23, 24, 201. Ritchie' vs. Atkinson, 10 East. 295, 311. Havelock vs. Geddes, Ib. 555.

The contract to pay [**7]  the freight on the return of the vessel, was only to fix the time of payment, and not intended to make her return, a condition precedent to the payment. The doctrines of condition precedent are harsh and unjust. In this case they would operate inequitably. The case disclosed upon the second breach, shews a part performance of the voyage under a charter party, a delivery of cargo at one of the ports selected by the defendant. It shews, that at such port the vessel was stripped of her sails and rigging, and abandoned by the crew, which the defendant had put on board her, for her care and navigation; that the schooner was left a wreck, totally lost, and not further employed. To this breach the defendant pleaded that the vessel was rotten and unsound, during the entire voyage, and was thus prevented from returning. The plaintiff replied that the vessel was sea-worthy, at her departure from Baltimore, and was not prevented by any defect existing at the commencement of the voyage from returning. This case stands upon demurrer. The facts admitted by the pleadings are, that the schooner left Baltimore in good condition; that afterwards she became unfit to prosecute her voyage, either from [**8]  the circumstance that Warfield's crew stripped and abandoned her, and left her a wreck, or from decay arising after a commencement, and consequently, after a part performance of the voyage. Now, if the rule be sound, that unsea-worthiness arising after the commencement of the voyage, is no answer to a claim for freight, or if, as it is contended here, it was the duty of Warfield at Hamilton's expense, to put this vessel in order at Chagres, and it is believed that the last proposition cannot in this case be questioned, then Warfield ought to pay freight up to the time of abandoning the vessel. It was his default, that his crew abandoned, and technically wrecked this vessel in a foreign port. It was his default that the necessary repairs were not attempted, and the vessel put in a condition to return. The agreement to pay freight on the return of the vessel to Baltimore, never was intended to affect such a state of facts as the pleadings disclosed. That agreement anticipated the voyage to be performed in the ordinary way.

It is contended also, that pro rata freight is due in this case, because the vessel is in fact lost to Hamilton, and that, by the negligence of Warfield and his [**9]  agents. The words upon hearing of her loss, do not necessarily mean a loss by the dangers of the seas. She might be lost in many other ways, and Hamilton could elect either to make Warfield pay for the loss of the vessel or for freight--Suppose she was sunk by the guns of a foreign fort for smuggling--Suppose her burnt by an insurrection in a foreign country--or by Warfield's agents; can it be successfully contended that it was the intention of these parties, upon such unexpected contingencies, that Warfield was not to pay for the use actually made of the vessel? Would Hamilton have parted with his property on such terms? We think not; and the conclusion from this is, that Warfield cannot escape the payment of freight for the time actually employed, by a defence which shews that in point of law, the further prosecution of the voyage was prevented, either by the direct tort of his own agents, viz: the stripping of the vessel--or by the omission to perform the duty of repairing the vessel at Hamilton's expense, which the contract in its spirit imposed upon him. There are strong reasons why the return of the vessel should not be considered a condition precedent to the payment of freight.  [**10]  It would be a rule of unequal operation in this case. It is on one hand a total loss to Hamilton, on the other it may be no loss, perhaps a gain to Warfield to discharge himself from the vessel in a foreign port. His property abroad may be unsaleable, he may have converted his property into bills of exchange. It may be that commodities proper for a return cargo cannot be had. These are circumstances which experience and the universal understanding of mankind prove to exist. It is therefore entirely doubtful whether Warfield was injured to the extent of the freight claimed. When the cases arise which exhibit a certain loss to one party, and which make it uncertain whether his opponent has lost or gained, that construction of the contract, which defeats the action to the prejudice of the party certainly injured, ought not to prevail. The Court presuming both to be honest men, will not hold that they intended consequences thus unequal. It is no answer to this, that the state of the fact, rather than the contract would give the rule of law. From that it is impossible always to escape; it is a mixed question, and must be so, in every case where an unexpected contingency arises. It is the [**11]  duty of a Court then to survey the whole ground, and apply the honest and rational intent, according to the best understanding of the equities of the parties. This is not departing from the rule which says the Court must look to the contract in construing it. It is merely applying the contract to the facts which have arisen since its execution, and declares that in such a case the contract fairly interpreted, says you intended to pay, and in such a case it says you did not intend to pay. In discharging this duty the equities of the parties are not to be disregarded. And there is no rule more substantially just than that, which refers plaintiff and defendant for breaches of covenant after part performance to their respective cross actions. He cited, Havelock vs. Geddes, 10 East. 567. Hallett vs. Col. Ins. Co. 8 John. 272. Laws on C. P. 162. 3 Kent. 157.

Taney, (Attorney General) for the appellee.

1. The contract in this case, was to not pay so much per month, but was for an entire sum, for an entire voyage out, and back to Baltimore; Abbot on Shipping, 360, (Ed. 1828) 362, 364. 10 Petersd Abr. 147--155.

2. The covenant to pay so much per month, for the voyage, on the [**12]  return of the vessel, or in ten days after notice of loss, (the dangers of the sea excepted,) means a loss technically by the dangers of the sea, and a total loss. If the loss results from any other cause, the freight is not recoverable; being an entire voyage, the freight is payable on two contingencies; first, upon the return of the vessel; or secondly, upon her total loss, by the perils of the sea. These being conditions precedent, (Abbot on Shipping, 329, note (1) (Ed. 1828.) to entitle the plaintiff to a pro rata freight, the loss must not only be total, and irreparable, but also by the dangers of the sea, unless caused by the defendant, or his agents. To show the meaning of a loss by the perils of the sea, he referred to 5 Petersd. 378, 379.

The plea to the first breach laid in the declaration is, that the vessel was unseaworthy at the commencement of the voyage, and that thereby, the voyage was defeated; this plea the demurrer admits to be true. In support of it he referred to Abbot, 252, 253. The question upon this plea is, whether in the case of an entire voyage, a party can recover freight, who stipulates for the sea-worthiness of his vessel, when he admits that voyage [**13]  to have been defeated by unseaworthiness.

In support of the defendant's demurrer to the replication to the second plea, he referred to, 10 Petersd. 146, (note) Ib. 151.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*490]  MARTIN, J. delivered the opinion of the Court.
It appears from the charter-party relied on in this case, that the schooner Independence was chartered by Warfield, to perform a voyage at and from Baltimore, to any port or ports, in the West Indies, Spanish Main, or in the Gulph of Mexico, and back to Baltimore. The intention of the parties where it can be fairly obtained from a charter-party ought to prevail in its construction, and we think it is manifest from the terms of the agreement, that this constituted but one voyage, to commence at and from Baltimore, and to terminate on the return of the vessel to the same place: It is agreed in express terms that the freight should be $ 200 a month, for the time the vessel was performing this voyage, to be paid in ten days after her return to Baltimore. We do not take into consideration that part of the charty-party, that allows [**14]  a pro rata freight for the time the vessel was engaged in the voyage, in case of a total loss, because we think it forms no part of this case, that relates only to a loss, proceeding from the dangers of the sea. The cases referred to in the argument to shew a covenant, that a vessel forthwith be made tight, staunch, and strong, &c. is not a condition precedent, and if the freighter uses the vessel he shall be chargeable with freight pro rata, &c. would have great weight, where the case rested upon such a covenant alone, but in this charter-party the stipulations are, not only that the schooner on, and during the said voyage, should be tight, &c. but also that the freight should be paid in ten days after the return of the 

 [*491]  vessel to Baltimore. The question then upon which this case depends, and upon which it must be decided, is, whether under this charter-party, the return of the Independence back to Baltimore is a condition precedent to the payment of freight? Upon examining the English authorities, many nice, and almost imperceptible distinctions, may be found upon the doctrine of freight pro rata iteneris, but it seems to be [**15]  settled, that where freight is to be paid after the return of the vessel from her destined voyage, her return is a condition precedent, and no freight is demandable, until that condition is performed. Here is a contract between the parties, in writing, under seal, and the terms of their agreement expressed in plain and unambiguous language. It cannot, we think, be doubted, that it was the clear intention of the contracting parties, that Warfield should have the benefit of the whole voyage, at and from Baltimore, and back to the same place; and this voyage being performed he was in ten days afterwards to pay the freight; this is an indivisible contract, the freight depending upon the performance of the whole voyage, and by the express agreement of the parties, not to be demandable until after the vessel should return to Baltimore; if the vessel was lost by the dangers of the seas, then a pro rata freight was to be allowed, and paid in ten days after the loss was ascertained; but if no injury was sustained from that cause, the whole voyage was to be performed, and then, and not till then, the charterer had a legal claim for freight. The case of Smith vs. Wilson [**16]  , 8 East 437, is an authority in point to sustain this case on the part of the appellee. That was an action to recover freight on a charter-party of affreightment, not exactly similar in all its provisions to the one now before us, but sufficiently so, to decide the question upon which this case depends. In the reported case, among other covenants not necessary to be here enumerated, it was stipulated that the ship being properly fitted, &c. should receive or take on board at London or Portsmouth, such goods as the freighter might think proper to ship, and should said and proceed 

 [*492]  therewith to Monte Video, &c.; and being arrived there, should give due notice thereof to the agents of the freighter, and make a right and true delivery, &c. and after such delivery should receive and take on board from the freighter, or his agents, &c. a full and complete cargo of lawful goods, and immediately set sail from thence, and proceed to some one port of discharge in Great Britain, &c. and there deliver the said cargo, &c. and there end his said intended voyage, (the act of God, the King's enemies, and the dangers of the sea excepted,) in consideration whereof the freighter [**17]  covenanted that he would pay £  670 sterling per month, for every calendar month the ship should be employed by him, during the said intended voyage to Monte Video and back to her port of discharge, and so in proportion for any less time, in full for the freight, or hire of said ship during her intended service; such freight to commence from the day the ship should be ready to receive the goods on board at Portsmouth, and end when she should have finally discharged the whole of her said cargo, &c. such freight, &c. to be paid on the arrival of the said ship at her destined port in Great Britain. The ship took on board a cargo at Portsmouth and commenced the voyage, but from causes stated in the report, never did arrive at her destined port in Great Britain. The Court decided that by the terms of the charter-party, the freight, &c. thereby covenanted to be paid, on the part of the defendant, are all of them expressly covenanted to be paid, on the arrival and discharge of the ship at her destined port in Great Britain; and of course, are made to depend on the event of such arrival and discharge, at her destined port in Great Britain, as a condition precedent [**18]  to the plaintiff's right to demand the same. This doctrine is recognized by Lord Ellenborough, in Ritchie vs. Atkinson, 10 East 308,--he says where, as in Smith and Wilson, the freight is made payable upon an indivisible condition, such as in that case, the arrival of the ship with her cargo at her destined port of discharge; such arrival, &c. must be a 

 [*493]  condition precedent, because it is incapable of being apportioned, Cook vs. Jennings, 7 Term. R. 381. We are of opinion, that as the schooner, Independence did not return back to Baltimore, within the terms of the charter-party, the freight claimed, never became demandable by law.
JUDGMENT AFFIRMED.  

5 of 34 DOCUMENTS 

THE MAYOR AND CITY COUNCIL OF BALTIMORE, vs. ANN CHASE, et. al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 376; 1830 Md. LEXIS 26 

June, 1830, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery.

This petition, which was filed on the 27th October, 1826, by the appellants, stated, that certain taxes due to them for the year 1821, upon certain real estate in the city of Baltimore, (and which was then in the hands of a receiver, appointed by the Court of Chancery, in the case of Hannah K. Chase, against the appellees,) amounted to the sum of $ 156. That said taxes were duly imposed by ordinances, passed in virtue of the act of incorporation of The Mayor and City Council of Baltimore, and the several supplements thereto. They therefore prayed that the said receiver, out of the rents and profits of said estate, be authorized and directed by an order of the Court, to pay the said sum of money, with interest thereon, from the 1st day of January, 1822.

On this petition, Bland, Chancellor, passed the following order, March 23, 1827: On the aforegoing application, it is ordered that the receiver in the said case, pay out of the first money received by him, as receiver, the sum claimed by this petition, unless cause to the contrary be shewn by the parties to the said cause, before the 16th day of May next: Provided a copy of this order, and [**2]  the aforegoing petition, be served on the said parties, or their solicitors, before the 16th of April next.

The defendants, Ann Chase, Matilda Ridgely and Samuel Chase, to this petition, pleaded non assumpsit, and the act of limitations, and by their answer denied that the appellants have any just or equitable claim, or lien, or charge whatever on the premises in the proceedings mentioned, which can be decided in a Court of Chancery; and they insisted, that if the appellants have any claim at all against them, it is a legal claim, and properly examinable in a court of law.

The petitioners filed their account for the said taxes, with the affidavit of the collector of the city tax annexed, that the bill for the same was duly delivered, and that no part thereof has been paid, or satisfied, but that the whole is still due and owing to the said petitioners; and also a copy of the assessment of the property, and of the ordinances imposing the taxes and tax bill, all under the corporate seal.

BLAND, Chancellor, (June 28th, 1827.) After hearing the parties by their solicitors, and considering the petition, plea or answer thereto, and proceedings, I am of opinion that the case [**3]  set forth by the petition is not one of such an equitable character as falls within the cognizance of this Court. Whereupon it is ordered, that said petition be dismissed with costs.

From this order the petitioners appealed to the Court of Appeals.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

C filed a bill in Chancery to recover dower in certain real property, upon which that Court appointed a receiver to receive the rents and profits pending the controversy. After this, The Mayor and City Council of Baltimore filed their petition against the receiver, praying to be paid for taxes due on said property prior to the time of the receiver's appointment, out of the rents which had come to his hands. The petition did not aver that there was no personal property of the tenant in possession to be found sufficient to pay the taxes charged, nor was the tenant in possession at the time the taxes became due, who, by law, is chargeable with their payment, made a party. HELD, that they could not recover.

It is a well settled principle, that the Court of Chancery will not order a receiver to pay over, or account for the rents and profits to a party, when the land is not charged with the payment of his claim.

In the collection of taxes imposed upon real estate within the city of Baltimore, for the year 1821, the ordinances of that city imposing them, having referred to the Laws of the State, for the manner of collecting them, the land can never be sold for their payment, unless the Collector can find no personal property liable for the payment of the tax. If personal property can be found, it must be made liable in the first instance. 

COUNSEL:
Scott, for the appellant, contended, 1. That the taxes mentioned in the petition were duly imposed and chargeable upon the premises, in the proceedings referred to in the case of Hannah K. Chase vs. the appellees, in which the said petition was filed. 2. That the rents and profits of the property were the proper fund out of which the said taxes should have been paid. 3. That those rents and profits being in the hands of a receiver, theretofore appointed by the Chancellor in the said cause, and under the control of the Court of Chancery, that the Chancellor should have directed the payment of the taxes by the receiver, out of rents and profits of the estate, and erred in dismissing the petition of the appellants. He referred in his argument to the acts of 1796, ch. 68. 1817, ch. 148. 1817, ch. 195. 1818, ch. 122. The Ordinances of the Mayor and City Council of 1821, ch. 20. 1821, ch. 37. The Act of 1825, ch. 184.  [**4]  1 Cov. Pow. on Mortg. 294, (note) 299, (a) 299, (b) 302, (a.) The Act of 1817, ch. 148, sec. 4.

A. C. Magruder, for the appellees, contended, 1. That the Court of Chancery has no jurisdiction to collect taxes for the city of Baltimore. The Court might, perhaps, have entertained the petition, if the application had been to pay taxes accrued while the premises were held by the receiver, but here they accrued before his appointment. 2. The taxes were disputed, and there is no evidence that they were due. The affidavit of the collector, and the certificate of the assessment, &c. under the corporate seal, is not such evidence as the act of 1825, ch. 184, requires. 3. But the party in possession of the premises in 1821, when the taxes accrued, was the proper person to pay them, and who he was does not appear. 4. By the act of 1797, real estate is made subject to be sold for taxes, where the personal is insufficient; but only when its requisitions are fully complied with, of which there is no proof in this case.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*378]  STEPHEN, J. delivered the opinion of the Court.
The object [**5]  of the petition filed in this case, was to recover certain taxes due to the corporation of the city of Baltimore for the year 1821. Some time prior to the filing 

 [*379]  of the petition in this case, a bill was filed in the high Court of Chancery by Hannah Kitty Chase, against these defendants, and others, for the purpose of recovering her right of dower in the property upon which the tax was imposed. In that case the Chancellor thought fit to appoint a receiver, to receive the rents and profits pending the controversy between the parties. This receiver was appointed in the year 1826, long subsequent to the time when the taxes became due. The petition prayed the Chancellor to pass an order authorizing and directing the receiver to pay the said taxes, amounting to the sum of $ 156, with interest thereon from 1st January, 1822. On this petition the Chancellor passed the order, and the proceedings before set forth took place.
In the first place it will be remarked that it is not averred by the petition that there was not personal property upon the premises sufficient to pay the taxes charged, nor is the tenant in possession at the time the taxes became due, made a party to [**6]  the proceedings. By the act of 1796, ch 68, to erect Baltimore town into a city, the corporation are vested with power to lay and to collect taxes, and to pass all ordinances necessary to give effect and operation to all the powers vested in the corporation of the city of Baltimore. This power and jurisdiction to lay taxes, was, by the act of 1796, subject to a limitation, as therein prescribed; which restriction, however, is removed by the act of 1817, ch. 148, sec. 4, by which it is enacted "that the Mayor and City Council of Baltimore shall have power to lay and collect direct taxes, on the assessment of private property within the city, to such an amount as shall be thought necessary for the public or city purposes; and may enforce the collection of all dues and impositions, except fines, penalties and forfeitures, in the same manner as is now provided with respect to city taxes; and tenants in possession shall be liable to the payment of taxes imposed upon premises occupied by them, without its operating however to alter the nature of contracts between landlords and tenants."

 [*380]  Under these delegated powers, the taxes in question were imposed [**7]  by ordinances passed in 1821, Chs. 20 and 37. Sec. 3 of Ch. 20 provides that the taxes imposed by that law shall be collected and paid in the manner prescribed by the laws of the State, or ordinances of this corporation; and sec. 1 of Ch. 37, provides that the said direct tax shall be paid and collected in the manner prescribed by acts of Assembly, or ordinances of the city. By the 10th sec. of the act of incorporation, it is enacted "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; but no sale shall be made, unless ten days previous notice thereof be given; and if the tax imposed shall be chargeable on any real property, and no goods or chattels can be found, liable to be distressed therefor, the same may be recovered by action of debt, or attachment in Baltimore County Court, in which no imparlance shall be allowed." By the provisions of this section, it is clear that no power is given to sell the land, but the collector is to recover the tax by distress of the goods and chattels of the person [**8]  chargeable with the tax, who, we have seen by the act of 1817, before referred to, is the tenant in possession of the property upon which the tax is imposed. The several ordinances imposing the taxes in question, having referred to the laws of the State for the manner of collecting them, it becomes necessary to advert to the several acts of Assembly upon that subject. By the act of 1794, ch. 53, sec. 1, the Levy courts are directed to appoint a collector for the several counties, to collect the county charges; and the 7th sec. provides, "that if any collector shall proceed to the sale of any goods or chattels, to enforce the payment of the county charge, he shall be entitled to receive the same fees as are, or shall be established by law, on the service of executions." The act of 1797, ch. 90, provides "that where any lands may become charged for the payment of county taxes, and 

 [*381]  the collector of the county can find no personal property in said county liable for, or chargeable with, the payment of the same, the land, in the manner therein specified, may be sold, by order of the commissioners of the tax, to the highest bidder, to discharge the taxes thereon [**9]  due." By the provisions of this act of Assembly, it appears that the land can never be sold for the payment of taxes for which it is charged, unless the collector can find no personal property liable for the payment of the tax. If personal property can be found, it must be made liable in the first instance. As therefore, the petition in the case does not allege that there was no personal property which could be made liable, it follows necessarily that no ground was furnished by it, for the interposition of a court of equity; and the Chancellor was clearly right in refusing the application to compel his officer to pay the same out of the rents and profits received by him. It is also clear, upon established principles, that the tenant in possession, who by law is chargeable with the payment of the tax, ought to have been made a party, for the purpose of ascertaining whether or not the tax had been paid; on the same ground as has been decided by this Court, that the executor or administrator must be made a party where a Court of Chancery is resorted to for a sale of the real property, for payment of debts, where the personal fund is charged to be insufficient for that purpose.  Tyler, et al. vs. Bowie's Adm'rs, 4 H. & J. 333. [**10]  It is also a well settled principle, that the Court of Chancery will not order a receiver to pay over, or account for the rents and profits to a party, where the land is not charged with the payment of his claim. As where there was a mortgage for one hundred years, to raise portions for daughters. After the expiration of the mortgage term, the Court would not compel the receiver to account for the rents and profits received during the term, after it had expired, the land being then discharged. To entitle themselves to be paid in this case by the receiver, 

 [*382]  it was necessary to shew by their petition, that they had a right to proceed against the land to satisfy their demand.  Gusley vs. Adderley, 1 Swanst. 573.
DECREE AFFIRMED.  

6 of 34 DOCUMENTS 

PENNINGTON, Adm'r of PATTERSON, vs. GITTINGS, Ex'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 208; 1830 Md. LEXIS 9 

June, 1830, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Chancery.

The bill in this case was filed on the 18th of April, 1823, in Baltimore County Court, by Ann Patterson, the appellant's intestate, against the appellee, James C. Gittings, as executor of James Gittings. Afterwards the proceedings were, at the instance of the complainant, transmitted to the Court of Chancery on the 5th day of October, 1825. The bill stated that James Gittings, the father of complainant, late of Baltimore county, duly made his last will and testament, with a codicil thereto annexed, bearing date, the former on the 16th of September, 1818, the latter on the 6th day of November, 1820, and thereby amongst other things gave and bequeathed unto the complainant certain bank stock, and ground rents, and after giving some other legacies, the testator appointed Richard Gittings, Archibald Gittings, and James C. Gittings, his executors, and declared the said James C. Gittings his residuary legatee. That the said testator died on the 15th of February, 1823, without revoking said will, save by his codicil, and without revoking said codicil; whereupon the said Richard and Archibald Gittings, renounced the executorship, and the said James C. Gittings,  [**2]  the remaining executor, and residuary legatee, duly proved the said will, and undertook the execution thereof, as appears by exhibit A, filed as a part of the bill. That said executor took possession of the personal effects of the testator, to an amount more than sufficient to pay his debts, funeral expenses, and legacies. That said testator, about two years before his death, gave to complainant the ground rent, arising from property in the city of Baltimore, worth, at the time of the donation, $ 260 per annum. That in consequence of the depreciation in said property during the life of the testator, the complainant advised with a certain Edward Palmer, as to the course necessary to be pursued by her to repair the loss occasioned by such depreciation, and that Palmer, in conversation with said testator a short time before his death, was told by him that he was sorry the complainant had lost her said ground rents, and that something should be done for her. That soon after the aforesaid conversation, the complainant visited the testator at his residence, and that, on that occasion the testator gave, and handed to her, certificate No. 446, Commercial and Farmers' Bank of Baltimore, entitling [**3]  the holder thereof to 75 shares of the capital stock of the said bank, as will appear by exhibit B. That said testator, at that time, and in her presence, endorsed his name on said certificate, informing her that he gave her the same, to supply the loss of the ground rent. That since the death of the testator, complainant has requested his said executor to transfer the said stock to her, which he refuses to do. Prayer, that he may be compelled to transfer the same, and for further relief.

EXHIBIT A, is a certificate of the Register of Wills of Baltimore county, of the granting of letters testamentary to the defendant.

EXHIBIT B, is as follows: "Commercial and Farmers' Bank of Baltimore, No. 446. February 9th, 1819--This is to certify, that James Gittings, Sen. is entitled to seventy-five shares in the capital stock of the Commercial and Farmers' Bank of Baltimore, on each of which thirty dollars have been paid, transferable at the said Bank only, personally, or by attorney.     Geo. T. Dunbar, Cashier."

75 shares.

The answer of James C. Gittings states, the testator, James Gittings, the father of complainant, did, about the time mentioned in the bill, duly make [**4]  his testament and last will, whereby he did devise and bequeath certain property to the complainant; and after making various other devises and bequests in favor of his other children, and grandchildren, he declared this defendant his residuary legatee, and constituted him, together with Richard Gittings and Archibald Gittings, joint executors thereof. The answer admits the death of the testator about the time specified, the renunciation of the other persons named as executors, and that he the defendant undertook himself the exclusive execution of said will, which he proved; and that he took possession of the personal estate of the testator, which he admits was more than sufficient to pay his just debts and legacies; the answer further admits the donation of the ground rent as charged, and a depreciation in the annual value thereof; it alleges that Palmer called on the testator, and in the presence of respondent mentioned the depreciation of the ground rent; that it then yielded nothing, and proposed to testator to take the ground rent back, and to give the complainant stock in lieu of it, which she would prefer; to this the testator replied, that it was too late, he had made his will,  [**5]  and could not alter it; the answer denies that the testator gave or intended to give to complainant the certificate for seventy-five shares of stock in the Commercial and Farmers' Bank, as alleged, and puts the complainant on the proof of the allegation; it denies also the delivery as stated; expresses a doubt of the genuineness, of the endorsement of the name of James Gittings thereon, and supposes that the same was made a considerable time before his death. The defendant acknowledges that he refused to transfer the stock, from a conviction that complainant had neither a legal nor equitable title thereto.

A commission issued, under which proof was taken and filed, but the same does not appear to be material.

BLAND, Chancellor, (11th June, 1827.) This case standing ready for hearing, and the solicitor of the plaintiff having been heard, and no counsel appearing for the defendant, the proceedings were read, and considered.

The answer is fully responsive to the bill. The defendant has positively denied every allegation, upon which the plaintiff has rested her equitable pretensions, and the proofs and circumstances are too feeble to sustain the plaintiff's case, in opposition [**6]  to an answer so clear, and strong: Whereupon, it is decreed that the bill be dismissed with costs.

From which decree the complainant appealed to this Court.  

DISPOSITION:
DECREE AFFIRMED, WITH COSTS.  

HEADNOTES:

The answer of an Executor or Administrator in his representative capacity, which asserts a fact that is not, and cannot be within his own knowledge, does not properly come within the general rule, that an answer asserting a fact responsive to the bill can only be disproved or outweighed by the testimony of two witnesses, or one, with pregnant circumstances.

When an executor or administrator answering in his representative character, alleges facts of which he can have no personal knowledge, it can but amount to an assertion of his impressions, and his speaking positively cannot alter the character of his testimony, merely because it comes in the shape of an answer, but must be allowed its due weight only; and is not entitled to the full influence of the answer of a man, speaking of facts which may be within his own knowledge.

The gift by a father to his child of a certificate, that the father is entitled to a certain number of Shares in the Capital Stock in a Bank "transferable at the said Bank only, personally, or by Attorney," signed by the Cashier of the Bank, and endorsed in blank by the father will not sustain a bill in equity by the donee against the executor of the donor, praying for a a transfer of the stock mentioned in the certificate.

Neither a donatio inter vivos, nor a donatio mortis causa, can be by mere parol. The rule of law in either case is, that a delivery of the thing intended to be given, is essential to the perfection of the gift.

The delivery must be according to the manner in which the particular thing is susceptible of being delivered; and that which is not capable of being delivered is not the subject of a donation. There must be a parting by the donor, with the legal power and dominion over it. If he retains the dominion, if there remains to him a locus penitentioe, (which must be the case, where he retains the possession, and what is done, is merely by parol,) there cannot be a perfect and legal donation.

A gift which is not good and valid at law, cannot be made good in equity.

The consideration of natural love and affection is sufficient in a deed, but a mere executory contract, cannot be supported on the consideration of blood, or natural love and affection. There must be something more, a valuable consideration, or it is not good, and cannot be enforced at law, but may be broken at the will of the party.  

COUNSEL:
Winchester and Mayer, for the appellant, contended,

1. That the answer is not fully responsive to the bill, and does not deny the allegations of it, so positively and directly, as to require the evidence of two witnesses, or one and circumstances to overthrow it. 2. That the rule in reference to answers should not be applied to this; if the representative capacity of the appellee, and the circumstances of the case be considered. 3. That the fact of Mrs. Patterson's possession of the certificate endorsed by the testator, proved the delivery of it; and that the certificate so endorsed, amounts to an equitable transfer of the stock, and considered with the evidence in the cause, entitled the complainant to a decree in her favor, even admitting the answer to be fully responsive, and to deny the equity of the complainant.

On the 3d. point they referred to Reed vs. Ingraham, 3 Dallas, 505. 1 Cranch, 438, 439. Roberts vs. Gibson, 6 Harr. and Johns. 128. 1 Campb. 442. Russell vs. Langstaff,  [**7]  Douglass, 514. Violett vs. Patton, 5 Cranch. 142. 2 Stark. 308. 3 Stark. 1642. 3 Campb. 239. Peacock vs. Rhodes, 2 Douglass, 633. Wilkinson vs. Nicklin, 2 Dallas, 396. Dugan vs. United States, 3 Wheat. 172. Chitty on Bills, 173, 174.

On the 1st. and 2d. points they referred to Ringgold vs. Ringgold, 1 Harr. and Gill, 82. Newell vs. Huntington, 1 Johns. Ch. Rep. 107. Kane vs. Bloodgood, 7 Johns. Ch. Rep. 110. 9 Cranch. 153, 160.

They insisted that the gift of the stock would be good, as a donatio mortis causa. Ward vs. Turner, 2 Ves. Sr. 432, 442. 3 Atk. 215. Hill vs. Chapman, 2 Brown Ch. Rep. 613. Blount vs. Burrow, 4 Ib. 72. Pember vs. Mathers, 1 Ib. 52.

Taney, (Att'y Gen'l.) and U. S. Heath, for the appellee.

The answer is responsive to the bill, and denies the gift of the stock, as well as the certificate, and it concludes its denial by calling on the complainant to prove her allegations. There is no proof that the endorsement on the certificate was made at the time of the alleged delivery, and unless that was the case, the endorsement can have no legal effect. If a bill had been filed against the testator to compel a transfer of the stock, a decree for that [**8]  purpose could not have been obtained; how then can one be had against his executor? But suppose the allegation in the bill is proved, that is, suppose the certificate was actually endorsed, and delivered for the purpose of a donation, can the complainant recover? A contract between testator and complainant is not pretended, no consideration is charged or proved, and if there is any contract therefore, it is a contract to give, which is nudum pactum and void. To constitute a good gift of a chattel, there must be an actual delivery of the thing given, in pursuance of the gift. 2 Black. Com. 441. Smith vs. Smith, 2 Strange, 955. Noble vs. Smith, 2 Johns. Rep. 52. The stock, the subject of the supposed gift in this case, is a chattel; and a delivery of the certificate is not a delivery of the stock, which is a fund in bank, of which the certificate is not even a muniment of title. By a delivery of the certificate, dominion over the stock is not transferred; the party notwithstanding is entitled to the dividends, and may cause a transfer to be made on the books of the bank; he cannot therefore be said to part with the property. 8 Petersdorf, 464. A delivery of South Sea annuities, by way [**9]  of donation, does not divest the donor of his title to the stock. Ward vs. Turner, 2 Ves. Sr. 431. Mary and Jane Tate vs. Hilbert, 2 Ves. Jr. 111. Bryson vs. Brownrigg, 9 Ves. Jr. 1. Powell on Mort. 1028, Coventry's Edition (note.) Noble vs. Smith, 2 Johns. Rep. 52. Fink vs. Cox, 18 Ib. 145. Considering the certificate as a negotiable instrument, and admitting that the endorsement of the testator's name gave the appellant the right to write what she pleased over it, still this right is limited to the life of the testator. 2 Ves. Jr. 121; his death would be a revocation of the power. There is no distinction, in regard to the necessity of delivery between gifts inter vivos, and mortis causa. In both cases the gift is not good, unless the thing given be itself actually delivered. 3 Cov. Powell, 1027, note (E.) Ward vs. Turner, 2 Ves. Sr. 431. Gifts which are invalid at law are equally so in equity. 3 Cov. Pow. 1029. 2 Ves. Jr. 128. But the very fact of their filing a bill in Chancery, shows the impression to have been that the gift was not good at law. This however is not a good gift either at law or in equity. The thing here alleged to be given is not tangible, and cannot be corporeally [**10]  delivered. It cannot be transferred by gift therefore, unless by some act which gives to the donee complete dominion over it. Stock being the subject of the gift, there should have been a formal transfer. Cov. Powell, 1027, note (1) 1028. The stock in this case was certainly not transferred; to effect that, is the object of the bill. The delivery of a note does not transfer the property, 2 Ves. Sr. 443, 444. Chitty on Bills, 3, note (B,) and although the endorsement of it may, certainly the endorsement of a certificate of stock, cannot have that effect, since the paper itself shows it to be transferable in a different way.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*215]  BUCHANAN, Ch. J., delivered the opinion of the Court.
The bill was filed to compel the defendant, the executor of James Gittings, to transfer to the original complainant, Ann Patterson, daughter of the testator, seventy-five shares of stock, of the Commercial and Farmers' Bank of Baltimore; a certificate of which, it alleges, was given and delivered to her by the testator, who, it is stated, endorsed his name on the back of the certificate [**11]  in her presence, and at the same time informed her that he gave her the stock.
The answer admits the name of the testator, endorsed upon the certificate to be in his hand writing, but denies that he gave or intended to give the certificate of stock to Ann Patterson, as alleged, and puts the complainant on proof of the allegation; and denies also the delivery of the certificate as stated. It may not perhaps be amiss here to remark, that the answer of an executor or administrator in his representative capacity, which asserts a fact that is not, and cannot be within his own knowledge, does not properly come within the general rule, that an answer asserting a fact responsive to the bill, can only be disproved or outweighed by the testimony of two witnesses, or one with pregnant circumstances. A plaintiff, by calling on the defendant to answer the allegations in his bill upon oath, makes the answer evidence; and as one witness would only be equivalent to the answer, and the plaintiff to prevail must have preponderating proof, it is necessary that he should have another witness, or circumstances in addition to the testimony of one, in order to turn the scale. But looking to an answer [**12]  as testimony only, it must be treated as any other testimony, and the weight of it must, from the very nature of evidence, in some degree depend on the fact it asserts. Therefore when an executor or administrator answering in his representative character, alleges facts of which he can have no personal knowledge, it can but 

 [*216]  amount to an assertion of his impressions; and his speaking positively cannot alter the character of his testimony, merely because it comes in the shape of an answer, but must be allowed its due weight only; and is not entitled to the full influence of the answer of a man, speaking of facts which may be within his own knowledge. And upon the obvious principle, that when a witness asserts a fact, of which further developments in the course of his examination prove him to be in a situation to prevent his having a full knowledge of the subject, his testimony is not entitled to the weight of that of a man swearing to facts, which may be fully within his knowledge. The answer in this case, is of that description; and is not, we think, such as to require the testimony of two witnesses, or one with circumstances to outweigh it. But as it does not admit the allegations [**13]  in the bill, it puts the complainant on proof, and leaves him to sustain them as he can, unembarrassed by any supposed responsive features, of the answer. Under the view however, that we had taken of the case, it is not necessary to examine whether the allegations in the bill have been sufficiently established or not, by the proof in the cause. For supposing them to be fully proved, it does not appear to us that the object of the bill can be gratified. The alleged gift seems to have been intended as a donatio inter vivos; but whether a donatio inter vivos, or donatio mortis causa, makes no difference. Such a gift cannot be by mere parol. The rule of law in either case is, that a delivery of the thing intended to be given, is essential to the perfection of the gift. This is admitted; indeed it cannot be denied. As to donations inter vivos, it has never been doubted, that delivery of the thing intended to be given is indispensable; and the same principle is now equally well settled in relation to donations mortis causa. The delivery must be according to the manner in which the particular thing is susceptible of being delivered; and that which is not capable [**14]  of being delivered is not the subject of a donation. There must be a parting by the donor with the legal power 

 [*217]  and dominion over it. If he retains the dominion, if there remains to him a locus penitentioe (which must be the case, when he retains the possession, and what is done, is merely by parol,) there cannot be a perfect and legal donation, and that which is not a good and valid gift in law, cannot be made good in equity.
Proceeding upon this principle, the relief sought in Mary Tate vs. Hilbert, and Jane Tate vs. Hilbert, 2 Ves. Jr. 112, was refused where a man, a short time before his death, gave one a check on his banker, which was no presented before his death, and to the other a promissory note, both of them being his relations. They were strong cases, particularly that of the check, which, if it had been presented before the death of the deceased, would have been paid, the banker having sufficient funds in his hands.
But the money, the thing that was intended to be given, not having been delivered, they were not good and available donations in law; the promissory note and the check being only evidences of contract, they did not transfer [**15]  the possession of the money, nor invest the persons to whom they were respectively given, with the legal dominion over it, which continued in the deceased until his death, when the property vested in the executors. A promissory note delivered as a donation, is not a vested gift of the money, but only a promise or engagement to give; and imposes no stronger obligations, nor affords a better ground of action, than a promise to deliver any chattel as a gift. Such intended donations cannot be enforced on the consideration of blood, which has been insisted on in this case, and was probably a leading motive with the defendant's testator; in the cases referred to, in 2d Vesey, Jr. 112, Mary Tate and Jane Tate being stated to have been his relations.
The consideration of natural love and affection is sufficient in a deed; but a mere executory contract, that requires a consideration, as a promissory note, cannot be supported on the consideration of blood, or natural love and affection there must be something more; a valuable consideration, or 

 [*218]  it is not good and cannot be enforced at law, but may be broken at the will of the party. And being void at law for want of a [**16]  sufficient consideration, Chancery cannot sustain and enforce it. The cases of Mary Tate, and Jane Tate vs. Hilbert, have been mentioned as striking cases, in which the Lord Chancellor manifested a strong desire, more than once expressed, to grant the relief prayed; a desire not foreign from us, so far as sitting here we are permitted to entertain it, but we are, as he then was, restrained by the settled and stubborn rules of law. The case of Ward vs. Turner, 2 Ves. 431, is just this case. It was a bill to compel a transfer of South Sea annuities, the receipt for which had been delivered to the complainant's testator by one Flog, saying, "I give you, Mosely, these papers, which are receipts for South Sea Annuities, and will serve you after I am dead." It was argued for the complainant that the delivery of these receipts, with the strong words of gift accompanying it, was as much as could be done towards giving the annuities, except a mere transfer in the books. But it was held that the annuities being the thing intended to be given, a delivery of the annuities was indispensably necessary to make it a good donation; that the delivery of the receipts [**17]  was not sufficient, and that such a donation could not be made without a transfer, or something equivalent, that being the only mode in which stock or annuities are susceptible of being delivered.
It is supposed that this case differs from that, because, as is alleged, that James Gittings, at the time of delivering the certificate of stock to his daughter, endorsed his name upon the back of it (which does not appear to have been done by Flog, when he delivered the receipts for the annuities) which, it is contended, gave her authority to write over it a full assignment or a power of attorney, which would have enabled her to go to the bank, and cause a transfer of the stock to be made to her on the books. But it is not perceived that this makes any difference, nor is it necessary to inquire whether that endorsement gave any such authority; 

 [*219]  if it did, it never was executed. It appears upon the face of the certificate itself that the stock was transferable at the bank only, and it is admitted that the endorsement, whether in blank or in full, did not, and could not, operate to transfer the stock; and as it was the stock and not the certificate, that was the subject [**18]  of the intended gift, it matters not whether the endorsement was in full or in blank; for, as in the case of the check on the banker, which not being presented and paid in the life-time of the maker, the intended donation of the money was defeated for want of delivery, notwithstanding the holder of the check might, by presenting it in the life-time of the maker, have obtained the money, and thus perfected the gift; so here, even if by the endorsement of the certificate, whether filled up or remaining in blank, Mrs. Patterson might have gone to the bank in the life-time of her father, and caused a transfer of the stock to herself on the books of the bank, the only way in which the stock, the thing that was intended to be given, could be delivered, and thus have perfected the donation; yet, not having done so, it was not a valid gift of the stock, either in law or equity, for want of delivery. It was not a valid gift in law, otherwise there would have been no necessity for going into Chancery to perfect it. And being void in law, Chancery cannot interpose to make it good or enforce it. If Mr. Gittings was alive, it could not be seriously contended, that he could be compelled [**19]  to transfer the stock in the absence of any consideration; and the same principle applies to his executor. His death does not make that good, which was bad before.
DECREE AFFIRMED, WITH COSTS.  

7 of 34 DOCUMENTS 

STATE, USE OF THE JUSTICES OF THE LEVY COURT OF BALTIMORE COUNTY, vs. JOHN H. DORSEY, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 75; 1830 Md. LEXIS 51 

December, 1830, Decided 

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

This was an action of Debt brought in the name of The State of Maryland, for the use of the Justices of the Levy Court of Baltimore county, on the 14th of March, 1826, against the appellees, John H. Dorsey, Nicholas Dorsey, Frederick Grapevine, and Leonard Pouder, on a bond to the State of Maryland, dated and approved on the 2d of March, 1824, in the penalty of $ 15,499, with the following condition. "Whereas the said John H. Dorsey hath been appointed by the Justices of the Levy Court for Baltimore county, one of the collectors of the county tax for the city of Baltimore, for the year 1823, within the 9th, 10th, 11th and 12th wards of the said city; the condition of the above obligation is such, that if the above bound John H. Dorsey, shall faithfully discharge his duties as such collector for the 9th, 10th, 11th and 12th wards within the said city, then the above obligation to be void, else be and remain in full force, &c."

The defendants pleaded, 1st, general performance.

2d. That the said State, its, &c. because they say, that the justices of the Levy Court of Baltimore county did not, at any time during the year 1823,  [**2]  appoint the said John H. Dorsey, collector of the tax mentioned in the condition of the said writing obligatory; and the said defendants further say, that on the 19th day of February, in the year 1824, the following order was passed by the justices of the Levy Court of Baltimore county. "We, the subscribers, justices of the Levy Court for Baltimore county, have this day assessed and taxed the assessable property of the city and county of Baltimore for the year 1823, and apportioned the same agreeably to the foregoing levy list; and for the collection of the same, have appointed the following persons, viz. for the late first election district of the said county, now called collection district number one, we have appointed, &c.; and for the city of Baltimore, we have appointed the following persons, viz: For the first, &c. and for the ninth, tenth, eleventh and twelfth wards of the said city, we have appointed John H. Dorsey. And the said several collectors, on entering into bond, according to the act of assembly, are hereby authorized and empowered to collect and receive from the owners of property assessed in the aforesaid districts and wards, the following rate or assessment, that [**3]  is to say, on all the property assessed in the aforementioned several districts in the said county, the rate or sum of one dollar and ten cents on every hundred dollars, so as aforesaid assessed; and on all property assessed in the aforementioned wards in the said city, the sum or rate of sixty-three cents on every hundred dollars, so as aforesaid assessed; and the said several collectors are hereby authorized and required, if need be, to execute therefor, and pay the same over as the justices of the Levy Court of Baltimore county shall, from time to time direct. Given under our hands and seals, this 19th day of February, in the year of our Lord 1824." And that, after the passage of the said order, and on the second day of March next following, the said writing obligatory was executed and delivered to the said justices, and by them then approved and accepted, to wit, at the county aforesaid; and this the said defendants are ready to verify. Wherefore they pray judgment.

3d. "And the said defendants, further defend, &c. and say, that the said State, its, &c. because they say, that since the commencement of this present term of Baltimore County Court, and prior to filing this plea,  [**4]  the justices of the Levy Court of Baltimore county, for whose use the said action of debt was instituted, as a court, have ceased to exist, and that no successors have been appointed to the said court hitherto; and this they are ready to verify, wherefore they pray judgment, if the State, &c.

4th. "And the said defendants, further defend, &c. and say, that the said State, its, &c. because they say, that after the commencement of this present term of Baltimore County Court, and prior to the time of filing this plea, a body politic and corporate, by the name and style of the commissioners of Baltimore county, was duly created and established; the several individuals comprising the same, between the days and times aforesaid, having been duly elected such commissioners; and having also taken and subscribed, before a competent authority, the oath required by law, of each of such commissioners; and the said defendants do further say, that after such election and qualification of the several commissioners of Baltimore county, and prior to the time of filing this plea, the Mayor and City Council of Baltimore did duly and legally provide and enact, that the collectors of the aforesaid [**5]  county tax, of which the said John H. Dorsey was one, should pay to the register of the city of Baltimore, all such sums of money as they, the said collectors, had received from the taxes imposed by the authority of the Levy Court of Baltimore county; and so the said defendants say, that the right of action of the said justices of the Levy Court of Baltimore county, on the bond declared on in this suit, if any, since the institution of this suit, has been extinguished, and this, &c.

To the second, third and fourth pleas, the plaintiff demurred generally, and the defendants joined in demurrer.

To the 1st plea the State replied as follows; viz: that the plaintiff ought not to be barred, &c. because the said plaintiff says, that after the making of the said writing obligatory, and before the commencement of this suit, to wit, on the third day of March, in the year 1824, at the county aforesaid, the justices of the Levy Court of Baltimore county aforesaid, directed and caused the clerk of Baltimore County Court, to deliver to, and place in the hands of the said John H. Dorsey, as one of the collectors of the county tax for the city of Baltimore, for the year 1823, within the [**6]  ninth, tenth, eleventh and twelfth wards of the said city, in the said condition of the said writing obligatory mentioned, a fair copy of the fair and accurate account kept by the said clerk of the assessment or rate imposed and levied by the said Levy Court, as by law directed and authorized, on the assessable property within the said wards of the city of Baltimore, as a county tax for the year 1823, and an alphabetical list of the names of the persons who then were owners of the said assessed property, in each of the said wards, and liable as well as the said property for the payment of the said assessment or rate, so imposed and levied thereon, with the amount of each of the said person's assessment or proportion of the said county tax annexed, to be collected, paid and accounted for, by the said John H. Dorsey, as such collector aforesaid, within the time, and in the manner prescribed by law; and the said John H. Dorsey, as such collector aforesaid, mentioned in the said condition of the said writing obligatory, then and there received and accepted the said copy of the account of assessment and lists of the persons and amounts assessed for collection, and to be paid and accounted [**7]  for as aforesaid. And the said plaintiff avers, that the whole amount of the county tax for the year 1823, so levied and imposed on the assessable property within the said wards of the city of Baltimore, as specified in the said copy of the account of assessment and lists, so delivered to, and accepted by the said John H. Dorsey, as such collector aforesaid, including the commission of six per cent. allowed to him for the collection thereof, was and is, a large sum of money, to wit, the sum of $ 7972 17, to wit, at the county aforesaid. And the said plaintiff further says, that the said John H. Dorsey, as such collector aforesaid, on and by the said delivery to, and receipt by him, of the said copy of the account of assessment and lists aforesaid, so placed in his hands, and accepted by him for collection as aforesaid, was duly and lawfully authorized, and it became and was his duty, as by law prescribed and required, within twenty days thereafter, to wit, at the county aforesaid, to proceed to collect the said assessment or rate, to the amount of the said sum last above mentioned, as specified in the said copy of the account of assessment and lists so placed in his hands, and by him [**8]  accepted for collection, and to finish and complete the collections of the same in the several wards aforesaid, within one year and six months after the delivery to and receipt by him, of the said copy of the said assessment and lists; yet the said John H. Dorsey, regardless of his duty as such collector aforesaid, did not finish and complete the collections of the assessment or rate so imposed and levied as a county tax for the year 1823, on the assessable property within the said wards of the city of Baltimore, and placed in his hands and accepted by him for collection, as such collector aforesaid, within one year and six months after the delivery to and receipt by him, of the said copy of the account of assessment and lists aforesaid; but wholly neglected and refused, although often requested, to finish and complete the collections of the assessments so placed in his hands, and still doth neglect and refuse so to do; and therefore the said plaintiff says that the said John H. Dorsey hath not faithfully discharged his duties as one of the collectors of the county tax for the city of Baltimore, for the year 1823, within the said wards of the said city, but therein hath wholly failed [**9]  and made default, contrary, &c. and this, &c.

And for assigning a further breach of the condition of the said writing obligatory, the plaintiff says, that after the making of the said writing obligatory, and after the delivery to, and receipt by John H. Dorsey, as such collector aforesaid, of the copy of the amount of assessment, and list of names and amount of county tax to be by him collected, for the year 1823, for the ninth, tenth, eleventh and twelfth wards within the city of Baltimore, to wit, at the county aforesaid, it became and was by law the duty of the said John H. Dorsey, as such collector, to pay and account for the amount of the sums so by him to be collected, as specified in the said lists, in such manner and at such time as the said Levy Court of Baltimore county should direct and appoint. And the said plaintiff further says, that the said Levy Court, afterwards, to wit, on the 7th of September, 1825, at, &c. did direct and appoint that the said John H. Dorsey, should pay and account for the collections of the assessments so placed in his hands as aforesaid, to the justices of the Levy Court of Baltimore county aforesaid, on or before the first Tuesday in March [**10]  next thereafter, to wit, &c. whereof the said John H. Dorsey, had notice. And the said plaintiff avers, that the amount of the collections of the assessments of the said county tax for the year 1823, for the said wards which it was the duty of the said John H. Dorsey, as collector to have paid to the justices of the Levy Court of Baltimore county, on or before the said, &c. was the sum of $ 7,493 84; yet the said John H. Dorsey, regardless of his duty as such collector, did not, on or before the said, &c. pay or account for the collections of the said assessments so placed in his hands, and by him accepted, or any part thereof, to the justices of the Levy Court of Baltimore county aforesaid, but the said John H. Dorsey, although often requested by the said Levy Court, to wit, &c. hath always hitherto refused, and still doth refuse, to pay or account for the same, or any part thereof; and so the said plaintiff says that the said John H. Dorsey, hath not faithfully discharged his duties as one, &c.

To these breaches the defendants rejoined as follows; that as to the first breach assigned by the said State in its replication, they say, that the said State, its action, &c. because [**11]  they say, that the justices of the Levy Court of Baltimore county did not at any time during the year 1823, appoint the said John H. Dorsey collector of the tax mentioned in the condition of the said writing obligatory. And the defendants further say, that on the 19th day of February, in the year 1824, the following order was passed by the justices of the Levy Court of Baltimore county, (setting out the order recited in the 2d plea,) and that after the passage of the said order, and on the 2d day of March next following, the said writing obligatory was executed and delivered to the said justices, and by them then approved and accepted, to wit, at the county aforesaid; and this the said defendants are ready to verify; wherefore they pray judgment, &c.

And the said defendants, as to the second breach assigned by the said plaintiff, say, that the justices of the Levy Court of Baltimore county, did not direct and appoint that the said John H. Dorsey, as collector aforesaid, should pay and account for the collections and assessments placed in his hands, to the justices of the said Levy Court, on or before the first Tuesday in March, 1826, and that he the said John H. Dorsey had not [**12]  notice of any such direction and appointment; and of this the said defendants put themselves upon the country.

To the defendants' rejoinder to the plaintiff's first breach, the plaintiff demurred generally, and the defendant joined in demurrer. An issue was joined upon the rejoinder to the second breach assigned by the plaintiff.

The County Court [HANSON, A. J.] sustained the demurrers to the defendants' 3d and 4th pleas, and also the demurrer to the defendants' rejoinder to the first breach, assigned in the replication of the plaintiff to the defendants' first plea; but overruled the demurrer to the second plea, and gave final judgment for the defendants, whereupon both parties appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The Levy Court of Baltimore county, having omitted to make the levy for the year 1823, between the 1st of March and 31st of December of that year, as they were bound to do by the act of 1817, ch. 22, were authorized by the act of 1823, ch. 23, to "make and close the levy for the year 1823, on or before the 1st of March, 1824." HELD, that as the collectors of the levy were not to be appointed before the assessment was made, the act of 1823 carried with it an extension of the time for appointing those officers; or if it did not, their appointment under the act of 1817 was not restricted, as the laying of the levy was, to the 31st December of the year for which the tax was levied.

The Levy Court being a corporation, had power to accept and approve the bond of a collector appointed to collect the levy, authorized by the act of 1823, though not executed and filed with them until the 2d of March, 1824.

When a suit is brought on a private bond, &c. for the use of an individual, such person is not the legal plaintiff. The use is only entered for the protection of his equitable interest. If the c. q. u. dies pending the suit, his death is not the subject of a plea; nor is there for the purposes of the suit, any necessity for suggesting his death. The suit goes on as if he was still living or the use had never been entered. There is no reason why in the case of a public bond, with the privilege secured to any person interested to bring suit upon it, there should be any difference.

So where a Levy Court was abolished pending a suit brought in the name of the State, for the use of such Levy Court, against the obligors in a collector's bond, it was held, that a plea in abatement puis darrein continuance, that the Levy Court had been extinguished, was no objection to the further prosecution of the action.

In an action of debt on a bond with a collateral condition, where the defendant has pleaded general performance, and the plaintiff replied assigning a breach of the condition, it is a departure for the defendant to allege in his rejoinder, matter which shows the bond never had any legal existence.

It is a sufficient breach of the condition of a collector's bond, taken in pursuance of the acts of 1794, ch. 53, and 1817, ch. 142, that the collector did not finish and complete the collections of the assessment or rate imposed, &c. placed in his hands and accepted by him for collection, within one year and six months after the delivery to him of the copy of the account of assessment, and list of taxables required to be delivered to each collector.

The design of the act of 1815, ch. 173, allowing to collectors, one year after the expiration of the time for which they are appointed, to collect balances due them, was only to give them further time for their own benefit, to collect what they had neglected to collect in due time, in the same manner in which they might have made the collections, within the time prescribed.

The following acts of assembly are referred to in this cause.

1794, ch. 53, enacts, that the justices of the Levy Courts, in their respective counties, "are authorized and required on some day, between the 1st March, and the 1st October, annually, to meet at, &c. to adjust the ordinary and necessary expenses of their several counties; to impose an assessment or rate on all property within their county, sufficient to defray such county charge; and the said justices shall apportion such assessment or rate, and shall appoint a person or persons to collect the same, and every collector, before he acts as such, shall give bond, payable to the State, such as the said justices shall approve of, in double the sum to be collected, with condition," &c.

1817, ch. 22, after a preamble, stating that doubts are entertained of the validity of some of the acts of the court, because of their not being done within the time directed, sec. 1, enacts, "that the several assessments and levies of the public or county taxes, or charges made and imposed by the Levy Court of Baltimore county, and the several contracts or bonds made or taken in relation to the collection, or the payment or expenditure thereof, shall be held as effectual and valid as if the same had been fully completed, made or taken, within the time prescribed by law, provided the same shall not alter or affect the legal defence of the collectors against any claim or suit, which has been, or may be preferred against them, for any thing done heretofore."

Sec. 2, enacts, that the Levy Court of Baltimore county, "be, and it is hereby authorized and empowered to meet for the transaction of public business, at, &c. and on, or at such days and times as the said court shall consider expedient, between the 1st day of March, and the 31st day of December, in each and every year hereafter, and may continue by adjournment or otherwise, from day to day, or time to time, until the public business shall have been completed: Provided nevertheless, that the levy for each year shall be completed within the year."

Sec. 3, gave special power to complete the levy for the year 1817, appoint a collector, finish all the unsettled business of the county, and take a bond from the collector.

1817, ch. 142, sec. 2, authorized the Levy Court "to appoint as many collectors for the city of Baltimore as they may think necessary, who are to give bond in such penalty with such security as the said court shall approve."

Sec. 3, enacts, "that the said collectors shall each and every of them finish and complete the collections of such of the assessments as may be placed in their hands, by the time prescribed by law, or assigned by the said court for the completion of the same, and shall pay and account for the same in such manner, and at such times as the said court shall direct or appoint."

1817, ch. 182, authorized the Levy Court of Baltimore county to appoint as many collectors as they deemed necessary, to collect the county tax for the year 1817, and declared, they should give such bonds as the court should prescribe.

1823, ch. 32, enacted, "that the Levy Court of Baltimore county, be, and they are hereby authorized and empowered to make and close the levy of the said county for the year 1823, on or before the 1st day of March, 1824." Passed 31st December, 1823.  

COUNSEL:
Williams, (District Att'y, U. S.) and Gwynn, for the appellant, contended,

1. That the plaintiff is entitled to recover on this bond, notwithstanding the Levy Court of Baltimore county ceased to exist in November, 1827. 2. That the Levy Court had authority under the act of 1823, ch. 32, to appoint collectors of the levy for the year 1823, at any time previous to the 1st of March, 1824. 3. That the bond in question is good [**13]  and valid in law, although not executed, nor approved before the 2d of March, 1824. 7 Harr. and Johns. 339, 343. 4. That the first breach in the replication, to the first plea is good in law, and that the rejoinder thereto furnishes no sufficient answer to the said breach. On the first point, they referred to the acts of 1817, ch. 142, sec. 2, and 1826, ch. 217. 1827, ch. 23. 2 Harr. and Johns. 45.

On the second point, to the act of 1794, ch. 53. 1817, ch. 22, sec. 2, 3. 1823, ch. 32. 1 Kent's Com. 431, &c. 7 Harr. and Johns. 79. On the fourth point they argued, that the breach was assigned in conformity to the act of 1794, ch. 53, and that the rejoinder thereto is a departure from the plea of performance. To show what constitutes a departure, they referred to 2 Johns. Dig. 217. 11 Johns. Rep. 182. 20 Ib. 153. Cox's Dig. 109.

As upon the demurrer to the defendants' rejoinder to the first breach, the court is to go up to the first fault in pleading; the question is, upon the sufficiency of this breach, which charges the failure of Dorsey to collect--to show it to be a good assignment they cited 1 Chitty Plead. 326. 5 Com. Dig. Plea. C. 46. 2 Harr. Ent. 350, 408.

Gill,  [**14]  for the appellee, contended,

1. That under the act of 1794, ch. 53, which was the basis of the Levy Court system, those courts were commanded to discharge all their public duties between the 1st of March and 1st of October, in every year. They were courts of restricted and special jurisdiction, and had no power to act, but within those periods. Levy Court vs. Merryman, 7 Harr. and John. 88. That court could not approve and accept a collector's bond, but within the restricted period. The Legislature intended that the business of each year should be entirely transacted between those months; and the practice has uniformly been, when the court failed to perform its assigned duties within the prescribed period, to apply to the Legislature for new powers to cure the omission.

2. The act of 1817, ch. 22, enlarged the time for transacting the public business as to the city of Baltimore. The time fixed by that law was between the 1st of March and 31st December. It is contended that Baltimore Levy Court had no power to adjourn after the 31st December, for any purpose; or that if it had such power, it was only in relation to such unfinished business as was necessarily incidental to [**15]  a levy, actually made before the 31st December. After that period, the Levy Court could not appoint a collector when the tax of the preceding year had not been ascertained, and consequently could neither accept nor approve of his bond.

3. That the act of 1817, ch. 142, was not intended to, and did not enlarge the time, within which the Levy Court was to perform its duties. It merely as regards this question, gave the power to increase the number of collectors within Baltimore county at discretion. It left the obligation, as to the time of making the appointment, precisely where it was under 1817, ch. 22. The same rule prevails as to approving the bond.

4. It is conceded by the whole case, that the Levy Court for the year 1823, totally failed to make the levy in time. They did no act towards it. The consequence was, an application to the Legislature to heal this defect.

5. The act of 1823, ch. 32, merely authorised the court "to make and close the levy of Baltimore county on or before the 1st March, 1824." This act was passed on the 31st December, 1823. Now from that period to the 1st March, 1824, the Levy Court, under the act of 1817, ch. 22, had no right to assemble [**16]  or to act; or at most, had but a qualified right, viz. to meet and finish business incidental to the levy of 1823, ascertained prior to the 31st December, 1823.

6. The case presented then under the act of 1823, ch. 32, is precisely the same, as if the Levy Court was then called into existence for the first time. Its power to act, according to the principles of Levy Court vs. Merryman, was dependent entirely upon the act of 1823.

7. What then is the true construction of the act of 1823? The word levy has received in Maryland, by frequent acts of legislation, a meaning which leaves no doubt. It means the gross sum of money to be paid into the treasury; to make and close it, as respects the Levy Court, is the process, the calculation, by which it is ascertained and distributed among the taxable inhabitants. It does not relate to the appointment of a collector, nor include it. It has nothing to do with the approval of his bond. We know that in other cases, when the Legislature intended to heal similar defects, they gave express power to appoint collectors. 1800, ch. 1; 1817, ch. 22, sec. 3; 1817, ch. 182.

The conclusion from these positions is, that under the act of 1823,  [**17]  the Levy Court of Baltimore county, had no power to appoint a collector for the tax of 1823, nor to approve of his bond. That if they had such power, it must be exercised on or before the 1st of March, 1824, after which time they had no jurisdiction over the business of the year 1823, except to receive the tax if collected, and therefore the judgment of the county court upon the demurrer to the second plea, ought to be affirmed.

Under the act of 1817, ch. 142, sec. 3, it is contended, that a mere omission to finish and complete the collections within eighteen months, gives no cause of action. The object of the bond was to indemnify against a failure to pay within the time. Whether the collector collects or not, he is still responsible. He is bound to collect. He is armed with special summary powers to enable him to collect. The question in these cases always arises exclusively upon the failure to pay--now by this act, the collector was only to pay and account in such manner and at such times as the Levy Court should direct. The order of February, 1824, appointing this collector, is to this very same effect. It is not alleged in the first breach that the court ever gave directions [**18]  how, when, to whom, or what time, this payment should be made. The money does not necessarily go to the Levy Court. The constant practice is to pay county creditors, under the order of the court. It is contended therefore, that the first breach assigned in the plaintiff's replication to the plea of general performance, is insufficient. Admitting the rejoinder to be a departure, the question still arises upon the character of the breach.

The 3d and 4th pleas allege the fact that pending the suit, the Levy Court of Baltimore county was abolished by competent authority, and this, it is contended, abated this action. The application of this doctrine depends, it is admitted, upon technical principles and the Maryland practice.

We have here a custom of taking bonds payable to the State, in numerous instances. The right is universally conceded, that the parties for whose protection such bonds are taken, those who are really interested in their being fully and fairly complied with, may, upon their infringement, bring an action upon them. No application is made to the State, no special permission granted. The party interested of his own motion may put such bond in suit. The practice [**19]  is to endorse the name on the writ, for the use, &c. The interest of the equitable plaintiff is disclosed in the assignment of the breach. That interest must exist when the action was commenced. A cause of action is supposed to be vested in the equitable plaintiff at that time. The State, the legal plaintiff, has no interest. The right to bring the action is an equitable one, granted from motives of convenience and public policy. So far for the plaintiffs. Then as to the defendants. This practice assumes, that there is always a competent person in esse, or likely to be in esse within a reasonable period, for the defendants to settle with; persons having a right to control the action, to dismiss it or enter satisfaction according to circumstances. This last party succeeds to the use, upon the death of the first cestui que use, because entitled to the right, and becomes responsible for costs in case of failure. The condition of defendants would be truly unfortunate, liable to the action of a nominal plaintiff, if this countervailing and protecting principle did not attach to and follow the action. In this case the action is not distinguishable from similar actions brought for the use [**20]  of individuals--Except that this is a much stronger case; for the Legislature abolished the levy court of Baltimore county by the act of 1826, ch. 217. and have not transferred its outstanding suits and claims or debts, to any other tribunal. The Levy Court has no successor who can release or discharge the action when prosecuted to judgment. The demand sought to be enforced here, relates to the city of Baltimore; it is due for taxes collectable within the city, such a demand has not been provided for by the act last mentioned. What is there then to prevent the application of the general principle, that upon the dissolution of a corporation, its debts are extinguished? This is a public municipal corporation. The Legislature has a right to abolish it at discretion, and resume its property. Now though they have abolished it, they have not resumed its debts nor transferred them. There is nothing then to except the case from the general rule. Will the form of the bond do it? When the Maryland practice comes to be considered, we think it will not. Should this action proceed, it must have the anomalous shape of an ex parte proceeding. It is concluded from these views, that this case is to [**21]  be regarded substantially, as if it was the suit of the Levy Court, and there being no statutory assignment of its debts, the action abated upon the extinction of that corporation.  

JUDGES:
The cause came on to be argued before BUCHANAN, Ch. J., EARLE, MARTIN, STEPHEN, and DORSEY, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*89]  BUCHANAN, Ch. J., delivered the opinion of the court.
John H. Dorsey, one of the defendants, was appointed by the Levy Court of Baltimore county, on the 19th of February, 1824, one of the collectors of the county tax for the city of Baltimore for the year 1823, and on the 2d of March, 1824, he gave his bond to the State, conditioned for the faithful discharge of his duties as such collector, with the other defendants as his sureties. Upon that bond this suit was brought, to which the defendants pleaded. [Here the Judge referred to the pleadings and judgment of the county court as before set forth, and then said]--The question arising upon the demurrer to the second plea is, whether the Levy Court of Baltimore county, had any authority to appoint collectors of the tax, imposed for the year 1823, and to receive and approve their bonds, at any time after [**22]  the 31st of December of that year. The 2d sec. of the act of 1817, ch. 22, authorizes the Levy Court of Baltimore county, to meet for the transaction of public business, at such places in said county, and on, or at such days and times, as the said court shall consider expedient, between 

 [*90]  the first day of March and the 31st day of December, in each and every year thereafter, and to continue by adjournment or otherwise, from day to day, or time to time, until the public business shall have been completed--with the proviso, "provided nevertheless, that the levy for each year shall be completed within the year." By the 2d sec. of another act of the same year, ch. 142, the Levy Court is directed to appoint a number of collectors of the tax, who are required severally to give bond to the State, in such penalty, and with such security as the court shall prescribe and approve, conditioned for the faithful discharge of their duties as such. Upon which bonds suits are authorized to be brought by the Levy Court, or any person or persons interested therein. And by the act of 1823, ch. 32, authority is given to the Levy Court of Baltimore county, to make [**23]  and close the levy for the year 1823, on or before the first day of March, 1824.
In the State use Levy Court, &c. vs. Merryman, 7 H. & J. 79, it was decided by this court, that under the act of 1794, ch. 10, authorizing the justices of the Levy Courts of the several counties in the State, "to adjourn their respective courts from time to time, for the purpose of laying the levy;" and the act of the same year, ch. 53, requiring them "to meet on some day between the 1st of March, and the 1st of October annually, to adjust the ordinary and necessary expenses of their several counties, &c.; and to impose an assessment, &c. sufficient to defray such charges," and "to appoint a person or persons, to collect the same," they had no authority to impose an assessment, after the first of October, or to adjourn beyond that time. And it is perfectly clear, that under the proviso of the 2d sec. of the act of 1817, ch. 22, the Levy Court of Baltimore county, could not have imposed the assessment for the year 1823, after the 31st of December of that year, but for the act of 1823, ch. 32, extending the time to the 1st of March, 1824. It is supposed,  [**24]  and the course of the Legislature shows the understanding to have been, that the 

 [*91]  Levy Court, was equally restricted in relation to the appointment of collectors. The 3d sec. of the act of 1817, ch. 22, passed 8th January, 1818, makes provision for completing the levy, and appointing a collector for the year 1817, and finishing the unsettled business of Baltimore county for that year, which would have been unnecessary in relation to the collectors, if the Levy Court could have appointed a collector after the 1st of October, 1817. And it is contended that under the 2d sec. of the same act, authorizing the Levy Court to meet on some day between the 1st of March and 31st December annually, for the transaction of public business, they were restricted in the appointment of a collector to some time between those periods, and that the appointment of John H. Dorsey, on the 19th February, 1824, as collector of the tax for the year 1823, was illegal and void. But we do not think so. The collectors are required to give bond in such penalty as the court shall prescribe, and as the amount of the penalty of the bonds to be given, cannot be ascertained before the assessment [**25]  is made by which it must be regulated, it would seem as if the law looked to the assessment being made, before the appointment of the collectors. It may therefore well be a question, whether the act of 1823, ch. 32, extending the time of making the levy for the year 1823, to the 1st of March, 1824, would not of itself, necessarily have carried with it, an extension of the time for appointing the collectors; and we are inclined to think it would, for there could be no necessity for appointing collectors, before the assessment was made. But be that as it may, the 2d section of the act of 1817, ch. 22, does not restrict the power of appointing collectors to a time within those limits. Inconveniences had grown out of the restriction before existing; legislation had been found necessary to make valid, appointments of collectors, and other acts of the Levy Court, not within the time prescribed, and to authorize the appointment of collectors after the limited time; to prevent which thereafter, seems to have been one of the objects of the 2d 

 [*92]  section of 1817, ch. 22, which, after authorizing the Levy Court to meet annually, between the 1st of March and the 31st [**26]  of December, goes on to say, "and may continue by adjournment or otherwise, from day to day, or time to time, until the public business shall have been completed, provided nevertheless, that the levy for each year, shall be completed within the year." Thus plainly indicating, that although the levy for each year must be completed within the year, yet that other parts of the public business need not be, but for the completion of which they are permitted to adjourn from day to day, &c., beyond the end of the year, if it should be found necessary. The proviso obviously showing, that completing the levy, was the only thing absolutely required to be done within the year. And though it would be unnecessary to appoint collectors, if the levy should not be made, yet that furnishes no reason for a different understanding of that section, for the law presumes that the Levy Court will always do their duty, by completing the levy within the time prescribed--and the act of December, 1823, ch. 32, provided against the contingency of their being no levy imposed for the year, by extending the time of imposing it, to the 1st of March, 1824. And the Levy Court being constituted a corporation and [**27]  body politic, there can on no principle, be any well founded objection to the execution, and acceptance of the bond of John H. Dorsey, on the 2d of March, 1824.
The suit being brought in the name of the State, and entered for the use of the Levy Court of Baltimore county, the demurrers to the third and fourth pleas, present substantially but one and the same question; which is, whether the Levy Court of Baltimore county, having become extinct, and another body politic, and corporate, created in its place since the bringing of the suit, the action can be sustained? When a suit is brought on a private bond, &c. for the use of an individual, the individual for whose use it is entered, is not the legal plaintiff; the use is only entered for the protection of his equitable interest, and if he dies pending the suit, his 

 [*93]  death is not the subject of a plea, nor is there for the purposes of the suit, any necessity for suggesting his death, but the suit goes on, as if he was still living, or the use had never been entered. The judgment is rendered in the name of the nominal, the legal plaintiff; and it is nothing to the defendant who may be entitled to the [**28]  equitable interest. And we can perceive no reason, why in the case of a public bond, with the privilege secured to any person interested to bring suit upon it, there should be any difference. In either case, the suit must be brought in the name of the obligee. In the case of a private bond, the individual obligee is the legal plaintiff for the use of the person having the equitable interest; and in the case of a bond to the State, (as here) the State is the legal plaintiff; and there is no necessity for the purposes of the suit, to enter the use, whether it is brought for the benefit of an individual or a corporation; nor if entered, does it make any difference to the defendant, how it may vary or change as to the person asserting the same right. It does not affect his defence, nor can any change of the use become a fit subject of plea. The declaration or replication, in the case of a bond with a collateral condition, as this is, assigns the breach and discloses the use, or for what the suit is brought, and the defendant being thus advised, shapes his defence accordingly. The judgment is in the name of the State, and will, be for the use of whoever is entitled to the beneficial [**29]  interest. We think the third and fourth pleas therefore bad, and that they were properly demurred to.
What has been said in relation to the second plea, applies equally to the rejoinder to the first breach, assigned in the replication to the first plea, with the addition that the rejoinder being of the matter of the second plea, it is clearly a departure from the defendant's first plea of general performance. It has, however, been contended, that the failure by John H. Dorsey, to finish and complete the collections of the tax imposed for the year 1823, within one year and six months after the delivery to him of a copy of 

 [*94]  the account of assessment, &c. was not alone a breach of the condition of the bond, and therefore that the first breach assigned in the replication is insufficient, in not also stating that he did not pay or account, &c. and that we must mount up to the first fault. But we do not perceive the force of the objection. The act of 1794, ch. 53, requires that a collector shall proceed to collect the tax, &c. within six months after having received the assessment lists, &c.; and the 3d section of the act of 1817,  [**30]  ch. 142, requires that he "shall finish and complete the collections by the time prescribed by law, or assigned by the Levy Court for the completion of the same," "and shall pay and account for the same, in such manner and at such times as the court shall direct and appoint." Taking the two laws together then, (and they are parts of the same system) a collector is required to finish and complete the collections within six months after having received the assessment lists, &c. or by the time assigned by the Levy Court for the completion of the same, and also to pay and account for the same, in such manner and at such times as the court shall direct and appoint. Here then, are two distinct duties required to be performed; one to finish and complete the collections within six months, &c. or by the time assigned by the Levy Court--and the other to pay and account for the same, in such manner, and at such times as the court shall direct; the neglect to perform either of which, is a violation of the condition of the bond, for which an action will lie. And it was not necessary to sustain this suit, to add to the failure by John H. Dorsey to finish and complete the collections, &c.  [**31]  (which is the first breach assigned) a neglect to pay and account, &c. which is, of itself, a separate and distinct breach of duty. Here the breach assigned is, that he did not finish and complete the collections within one year and six months, &c. which covers the whole time prescribed by law; the act of 1815, ch. 173, allowing to collectors one year after the expiration of the time for which they are appointed, to collect the balances that may be due to them, in 

 [*95]  no way relieving them from their liability or their bonds for not finishing the collections within six months; but only giving them for their own benefit and security, the privilege of collecting what they had neglected to collect in due time, in the same manner in which they might have made the collections within the time prescribed, which otherwise they could not have done.
We concur in opinion with the court below, on the demurrers to the third and fourth pleas, and rejoinder to the first breach assigned in the replication; but dissent from the opinion expressed on the demurrer to the second plea.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

8 of 34 DOCUMENTS 

BARGER, et ux. Ex'rs of ATHEY vs. COLLINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 410; 1830 Md. LEXIS 30 

June, 1830, Decided 

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

Action of Assumpsit. The declaration contained counts for work and labor, and materials found and provided, &c. For money laid out and expended; and on an insimul computassent. The defendant, (the appellee,) gave notice of a set-off, and pleaded non-assumpsit, and issue was joined.

At the trial the plaintiffs, (now appellants,) to support the issue on their part, and for the purpose of shewing that the defendant was indebted to the testator of the plaintiffs, offered in evidence the following paper, admitted to be in the hand-writing of the defendant:

("No. 1.) Settlement of accounts this 1st day of March, 1820, with Walter F. Athey, for bricks and brick work, and I do hereby acknowledge the following balance to be correct:

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

Balance of one thousand and thirteen dollars and sixty-two cents.

James W. Collins."

Whereupon the defendant proved, under the notice of set-off, that he had paid for the use of Athey in his life-time, the following [**2]  sums, to wit, $ 20, $ 30, $ 145; and for the purpose of shewing that the bricks furnished for the six buildings in N. Charles street, as mentioned in the above paper offered in evidence by the plaintiffs, were furnished by Athey and a certain George Shoemaker, as co-partners in the brick making business, under the firm of George Shoemaker and Co. and that the brick work done in the six buildings was done by the said Athey and a certain Deter Barger, as co-partners in the brick-laying business, under the firm of W. F. Athey and D. Barger, and that neither the bricks were furnished, nor any of the brick work done, by Athey in his individual character; the defendant produced and read in evidence the following accounts, which were admitted to be in the hand-writing of Athey:

"No. 2. Mr. James W. Collins and others, for six houses in N. Charles street, to George Shoemaker & Co.

________________________________________________________________________________
1818, Sep.	To 348,500 bricks, at $ 8 pr. th.	2788 00	
	To 33,000 front bricks, at $ 15 pr. th.	495 00	
	To 150 long arch bricks, at $ 7 pr. hun.	10 50	
	To 110 rubbing bricks, at $ 7 pr. th.		7 70	
	
			$ 3301 20	
	Cr. By 2000 front brick, at 15	
	  dollars pr. th.	$ 30 00	
	Cr. By 450 common brick, at 8	
	  dollars pr. th.	5 20	
	Cr. By cash at sundry times,	2500 00	
			2535 20	
	
			$ 766 00	
________________________________________________________________________________

 [**3]  

To W. F. Athey, and D. Barger,

________________________________________________________________________________
To laying 379,000 brick, at 3 50 pr. th.	1326 50	
To laying 16,500 old brick, at 3 50 pr.	
 th.	57 75	
To pointing out roof of Boehmes'	
 house,	1 00	
To poles, ropes, filing and pencil-	
 ing front,	50 00	
	
	1435 25	
Cr. By mortar, at sundry times,	3 00	
	
	$ 1432 25	
	776 00	
	
Balance,	$ 2198 25	
Turner Morehead's bill of dry	
 goods,	275 75	
	
	$ 1922 50"	
________________________________________________________________________________

"No. 3. Mr. James W. Collins and others, to Geo Shoemaker & Co.

________________________________________________________________________________
1819,	Apl. 17.	To 1500 paving bricks, at $ 11 pr. th.	16 50	
		To 6,500 front bricks, at $ 15 pr th.	97 50	
	Aug. 16.	To 59,000 common bricks, at $ 8	
		 pr. th.	472 00	
		To 17,935 paving bricks, at 9 50	
		 pr. th.	170 38	
	
			$ 756 38	
________________________________________________________________________________

To W. F. Athey and D. Barger,

________________________________________________________________________________
	To laying 64,000 bricks, at	
	  3 50 pr. th.		224 00	
Aug. 16.	To paving 505 yards back	
	  and front, at 15 cts pr. yd.		75 75	
	To digging for pavement	
	  and back wall,		3 00	
	To building five cake ovens,	
	  at 2 dollars each, extra,		10 00	
	
			$ 312 75	
	Cr. By cash,	$ 128 50	
	Cr. By 390 common bricks,	
	  at 8 dollars pr. th.	3 12	
	Cr. By 326 paving brick,	
	  at 950	3 09 1/2	
	Cr. By 403 front brick, at	
	  15 pr. th.	6 04 1/2	
	Cr. mortar, at sundry times,	1 17 1/2	
	Cr. By 2 1/4 bushels lime, at	
	   40 cts.	90	
			   $ 142 83 1/2	
	
			   $ 169 92 1/2	
	To 4 bushels lime got of	
	 Sinclair, at 40 cts.		1 60   	
	
			$ 171 52 1/2"	
________________________________________________________________________________

 [**4]  

And for the purpose of shewing, that when money was paid to either of said parties on account of bricks or of brick work as aforesaid, the respective party receiving the same gave receipts in his individual name; the defendant further gave in evidence the following receipts, which were all admitted to be in the hand-writing of the several parties whose names are signed thereto.

"No. 4. Baltimore, June the 30th, 1818, Received of James W. Collins, $ 200 on acc. of six buildings.

Walter F. Athey.

Baltimore, July 9th, 1818, Received of James W. Collins, $ 500 on acc.

Walter F. Athey.

"No. 5, Baltimore, July 17, 1818, Received of James W. Collins, $ 130 on acc. of brick delivered for the six buildings on North Charles street.

George Shoemaker.

"No. 6. Baltimore, August the 15th, 1818, Received of James W. Collins, $ 50 on acc. brick work on the six buildings N. Charles street.

D. Barger.

"No. 7. Baltimore, July the 31st, 1818, Received of James W. Collins, $ 150 on acc. brick delivered for the six buildings on North Charles street.

George Shoemaker.

"Baltimore, July the 25th, 1818, Received of James W. Collins, $ 70 on acc. of [**5]  brick work, and on the first day of August $ 70, $ 140.     Deter Barger.

"Baltimore, August 17, 1818, Received of James W. Collins, $ 120 on acc. of brick delivered at the six buildings North Charles street.

George Shoemaker.

"Baltimore, August the 8th, 1818, Received of James W. Collins, $ 70 on acc. of brick work on the six buildings on North Charles street.

Deter Barger.

And the defendant also offered in evidence the following account, and receipt thereon:

"Mr. William Robinson to W. F. Athey, and D. Barger,

________________________________________________________________________________
1819, June.	To digging for pavement, front and rear,	1 50	
	To setting stone steps and mending wall,	3 50	
	To finding some mortar for fire place,	25	
	To repairing wall of smoke house,	75	
	To laying 3500 bricks in pavements,	
	  &c. at 3 50,	10 50	
	
		$ 16 50	
	Cr. By laying 800 bricks, at 3 50 pr. th.	2 80	
	
		$ 13 70	
________________________________________________________________________________

1820, Feby. 28. Received a note on demand for the above.

W. F. Athey, & D. Barger."

To George Shoemaker, & Co.

________________________________________________________________________________
June 28.	To 500 front brick, at $ 15 pr. th.	7 50	
	To 3000 paving brick, at $ 10 pr. th.	30 00	
	
		$ 37 50	
	Cr. By 250 brick, at $ 8 pr. th.	2 00	
	
		$ 35 50	
________________________________________________________________________________

 [**6]  

1820, Feby. 28. Received a note on demand for the above.

Geo. Shoemaker, & Co.

Admitted to be in the hand-writing of the said Walter F. Athey.

And also proved by the said William Robinson, that at the time of the payment thereof, to wit, on the 28th of February, 1820, he had not heard of any dissolution of the said co-partnership of George Shoemaker & Co. and did not hear of any dissolution thereof until some time afterwards. And also gave in evidence the following account, and receipt thereon:

"Mr. Charles L. Boehme to W. F. Athey & D. Barger.

________________________________________________________________________________
1818,	May 15.	To repairing pavement at the alley,	$ 1 00	
		To 20 paving brick, at $ 11,	22	
	Sep. 26.	To filing and penciling front,	12 00	
	
			$ 13 22	
________________________________________________________________________________

Received payment in full of the above, 13th October, 1820.

W. F. Athey & D. Barger."

Also admitted to be in the hand-writing of the said Walter F. Athey; and also proved by Charles L. Boehme, that at the time of the payment thereof, to wit, in December, 1820, he had not heard of any dissolution of the partnership of the said Athey & Barger.

The plaintiffs then further gave evidence by the said George Shoemaker,  [**7]  that the co-partnership formerly existing between him and the said Athey, was dissolved about the beginning of December, 1819, and that in a short time thereafter, and before the 1st of March, 1820, he, the witness, assigned, for a valuable consideration, all his right and interest in said co-partnership concern, to the said Athey; that the said co-partnership was not indebted to any person at the time of such assignment; and that during the continuance of the said co-partnership in the years 1818, and 1819, they furnished to the defendant for the aforesaid six buildings, between 500,000 and 600,000 bricks, at various prices, from 8 to 15 dollars per thousand.

The defendant, by his counsel, then objected to the admissibility of the said George Shoemaker as a witness, to prove either the dissolution of the co-partnership of George Shoemaker and Co. in December, 1819, or that there was an assignment of all his interest in the claims of the said co-partnership by the witness, to the said Athey, or that there were no debts due from the said co-partnership at the time of such assignment; and also objected to the admissibility of the paper herein first given in evidence by the plaintiffs,  [**8]  as evidence of the knowledge by the defendant of the dissolution of the co-partnership of George Shoemaker and Co. and of defendant's knowledge of an assignment of all witness's interest in the claims of said co-partnership, to the said Athey, by the said Shoemaker. But the Court overruled all the aforesaid objections. Thereupon the defendant, by his counsel, moved the Court for their opinion and direction to the jury, that upon all the foregoing evidence the plaintiffs are not entitled to recover in this action, because said evidence does not show any dissolution of the co-partnership of W. F. Athey and D. Barger, in the brick-laying business, or any assignment of its claims, or any knowledge thereof by the defendant; and because the whole of said evidence does not furnish legal or competent proof to go to the jury, of any balance due from the defendant to the said Athey, in his life-time, or, if of any balance, not of greater amount than the aforesaid set-off, proved as aforesaid, upon which this action can be maintained; which opinion and direction the Court, (ARCHER, Ch. J. and KELL, A. J. gave.) The plaintiffs excepted, and the verdict and judgment being for the defendant, the [**9]  plaintiffs appealed to this Court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

A proved a settlement with C on the 1st March, 1820, shewing a balance due him of $ 1013, for building certain houses. C, under notice of set-off, established payments to the amount of $ 195; and to shew that A had no separate right of action, proved that he was a partner in two firms, one of which furnished the bricks, and the other did the brick work of the houses, and both of which rendered accounts in 1818 and 19, amounting to $ 2850, for their respective claims. He also proved various receipts, during the same years, of the individual partners of those firms for payments made to them--some on account of such buildings generally--some for bricks,--some for brick work, amounting in the whole to $ 1310. A then offered to prove by one of his former partners, that his firm was dissolved about the close of 1819, and its debts assigned to A. The county court admitted the witness, and held that the settlement in 1820, was evidence of C's knowledge of the dissolution of that firm, and the transfer of its debts to A; but no evidence of the dissolution of the other firm being given, that court also decided that the whole evidence did not furnish competent proof of any balance being due to A individually. Upon appeal, held that this was a question of fact for the jury.  

COUNSEL:
Moale, and S. I. Donaldson, for the appellants, contended, 1. That there was evidence in the cause proper to be submitted to the jury, from which they might infer the dissolution of the partnership between Barger, and plaintiffs testator, and a transfer of Barger's interest to Athey in the same. 2. That if there was no evidence of dissolution of the partnership between Barger, and the testator of the plaintiffs, yet plaintiffs were entitled to recover whatever sum might be due from the defendant, to Shoemaker and Athey, there being proof of the dissolution of the last mentioned partnership, and of the assignment of Shoemaker's interest therein to the plaintiff's testator. 3. That the evidence in the cause furnished legal and competent proof to go to the jury, of a balance due from the defendant to the plaintiff's testator, greater in amount than the set-off proved by the defendant in this action, of the weight of which evidence the jury were the proper judges.

On the first point they cited Davis vs. Davis, 7 Harr. and Johns. 37. Barger vs. Collins, Ib. 219. Allstan vs. Contee, 4 Harr. and Johns.  [**10]  352. On the third point they referred to Laidlaw vs. Organ, 2 Wheat. 182.

Williams, (District Att'y U. S.) for the appellee. 1. The settlement of March, 1820, upon which the plaintiffs rely, was founded on transactions admitted to be of a partnership character. It is not denied, that there was proof of a dissolution of the partnership between Shoemaker and Athey, and the defendant's prayer does not raise that question--the question presented is, was there evidence of a dissolution between Barger and Athey, and that the claim due that firm, was assigned to Athey. That this was known to defendant, and that with such knowledge he promised to pay--a promise to pay one of the partners a partnership debt, is not per se evidence of a dissolution and assignment. Allstan vs. Contee, 4 Harr. and Johns. 351. Onion vs. Paul, 1 Harr. and Johns, 114. 2. The accounts relied on, show, that a sum of money was due from the defendant, for bricks furnished, and for brick work, but there is no data by which it can be ascertained how much is due for each, and therefore the jury had no rule by which they could have found a verdict. Davis vs. Davis, 7 Harr. and Johns. 36. Fergusson vs. Tucker, 2 Harr.  [**11]  and Gill, 189. Bell vs. Morrison, 1 Peters, S. C. R. 366. 1 Petersdorf, 157, Brazier vs. Clap, 5 Massa. Rep. 10. 2 Harr. Index, 89.  

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

OPINIONBY:
EARLE 

OPINION:

 [*418]  EARLE, J. delivered the opinion of the Court.
The Court below delivered an opinion and directed the jury, in this case, that upon all the evidence in the cause, the plaintiffs were not entitled to recover, because such evidence did not show any dissolution of the partnership between Athey and Barger, in the bricklaying business, or any assignment of its claims, or any knowledge thereof by Collins, the defendant; and because the whole of the said evidence, did not furnish legal, or competent proof to go to 

 [*419]  the jury of any balance due from the defendant to Athey, in his life-time, or if any balance, not of greater amount than the set-off proved by him, upon which the action could be maintained. If the Court were right as to the dissolution of the partnership between Athey and Barger, they were clearly in error as to the remaining part of the direction. The accounts of 1818, and 1819, produced by the defendant in [**12]  the hand-writing of Athey, became evidence in behalf of his estate, and it may be, that by their assistance, the plaintiffs might have been able to separate the debt due to Shoemaker and Athey, from the debt due to Athey and Barger, and thereby to show what proportion of the large item of $ 964,01, in the settled account of the 1st of March, 1820, belonged to the former partnership. For this, under the evidence given, added to the first and third items of the account, which were undisputed, they might have been entitled to a verdict, subject to a deduction of the sum of the set-off, which was also proved. We do not pretend to say, that from this source, the plaintiffs would have succeeded to establish this part of their demand against the defendant. This point the jury alone would have the right to decide; and that the plaintiffs were deprived of the use of this proof, by the directions of the Court.
All we mean to signify is, that the accounts of 1818 and 1819, might have been used for this purpose by the plaintiffs, and that it should have been left to them to make the attempt, if they had seen proper to do so. We intend alone to say that those accounts were [**13]  legal, and competent proof to go to the jury, of the balance due from the defendant to Athey in his life-time. The judgment must be reversed, and the case sent back on a procedendo.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

9 of 34 DOCUMENTS 

KARTHAUS vs. OWINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 430; 1830 Md. LEXIS 32 

June, 1830, Decided 

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

This was an action of Debt, on an appeal bond, dated May 2d, 1809, executed by the appellant, Peter A. Karthaus, on an appeal from a judgment in favor of the appellee, James Owings, as plaintiff in a replevin suit in Baltimore County Court. The condition of the bond is as follows: "Whereas the said James Owings did obtain judgment against the said Peter A. Karthaus in Baltimore County Court, in March term, 1809, and said P. A. K. is about to appeal from said judgment, so as aforesaid rendered, returnable to the next Court of Appeals. Now the condition of the above obligation is such, that if the said P. A. K. shall not pursue the directions of the act of assembly, entitled, "An act for regulating writs of error, and granting appeals to and from the Courts of common law within this province," at the next ensuing Court of Appeals, which shall be held for the western shore of the State of Maryland, and prosecute the same writ with effect, and also satisfy and pay to the said J. O. his executors, administrators and assigns, in case the said judgment shall be affirmed, as well all and singular, the debt, damages and costs, adjudged by the County [**2]  Court aforesaid, as also all costs and damages that shall be awarded by the Court of Appeals aforesaid, then the said: bond to be and remain in full force and virtue, otherwise of no effect."

The appellant, Karthaus, pleaded the following pleas, after craving oyer of the bond.

1. Performance generally of the condition of the bond.

2. That he did pursue the directions of the act of assembly, entitled, "An act for regulating writs of error, and granting appeals, &c." and did prosecute the appeal with effect.

3. That he pursued the directions of "the act, &c." at the "ensuing Court of Appeals, as meant and mentioned in the condition of the bond," and paid the debt, damages and costs, adjudged by the County Court, and also all costs and damages that were awarded by the Court of Appeals.

4. After setting out the execution of the replevin bond, with one Charles L. Boehme as surety, and the recovery in replevin in the County Court and the Court of Appeals, he pleaded--that the replevin bond was, after the recovery in the Court of Appeals, and before the institution of this action, sued against Boehme to judgment, and that Boehme satisfied the appellee the judgment.  [**3]  

5. After reciting the recoveries in replevin, as in the last plea, he pleaded that the replevin bond was sued to judgment by the appellee against Boehme, that a ca. sa. was issued on the judgment, that Boehme was taken under the ca. sa. and by the appellee and the sheriff was discharged from the execution.

6. After the recitals as to the replevin bond, and recoveries in replevin, as in the last pleas, he pleaded that after the recovery in the Court of Appeals, and before this suit was brought, the replevin bond was sued to judgment against Karthaus; that Karthaus appealed from the judgment--that his appeal was dismissed, and he was adjudged to pay costs, which he did pay accordingly.

To these pleas the appellee replied as follows:

To the first plea--that the appellant did not prosecute with effect his appeal from the judgment of Baltimore County Court. And he then assigned the following breaches.

1. That the appellant did not prosecute the appeal with effect.

2. That the judgment of Baltimore County Court was affirmed and ratified by the Court of Appeals, by whom it was also adjudged that the appellee "should have a return of the said goods and chattels,  [**4]  to be detained by him irreplevisable for ever;" and also, that costs and charges, &c. should be recovered against the appellant.

To the second plea, "that the appellant did not prosecute his appeal with effect, as alleged by him in his plea;"

To the third, fourth, fifth and sixth pleas, the appellee demurred, the appellant joined in these demurrers; and demurred to the replications to the first and second pleas.

The Court (ARCHER, Ch. J.) having given judgment against appellant on the demurrers, a writ of inquiry at bar was executed for assessing the appellee's damages. In the course of the inquisition the following exceptions were taken by the appellant:

1. The appellee offered evidence to prove the value of the goods replevied; but the appellant objected to the admission of the evidence, and the Court (ARCHER, Ch. J.) admitting it, he excepted.

2. To prove the value of these goods the appellee offered in evidence the records of proceedings in the replevin suit and appeal. And offered to prove that the property taken by the plaintiff in replevin, was worth the amount at which it was appraised, in the return made by the sheriff. The appellant objected to this [**5]  evidence. The Court allowed it, and he excepted.

3. The appellee prayed the Court to direct the jury that they were at liberty to allow interest on the amount of the value of the replevied goods, and on the costs incurred by him in the replevin suit. The Court gave the direction, and the appellant excepted.

4. The appellant then, to show the jury that in the exercise of their discretion they ought not to allow interest on the value of the goods, offered to read to them the whole of the matters set forth in the record of proceedings in the replevin suit, which record had already, (under the second exception,) been given in evidence by the appellee. The appellee objected to the reading of the statements and evidence set forth in the bills of exceptions contained in that record. And the Court were of opinion that the bills of exceptions could not be read for the purpose aforesaid. To this opinion, and the refusal of the Court, the appellant excepted.

5. The appellant then offered to read in evidence the record of the judgment, and execution thereon, of the appellee against Boehme as surety in the replevin bond, to show that, to the amount of said judgment, the appellee [**6]  had been satisfied, and that, that amount ought in the present assessment of damages to be allowed the appellant. The record showed that a ca. sa. issued on the judgment, and that the sheriff returned to the ca. sa. "cepi," "staid by injunction." The Court refused to admit this record in evidence for such purpose. The appellant excepted, and the verdict and judgment being against him, he appealed to this Court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

K sued out a writ of Replevin, gave the usual bond, and the sheriff replevied the goods demanded. Judgment being rendered against him, he appealed and filed the usual appeal bond conditioned to prosecute his appeal with effect, and satisfy the damages and costs awarded by the county and appellate courts. Judgment was rendered against him upon the appeal. In an action upon his appeal bond the following questions were decided:

1. That a replication assigning as a breach "that the defendant did not prosecute his appeal with effect to the damage of the plaintiff, &c." was sufficient upon general demurrer, was an answer to a plea of general performance, and a plea "that the defendant did prosecute his appeal with effect."

2. That a plea in bar "that the appellant paid the debt, damages and costs adjudged by the County Court, and all costs and damages that were awarded by the appellate Court," is defective upon general demurrer, being no answer to the judgment for a return of property and costs.

3. That a plea in bar "that the replevin bond was, after the recovery in the appellate Court, and before the institution of this action, sued against B, (the surety of K therein) to judgment, and that B satisfied the plaintiff for that judgment," is also defective upon general demurrer. The costs of the appellate Court are not paid by such satisfaction, nor does the plea show that the judgment of the County Court was satisfied before this action was brought.

4. That the plaintiff might give in evidence the value of the goods replevied; the record of the replevin was proper evidence to identify them, and the appraisement made in such cases was prima face evidence of their value.

5. That the plaintiff's right to recover interest on the value of the goods replevied and costs of the replevin, was a question exclusively for the jury, and that the bills of exceptions taken and signed in the action of replevin, could not be read to the jury to show that interest ought not to be allowed.

6. That the record of the judgment against B the surety, and the execution thereupon issued, returned "cepi," "staid by injunction," is not evidence to show that the plaintiff had been satisfied that judgment, or that the amount thereof ought to be allowed by the jury in the assessment of damages.

The sound legal construction of the condition of an appeal bond, is, that it is an undertaking to reverse the decision appealed from, or satisfy the judgment of the appellate Court.

Where a plea contains matters of fact, as well as matters of record, it should not conclude with a verification by the record, but with a verification to the country.

A plea in bar must     substantial and conclusive answer to the action.

The appraisers authorized in the case of rent by the Statute Geo. 2, have in practice been resorted to in all cases of replevin in this State, for the purpose of ascertaining the value of the goods replevied; their appraisement is prima facia evidence of the value of goods taken.  

COUNSEL:
Mayer, for the appellant, contended,

1. That the replication to his first plea is insufficient, because the allegation that the appellant did not prosecute with effect, presents no issuable point; and because the proceedings in the prosecution of the appeal ought in substance to have been stated, and especially the nature of the judgment in Baltimore County Court; that without previously describing that judgment, the allegation, in the assignment of the breach, that it was adjudged in the Court of Appeals that the appellee "should have a return of said goods and chattels," is unmeaning and insufficient; that upon the terms of the condition of the appeal bond which refers to a judgment of the County Court, rendered for "debt, damages and costs,  [**7]  " no breach could be assigned as upon a judgment for return of goods and chattels; and that, at least, the replication and assignment of breach should have alleged a failure of the appellant to perform the judgment of the Court of Appeals. On this point he cited, Marston vs. Hobbs, 2 Massa. Rep, 433. 1 Buller's N. P. 166. Karthaus vs. Owings, 6 Harr. and Johns. 134.

2. The replication to the second plea is liable to the objections just mentioned, and to the further objection that no breaches are assigned. Morgan vs. Blackiston, 5 Harr. and Johns. 61.

3. Upon the demurrer of the appellee to the third plea, the appellant insists that the plea, if true, is a final bar to the appellee's claim, according to the condition of the bond; the "debt, damages, and costs," adjudged by the County Court, and the costs and damages awarded by the Court of Appeals, being the full measure of the claim for not "prosecuting the appeal with effect," according to the terms of the condition; that therefore the plea is applicable and is well pleaded. Warner vs. Theobald, Cowper, 588.

4. Upon the appellee's demurrer to the fourth plea, the appellant contends--that the judgment obtained against [**8]  Boehme on the replevin bond, after the judgment in the Court of Appeals, and alleged to have been paid and satisfied by Boehme, bars the appellee's demand; because the claim which the appellee acquired under the replevin bond, after the judgment in the Court of Appeals, was co-extensive, and, in effect, identical, with any demand he could have then had, or can now have, under this appeal bond. Carthew 248, 519. Cases in the time of Hardwick, 137. Jenney vs. Jenney, 14 Massa. Rep. 231. 1 Showers, 400-1 Saund. 39. Arnold vs. Bailey, 8 Massa. Rep. 145. Karthaus vs. Owings, 6 Harr. and Johns. 134. 3 Wilson, 308. 1 Shower, 146. 2 Ib. 211. Ferrers case, 6 Coke Rep. 7. Higgins case, Ib. 45. Sparies case, 5 Coke Rep. 61. Barnes vs. Crafter, 2 Wm. Blk. 827. Snider and Van Vechten vs. Croy, 2 Johns. Rep. 227. Rice vs. King, 7 Ib. 20. Johnson vs. Smith, 8 Johns. Rep. 383. 1 Saund. 5 note, (1.) Le Guen vs. Gouverneur and Kemble, 1 Johns. Cases, 436. Leonard vs. Wilkins, 9 Johns. Rep. 232. Wheeler vs. Van Houten, 12 Ib. 311. Canfield vs. Monger, Ib. 347. 13 Ib. 187. Grant vs. Button, 14 Ib. 377.

5. On the demurrer to the fifth plea, it will be contended, that the taking of Boehme under ca.  [**9]  sa. upon the judgment on the replevin bond, and the appellee's and the sheriff's discharge of him from that execution, amount to a satisfaction of the judgment--and that that judgment, covering the whole claim under this appeal bond, the satisfaction is a bar in the present action. Croke Ch. 75, 153.

6. On the appellee's demurrer to the sixth plea, it is contended--that the recovery of judgment on the replevin bond against the appellant, as stated in the plea, bars the appellee; because the suit being brought on the bond after the judgment in the Court of Appeals, and affording the appellee as large a remedy as he had under the appeal bond, and the same evidence being applicable to the actions on the replevin bond, and appeal bond, in point of law the cause of action in either case is the same; and recovery in one of the cases is all that will be allowed the appellee; and that consequently, the recovery, even without satisfaction, on the replevin bond against the appellant, is a bar to the present suit against him.

Upon the exceptions the appellant contends as follows:

On the first and second exceptions--The evidence of the value of the replevied goods was inadmissible,  [**10]  because the condition of the appeal bond does not justify the assignment of a breach in not returning goods and chattels--and because the record, on the subject of the value of the goods showing only the sheriffs' appraisement, which is in no respect the act of the plaintiff in replevin, is not evidence of the value against the plaintiff. Parker vs. Kennedy, 2 Bay, 408. Rowley vs. Stoddart, 7 Johns. Rep. 211.

On the third exception--Interest ought, at least, not to have been allowed to be given by the jury upon the costs.

On the fourth exception--The whole of the matter contained in the record of the replevin suit was admissible in evidence, because the same record of proceedings had already been given in evidence by the appellee; because it was the only means that the appellant could use to inform the jury on the point of the propriety of charging the appellant with interest; and the only data they could refer to in the exercise of any discretion on the subject of allowing interest to any extent. Because, if not evidence of the facts set forth in the bills of exceptions in the record, the whole proceedings, including the statements of these facts, might have been read to [**11]  show the nature of the controversy between the parties; and thus to guide the judgment of the jury as to the charge of interest. Newson vs. Douglass, 7 Harr. and Johns. 417. Dederer vs. Del. Ins. Co. 2 Wash. C. C. Rep. 62.

5. On the fifth exception--The legal inference from the proceedings on the judgment against Boehme, mentioned in this exception, is, that the judgment was satisfied; because the sheriff, having taken Boehme on the ca. sa., could not, under any injunction, discharge him according to the law at that period; and, therefore, it was the appellant's right to insist on Boehme's commitment, and to make the sheriff answerable by defaulting him if he had discharged Boehme. But the return being equivocal, must not be interpreted to mean that the sheriff did discharge Boehme, the law not allowing such an effect to an injunction; and hence, especially, ought the record to have been allowed to be read in evidence, leaving to the appellee the right of rebutting, by other evidence, the presumption of satisfaction of the judgment derived from the proceedings against Boehme under the execution.

Taney, (Attorney General,) and Johnson for the appellee.

1. In considering [**12]  the defendant's demurrer to the plaintiff's replication to the first plea, we must ascend to the first error, Murdock vs. Winter, 1 Harr. and Gill, 471. The first error is in the plea of general performance. The bond, the foundation of the suit, contains alternative conditions, and the performance of but one, pre-supposes the violation of the other. One of the conditions is, that the appellant shall prosecute with effect; that is, to a successful termination of the appeal, and therefore the plea of payment, admits that he has not prosecuted with effect--the conditions being inconsistent, the plea of general performance is not good. Steven's Plea. 369. Such a plea is not good, where the condition is in the alternative. Ib. 369. 2 Saund. 410, note (3) 2 Chitty's Plea, 529, note. But the breaches are well assigned, it being sufficient to negative the words of the covenant. Marston vs. Hobbs, 2 Mass. Rep. 437. 1 Chitty's Plea. 326. The covenant here is, that he will prosecute with effect, and the replication avers, that he did not prosecute with effect, which is in conformity with the decision in Karthaus vs. Owings, 6 Harr. and Johns. 134. If payment of the damages, &c. is a discharge,  [**13]  it should have been pleaded by the other side. Ferguson vs. Cappeau, 6 Harr. and Johns. 394. 1 Chitty's Plead. 298. If there is one good breach, it is immaterial what may be thought of the others, as upon the demurrer the final judgment must be for the plaintiff, if a declaration containing a good count, is demurred to, the plaintiff is entitled to judgment. Wall vs. Wall, 2 Harr. and Gill, 79.

2. The second plea alleges that defendant prosecuted with effect; the breach assigned is, that he did not prosecute with effect. If the plea is good, the breach is well assigned--if the breach is bad, the plea must be bad, and on the demurrer, we go to the first fault.

3. The third plea avers the performance of that, the non-performance of which, when assigned as a breach, was adjudged to be no breach. Karthaus vs. Owings, 6 Harr. and Johns. 134. A plea in bar must answer the whole of the plaintiff's case, and if it does not, it may be demurred to, by craving oyer of the bond--it is incorporated in the declaration, and every obligation imposed by it, must be averred by the defendant to have been performed; one of the obligations created by this bond, was, to prosecute with effect,  [**14]  and the plea does not aver the performance of this. On this point they referred to 2 Chitty's Plead. 619, 620, 621, 622. 3 Ib. 290.

4. This plea does not allege, that the amount recovered in the suit on the replevin bond, is the same as is mentioned in the appeal bond. The plea of a former recovery must state affirmatively that the amount recovered in the first case is the same as is sued for in the second case. If the plaintiff in replevin fails in the County Court and appeals, but gives no appeal bond, his replevin bond is, notwithstanding, subject to be immediately put in suit. The appeal bond, therefore, constitutes a distinct, and independent liability. In this action, the evidence is essentially different from what would have been required in a suit on the replevin bond; nor is the thing stipulated to be done by the two bonds the same. In an action on the replevin bond, the costs of the appeal could not have been recovered, but if they could, the plea does not aver their payment. The conditions of the two bonds being variant, the performance of one cannot be pleaded to a suit on the other.

5. The allegation in this plea is, that the judgment against Boehme, the surety [**15]  in the replevin bond, was technically satisfied. Such a defence can never be made by the principal. A mere technical discharge of one defendant, will not discharge a co-defendant. 3 Chitty Black. 327, (note.) Brickwood vs. Anniss, 5 Taunt. 614.

6. In support of the demurrer to this plea, they referred to 3 East. Rep. 250.

In arguing the exceptions, the breaches are to be assumed as well assigned.

On the first exception they cited Karthaus vs. Owings, 6 Harr. and Johns. 134.

2. The objection to the admissibility of the proof in this exception does not arise. The records were not offered to prove the value of the goods in the replevin suit, but to prove what those goods were. The value was proved by parol, and the defendant's prayer sought to exclude the whole. But suppose the question is presented in an action against the plaintiff in replevin, the appraisement is prima facie evidence. Act 1799, ch. 86, set. 1. Scott vs. Dorsey, 1 Harr. and Johns. 233.

3. On the third exception they referred to Newson vs. Douglass, 7 Harr. and Johns. 453.

4. Facts set forth in an exception, taken on a former trial between the same parties, are not admissible upon a subsequent [**16]  trial, against the party against whom the exception was taken. 1 Bac. Abr. 528.

5. On this exception, they referred to Cro. Chas. 440, 445. 2 Bac. Abr. 719.  

JUDGES:
The cause came on to be argued before BUCHANAN, Ch. J. EARLE, MARTIN, and STEPHEN, J.  

OPINIONBY:
STEPHEN 

OPINION:

 [*440]  STEPHEN, J. delivered the opinion of the Court.
This suit was instituted on an appeal bond, on an appeal from a judgment of Baltimore County Court, rendered in favor of the appellee, against the appellant. In the course of the argument various questions were raised, and pressed with considerable zeal and energy; some of which are not free from difficulty: but one of the points on which the counsel of the appellant seemed mainly to rely, has already been solemnly adjudicated by this Court, and ought not now to receive a different decision, unless that adjudication was manifestly founded upon untenable and erroneous principles. To this action the defendant pleaded. First, the plea of performance generally. And here the Judge referred to the pleadings--Bills of exceptions and judgment of the County Court, as before set out, and then proceeded,--Was the judgment of the Court below correct in overruling [**17]  the defendant's demurrer to the replication to the first plea? We think it was. It is not necessary to decide whether the plea of general performance was properly pleaded in the present case, or whether, if it was not, advantage could be taken of it by a general demurrer, or whether its ambiguity, with reference to the stipulations contained in the condition of the bond, was cured by the breach assigned in the plaintiff's replication; because it has been adjudged by this Court in Karthaus vs. Owings, 

 [*441]  6 H. & J. 134, that such breach was properly assigned, and the defendant's demurrer admitting the facts therein stated to be true, the plaintiff of course was entitled to judgment, according to the established principles of pleading. Independently of the weight justly due to a former decision of this Court, we think the breach was properly assigned by a negative averment that he had not, in the language of the condition of the bond, "prosecuted his suit with effect." In assigning breaches the general rule is, that they may be assigned, by negativing the words of the covenant. The exception to this rule is, that when such general assignment does not necessarily [**18]  amount to a breach; the breach must be specially assigned. 1 Esp. N.P. 158. 2 Mass. 433, 1 Wheat. Selwyn 416 are to the same effect. The covenant of seisin and of right to convey come within the rule. The covenants against incumbrances, and for quiet enjoyment, come within the exception, for the defendant does not covenants against all interruptions of the plaintiff's possession, nor against all possible incumbrances. To these covenants, the breaches should be specially assigned, shewing the nature of the incumbrance, and interruption complained of. The covenant of warranty also comes within the exception: for the defendant is not bound, by his general warranty, to warrant against all claims and ousters, and the plaintiff must assign a breach, by shewing an ouster by an elder or paramount title. "It is not necessary to state matter which would come more properly from the other side." The meaning of this rule is, that it is not necessary to anticipate the answer of the adversary: which according to Hale, C. J. is "like leaping before one comes to the stile." It is sufficient that each pleading should in itself contain a good prima facie case, without [**19]  reference to possible objections not yet urged, Step. on Plea. 354. As strongly and strikingly illustrative of the principle there laid down, he refers to a case decided in 1 Term. R. 638, where there was a covenant in a charter party "that no claim should be 

 [*442]  admitted, or allowance made for short tonnage, unless such short tonnage were found and made to appear on the ship's arrival on a survey to be taken by four shipwrights, to be indifferently chosen by both parties;" and in an action of covenant brought to recover for short tonnage, the plaintiff had a verdict; the defendant moved in arrest of judgment, that it had not been averred in the declaration, that a survey was taken and short tonnage made to appear. But the Court held that if such survey had not been taken, that was matter of defence which ought to have been shown by the defendants; and refused to arrest the judgment; and Ashhurst, Justice, in delivering the opinion of the Court, lays down the following principle: "that where a right of action is once vested, any circumstance, the omission of which goes to defeat it, whether called by the name of a proviso by the way of defeasance, or a [**20]  condition subsequent, must in its nature be a matter of defence, and ought to be shewn by the defendants: and all that is necessary prima facie to found an action of covenant upon, is, that the covenant should be broken." In the case of Ferguson vs. Cappeau, 6 H. & J. 394, the same rule is sanctioned and established. This Court there say, "It is a settled rule in pleading, that in an action founded upon a contract, if there be in the contract a proviso or condition, which operates only in defeasance of it, or merely respects the liquidation of damages, after a right to them has arisen by a breach of the contract, it is not necessary to be stated in the declaration, but should come from the other side; but that if there be a condition precedent, or a proviso or other matter, which qualified the contract, or goes in discharge of the liability of the defendant, it must be stated." Upon failing to prosecute his suit with effect or to a successful termination, or in other words upon the affirmation of the judgment of the Court below by the Court of Appeals, the event occurred, by which the condition of his bond became broken, and he could only be discharged from his [**21]  liability, by performing the alternative stipulation, in satisfying 

 [*443]  the judgment pronounced by the Court of Appeals, this being matter which operated in defeasance of his responsibility, ought to have been pleaded by the appellant; for the sound legal construction of the condition of the appeal bond, was an undertaking to reverse the decision of the County Court, or satisfy the judgment of the Court of Appeals; and as the Court decided in 1 Term. R. 638, above referred to, that a right of action vested in the plaintiff from the defendants not having fully laden the ship before she left India, which they were bound by the covenant to do, and that all that is necessary prima facie to found an action of covenant upon, is that the covenant should be broken (and the principle is here equally operative,) so here we consider that a right of action vested in the appellee, when the appellant failed to prosecute his suit with effect, which by the condition of his bond he explicitly bound himself to do; from which right of action if he wished to discharge himself, it was his duty to have pleaded by way of defence that he had satisfied the judgment rendered by the [**22]  Court of Appeals. We are therefore of opinion that the breach was well assigned by the averment that the appellant "did not prosecute his suit with effect," to the damage of the plaintiff as there stated, and that the replication, concluding as it did, was right; for where a plea contains matter of fact as well as matter of record, it should not conclude with a verification by the record, but with a verification to the country. 2 Saun. Plea. and Evid. 315. 3 Mod. 79, there referred to--Upon the appellant's demurrer to the replications of the appellee, to the appellant's first and second pleas, we therefore think the judgment of the Court below was correct.
As to the third, fourth, fifth and sixth pleas of the appellant, to which the appellee demurred; and the appellant joined in demurrer. The principles of sound logic constituting the basis of the science of pleading, a plea in bar must be a substantial and conclusive answer to the action, Step. on Plea. 71. This Court are of opinion that the third 

 [*444]  plea of the appellant is defective, because it should shew a compliance with the judgment of the Court of Appeals: every word of [**23]  the plea may be true and yet the condition of the bond be broken; the plea that he had paid the debt, damages and costs adjudged by the County Court, and also all costs and damages that were awarded by the Court of Appeals, is not a sufficient answer to the judgment of the Court of Appeals, which is for a return of property and costs. He should have set out the judgment of the appellate Court, and then pleaded satisfaction of it, in order to discharge himself. That the appeal bond covers a case of replevin is no longer an open question, and if it was, the defence of the appellant must present a conclusive answer to the claim of the appellee, which is for a return of the property and costs.
The fourth plea we consider is likewise defective. The satisfaction of a judgment recovered, in a suit upon the replevin bond against the surety of the appellant, would be no bar to a suit upon the appeal bond, because the judgment in the County Court, is not co-extensive with the judgment in the Court of Appeals; the costs in the Court of Appeals at all events are not covered by it. And the plea moreover does not state that the judgment of the County Court was satisfied before this suit was [**24]  brought, which was an essential averment to constitute a legal and valid plea in bar.
The fifth plea is equally, if not more defective than the first; certainly the technical satisfaction there pleaded would not be a bar to this suit, if the satisfaction pleaded in the former plea would not; besides an entry of the execution "not called by consent," is perfectly consistent with the facts contained in the plea, which, as we have seen, must be a substantive and conclusive answer to the action.
The sixth plea is still more feeble, ineffective, and unavailing than the others, with which it stands associated. It is, that judgment was obtained against him in 

 [*445]  a suit upon the replevin bond, from which he appealed to the Court of Appeals; that his appeal was dismissed, and he was adjudged to pay costs, which he did pay accordingly. He admits in express terms that he did not prosecute his suit with effect, and the payment of costs, clearly was no bar to this suit.
In the execution of a writ of inquiry at bar for the purpose of assessing the damages of the appellee, (the judgment of the County Court on the demurrers being against the appellant) five exceptions were [**25]  taken by the appellant. As to the first exception, we think the evidence admitted by the Court below was properly received, as it was adduced to prove the value of the goods replevied. The decision of this Court in 6 Harr. and Johns. 134, clearly settles this question. That case shews, that you may recover the value of the property upon the affirmance of the judgment, by pleading that the suit was not prosecuted with effect. The opinion of the Court below, expressed in the second exception, was not erroneous, because the records were proper evidence to identify the goods replevied. The appraisers, in the case of rent, are authorized by a statute passed in the reign of George 2d. 6 Bacon's Abr. 60, and have in practice been resorted to in all cases of replevin in this State, for the purpose of ascertaining the value of the goods replevied, in order as directed by that statute in the case of rent, to ascertain the sum in which the replevin bond is to be taken. This Court are therefore of opinion, that the appraisement was at least prima facie evidence of the value of the goods, at the time of the replevin, and was legally admissible in evidence for the establishment of [**26]  that fact. The opinion of the Court we also think correct as stated in the third exception, in which they refused to exercise a controlling power and jurisdiction over the jury upon the subject of interest, to whom, in such a case, the power of granting it exclusively belongs, according to the decision of this Court in the case of Newson and Douglass, 7 Harr. and Johns. 453. We do not 

 [*446]  think that the Court erred in the opinion expressed in the fourth exception, because the statements and evidence contained in the exceptions in the replevin suit were clearly not admissible, or legal evidence, to influence the jury in the allowance of interest. If the witnesses were living, they ought to have been produced. Bowie vs. O'Neale, 5 H. & J. 226. Even proof of their testimony on the first trial, in case of their deaths, is only admissible upon the ground of necessity, no evidence that they were dead was offered in this case.
We are also of opinion that the Court were clearly right in the opinion given in the fifth exception. The discharge of the defendant by injunction, without the assent of the creditor, was clearly no satisfaction of his claim;  [**27]  we are therefore of opinion that the judgment of the Court below ought to be affirmed.
JUDGMENT AFFIRMED.  

10 of 34 DOCUMENTS 

WILLIAMSON vs. ALLEN, et. al. use of RISTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 344; 1830 Md. LEXIS 23 

June, 1830, Decided 

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

This was an action of Assumpsit, by the appellees, the endorsees, against the appellant, the drawer of a promissory note, for $ 2500, payable to Wilson, Williamson & Co. and by them endorsed to the plaintiffs. The action was commenced on the 23d of March, 1826. The defendant pleaded non assumpsit.

1. At the trial the plaintiffs offered in evidence the promissory note, on which the suit is brought, with the endorsement thereon, and which was admitted to have been executed by the parties whose names are on the same; to wit, "$ 2500. Baltimore, December 26th, 1825. Seventy days after date, I promise to pay Wilson, Williamson & Co. or order, twenty-five hundred dollars, and     cents, for value received. D. Williamson." (Endorsed,) "Pay the contents to Messrs. S. & M. Allen & Co., Wilson, Williamson & Co.--S. & M. Allen & Co." The defendant then read in evidence to the jury the following bill on the equity side of this Court, and all the proceedings thereon, with the answer of Sylvester L. Fowler, one of the plaintiffs, and the exhibits filed with the said answer. "To the Honorable the Judges of Baltimore county Court, sitting as a Court [**2]  of Equity: Humbly, &c. your orator, David Williamson, of the city of Baltimore, says, that some time in the month of December, 1825, a certain John B. Wilson, Charles A. Williamson and John N. Woodard, of the city of Baltimore, were trading under the firm of Wilson, Williamson & Co. and the said Charles A. W. being the son of your orator, and then being confined to his lodgings by indisposition, the said John B. W. applied to your orator for his aid, in raising funds for the use of the firm; falsely representing that the said firm was doing a good business, and only wanted funds to enable them to carry it on advantageously. And your orator further sheweth, that relying upon the said representations, your orator agreed to loan, and did loan to the said John B. W. for and on account of the said firm, his promissory note in their favor, bearing date at Baltimore, the 26th of December, 1825, payable 70 days after date, for the sum of $ 2500, for the purpose of raising money. And your orator further sheweth, that he has heard and believes it to be true, that the said John B. W. immediately thereafter, endorsed the said note in the name of the said firm, and transferred it to a certain George [**3]  Riston, (he the said George R. knowing how the said note had been obtained) at usurious interest; that the said George R. shortly thereafter, passed the said note to Solomon Allen, Moses Allen and Sylvester Fowler, of the city of Baltimore, (then trading under the firm of S. & M. Allen & Co.) but that the said George R. did not endorse the same, the endorsement of the said W. W. & Co. being, as your orator has been informed and believes, in blank. And your orator further sheweth, that the said note not being paid when it arrived at maturity, the said Solomon, Moses, and Sylvester, instituted a suit thereon against your orator, which is now here depending, and to the proceedings wherein your orator begs leave to refer, and prays that the same may be taken and considered as a part of this, his bill. Your orator further sheweth, that he hath understood and believes that the said Solomon, Moses and Sylvester, are not in fact the holders of the said note, and have no interest therein; but that the said suit is intended for the benefit of the said George R. and is prosecuted for and on his account, by the said plaintiffs. And that the said Solomon, Moses and Sylvester, have no right of action [**4]  whatever against your orator; all which actings and doings are contrary, &c. In tender consideration whereof, and for as much, &c. as he is unable to prove, &c. To the end therefore, that the said Solomon, Moses and Sylvester, may true answers make to the matters herein charged; and that in as full a manner as if, &c. and especially whether the said Solomon, Moses and Sylvester, did not receive the said note from the said George R.? and if they did not receive the said note from George R. from whom did they receive the same? and on what account? and for whose use the same was received? and whether they paid value for the said note, and to whom and for whose use, and on whose account the said suit is carried on? and whether they, the said Solomon, Moses and Sylvester, have any and what interest in the said note? And that they may be required to produce the said note, and that the same may be cancelled and destroyed, and that your orator may have such other, and further relief, &c. Whereupon the said Sylvester Fowler filed in the County Court the following answer: The answer of Sylvester F. one of the defendants to the bill of complaint of David W. exhibited to the judges of Baltimore [**5]  County Court, sitting, &c. against Solomon A., Moses A. and Sylvester F. This defendant saving to himself, &c. says, that Solomon A. and Moses A. have no knowledge of the transaction to which the bill refers, as they were in Philadelphia at the time it took place, and have resided there ever since; the transaction was with this defendant alone, and he alone can testify respecting it. This defendant has no knowledge of the representations made by John B. W. to the complainant at the time the note was given, and cannot therefore either admit or deny the truth of the representations, as set forth in the bill. This defendant further states, that the firm of S. & M. Allen & Co. advanced out of their own funds, to W. W. & Co. the endorsers of the said note, the full amount of the note in money, without receiving or retaining interest, at the rate of more than six per cent. per annum; that the transaction was with the defendant, and so far as he has any knowledge of it, was not usurious, either in fact or intention, but was on the contrary perfectly fair and legal. This defendant further states, that the suit at law referred to in the bill was commenced against the maker and endorsers of [**6]  the said note, by Solomon A., Moses A. and Sylvester F. on their own account, and for their own benefit. And lastly, this defendant again utterly denies the charge of usury, set forth in the bill of the complainant.

Upon exceptions being filed to the preceding answer, the same respondent put in the following additional answer: To the first exception this defendant says, that to the best of his recollection, George R. was present with John B. W. when this defendant received the note, but the note was received from the said J. B. W. and not from the said George R. To the second exception this defendant says, that he received the note from the endorsers, W. W. & Co. as stated above. To the third exception this defendant says, that he received the said note on account and for the sole use of S. & M. Allen & Co. the plaintiffs in the action at law. To the fourth exception this defendant says, that he paid value for the note as stated in his original answer to W. W. & Co. the endorsers on the said note. To the fifth exception this defendant says, that at the time he advanced the money to W. W. & Co., George R. was present, and pledged his word to the defendant, that if the said note [**7]  was not paid at maturity, by the maker or endorser, he, the said George, would pay it. Since the suit at law was commenced, the said George R. has redeemed his pledge and paid the note, as appears by the following receipt herewith filed, marked A; upon this consideration the said George R. is now entitled to the beneficial interest in the said note and suit. This defendant further says, that if he had supposed it material, he should have stated this fact in his original answer. To the sixth exception this defendant says, that the plaintiffs in the action at law, have no other interest in the note, than what arises from an obligation to prosecute the suit to final judgment for the use and benefit of the said George R. To the seventh exception this defendant saith, that he herewith files the note and prays that it may be deemed as part of this, his answer.

The exhibit marked A, referred to in the aforegoing answer, is as follows, to wit: "We acknowledge the receipt from George Riston, of the following items, viz. on the 18th November, 1826, cash, $ 586 57; on the 18th December, 1826, cash, $ 517 16; on the 20th January, 1827, cash, $ 502 83; on the 19th February, 1827, cash, $ 1028 [**8]  02; making in all $ 2634 58, which is in full of a note held by us against D. Williamson, for $ 2500, which note is now in suit and the proceeds of the same properly belonging to said Riston. Baltimore, 19th February, 1827. S. & M. Allen & Co." And the defendant further gave in evidence by the notary public, by whom payment of the said note was demanded, at the instance of the legal plaintiffs, of the defendant, David Williamson, that when he applied to the defendant for the payment of the same, the said defendant refused to pay the same, alleging as a reason the following: "that the said note can or will not be paid, having been obtained by false representations, pretexts, and devices, and not applied to the purposes for which it was given or intended to be used; and furthermore, because usury has been had and received thereon." And the defendant further gave in evidence that this suit was not entered for the use of George Riston, the person named in the said equity proceedings, until the 25th day of this present month, November, 1827, and after the coming in of the answers in the said equity proceedings mentioned. And further gave in evidence the following receipt, admitted to have [**9]  been signed by Wilson, Williamson & Co. the payees on the promissory note aforesaid, at the time the note mentioned in the same was delivered by defendant to them.

________________________________________________________________________________

"Baltimore, December 26th, 1825. Received of Mr. D.	
Williamson, one note dated 23d instant, 60 days,	$ 2,500	
26th   "   70  "  	2,500	
	
Which we promise to pay at maturity.	$ 5,000	
________________________________________________________________________________

$ 5,000.     Wilson, Williamson, & Co."

And further gave in evidence, that one of the notes stated in said receipt is the note in suit in this cause. Whereupon the defendant, by his counsel, prayed the Court to instruct the jury as follows: First. That the plaintiffs are not entitled to recover upon the aforegoing evidence if the jury believe the same; because it appears from such evidence that said plaintiffs have been paid and satisfied the full amount of principal and interest due upon the promissory note, upon which the action is brought, and have no interest therein, and that said note is therefore extinguished. Second. That also upon said evidence, if the jury believe from the same, that the principal and interest of the note upon which the action is brought, and offered in evidence by plaintiffs,  [**10]  has been paid to the plaintiffs since the institution of the action; that then the plaintiffs are only entitled to recover nominal damages; both of which instructions the Court [ARCHER, Ch. J., and KELL, A. J.] refused to give, being of opinion that the defendant had adduced no evidence to shew, that any payment had been made to the plaintiffs by the defendant, or by his agent; but that the sum received by the plaintiffs from said Riston, must be considered as a consideration paid by him to the plaintiffs for an equitable assignment of the plaintiffs legal interest in the cause of action.

The defendant excepted; and the verdict and judgment being against him, he appealed to this Court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

D gave a note to W for his accommodation, who endorsed it to S, for the full value. At the time S advanced the money, R was present and pledged his word to S, that if the note was not paid at maturity he would pay it. The note not being paid, S brought suit against D; pending the suit R made S several payments on account of the note, and at the last payment received from S a receipt, concluding as follows: "which is in full of a note held by me against D, now in suit, and proceeds of the same properly belonging to said R." A few days before the trial of the cause and some months after the last payment, the suit was entered on the docket for the use of R. It appeared that R was entitled to the beneficial interest in the note, and that S had no other interest than what arose from an obligation to prosecute the suit to final judgment for R's use. HELD: that as the payment to S was not made by D, or on his behalf, that the suit could be carried on for R's benefit as the equitable assignee.

A promissory note may be purchased without taking an endorsement as well after, as before suit brought. The purchaser has the beneficial, and the vendor the legal interest; and the suit may be carried on without entering the use.  

COUNSEL:
Scott, for the appellant, contended.

1. That there was evidence offered on the part of the defendant to go to the jury, for the purpose of showing, that at the time of the trial, the note upon which the action is brought had been paid, and that the plaintiffs at that time had no interest therein. 2. That upon the evidence the plaintiffs, if entitled to recover at all, were only entitled to nominal damages. 3. That the payment of the note by Riston, extinguished all [**11]  right of action thereon. 4. That the plaintiffs having been paid the amount of their claim by Riston, voluntarily, and without the request or assent of the defendant, that Riston could not by that payment entitle himself to have the suit prosecuted for his use. He referred to Smith vs. Pickering, 6 Esp. Rep. 50. Holland vs. Jourdine, 1 Holt. 6. 3 Serg. and Low. 5. The act of 1763, ch. 23, sec. 7. Brown vs. Davis, 3 Term. Rep. 83. Baily on Bills, 118, 454. Brown vs. Turner, 7 Term. Rep. 630. Tinson vs. Francis, 1 Camp. 19. Onion vs. Paul. 1 Harr. and Johns. 114. Norwood vs. Norwood, 2 Harr. and Johns. 238. Allstan vs. Contee, 4 Harr. and Johns. 351. Morgan vs. Reintzell, 7 Cranch. 273. Heighe vs. Farmers' Bank, 5 Harr. and Johns. 68. Barger vs. Collings, 7 Harr. and Johns. 213. Owings vs. Owings, 1 Harr. and Gill. 484. Hollingsworth vs. Floyd, 2 Harr. and Gill, 87. McEvers vs. Mason, 10 Johns. Rep. 224.

Meredith and J. Raymond, for the appellees.

1. The money paid to the appellees, Allen & Co. was not paid by the appellant, but by a stranger, and this circumstance distinguishes the case from all the cases referred to by the appellant's counsel. It was not paid at the instance [**12]  and request of the appellant, or with a view to extinguish the debt, nor was it so received by the Allens. Under such circumstances the payment is never regarded as extinguishing the debt. Merryman vs. State, 5 Harr. and Johns. 424. Gray vs. Wood, 2 Harr. and Johns. 328. Mechanics' Bank vs. Hazard, 13 Johns. Rep. 354.

2. The payment by Riston operated as an equitable assignment of the suit to him. If the payment does not operate as an assignment, the remedy of the party paying is gone: he cannot sue for money paid, because he could not make himself the creditor of Williamson without his consent, and the money was paid voluntarily.

3. The defendant is not in a worse condition than before the assignment. If the want of consideration between himself and the payees, could have been taken advantage of before the entry for the use of Riston, it could afterwards. This point however is not before this Court, not having been raised below.

4. A party receiving a note does not take it subject to the equities existing between all the preceding parties. He stands in the shoes of his assignor, and no defence can be made against him, which would not have been good against his assignor.  [**13]  

They referred to Gray vs. Wood, 2 Harr. and Johns. 328. Ringgold vs Tyson, 3 Harr. and Johns. 178. Hudson vs. Goodwin, 5 Harr. and Johns. 115. Day vs. Lyon, 6 Harr. and Johns. 140. Kiersted vs. Rogers and Garland, Ib. 285. 13 Johns. Rep. 354, 357. Holland vs. Jourdine, 3 Serg. and Lowb. 5, 6. Brown vs. Davis, 3 Term. 83. Heighe vs. Farmers' Bank, 5 Harr. and Johns. 68. Hollingsworth vs. Floyd, 2 Harr. and Gill, 87.

Taney, (Att'y Genl.) in reply.

1. Riston is no party to the note, either as drawer or endorser, and can claim no privileges as such. Being an accommodation note, the drawer is to be considered as the security, and the payees as the principal debtors: the direction by the Court, that the payment by Riston, was a consideration for the assignment of the legal interest of Allen & Co. was deciding a question of fact, as it depended upon the intention with which the payment was made. It cannot be said that there was no evidence to show that his intention might have been to extinguish the debt. The fact that a term intervened between the payment and endorsement to his use, was evidence either that he designed to extinguish the note, or that he paid it, as security [**14]  for the actual borrowers, Wilson, Williamson & Co. and in either case he had no right to sue. Mechanics' Bank vs. Hazard, 13 Johns. Rep. 356. If he paid, as security for the payees, who are the principal debtors, he stands in their shoes, and as they could not sue, he cannot. 2. The payment was made before Riston became a party to the suit, and by it the claim was extinguished, or reduced to nominal damages. The subsequent endorsement to his use, could not revive it.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*353]  BUCHANAN, Ch. J., delivered the opinion of the Court.
The promissory note on which the suit was brought, was drawn by the appellant, David Williamson, in favor of Wilson Williamson, & Co. and by them endorsed to the appellees, S. & M. Allen, & Co. The note appears to have been drawn for the accommodation of Wilson, Williamson, & Co. and to enable them to raise money upon it. At the time of the endorsement by Wilson, Williamson & Co. the endorsees, S. & M. Allen, & Co. the appellees, advanced to them the full amount of the note, which not being paid at maturity, they brought suit against [**15]  the drawer, which was entered on the docket for the use of George Riston. When S. & M. Allen, & Co. advanced the money on the note to Wilson, Williamson & Co. George Riston was present, and pledged his word to them, that if the note was not paid at maturity, by the maker, or endorsers, he would pay it; and did after the institution of the suit, pay to them the amount of the note. The entry on the docket, "for the use of George Riston," was made on the 25th of November, 1827, only three or four days before the trial. The amount so paid by Riston, was in different sums, and at different times, the receipt given to him for which, by S. & M. Allen, & Co. is dated the 19th of February, 1827, when the last was paid, and concludes in these words, (after stating the different sums paid,) "which is in full of a note, held by us against D. Williamson, for $ 2500, which note is now in suit, and the proceeds of the same properly belonging to said Riston." And in an answer by Fowler, one of the firm of S. & M. Allen, & Co. to a bill of discovery filed pending the suit at law, by David Williamson, it is alleged that in consideration of the payment by  [**16]  Riston, "he is now entitled to the beneficial interest in the note," and that S. & M. Allen, & Co. have no other interest in the note, than what arises from an obligation to prosecute the suit to final judgment for his use and benefit. This answer and receipt, which is made an exhibit and referred to in the answer, were offered in evidence by David 

 [*354]  Williamson, the appellant, and furnished the only evidence in the case relating to the payment by Riston, and the interest he acquired in the note.
In this state of facts it is contended, that the note and the interest of S. & M. Allen, & Co. the appellees, therein, were extinguished by the payment to them of the amount, and that he was not entitled to recover, or if entitled at all, that he was not entitled to recover more than nominal damages. Admitting that if the whole amount of the principal and interest of the note, was paid to the appellees by the appellant, or by Riston, for, and on his account, and as his agent after the bringing of the action, they were not entitled to recover more than nominal damages; yet there is nothing appearing in the record, that would have justified the Court, in instructing [**17]  the jury either, that the appellees were not entitled to recover, or that they were only entitled to recover nominal damages, as was prayed at the trial, and is insisted on here; which would have been to assume the fact, that the payment was by the appellant, or by Riston, as his agent in discharge of the note. For if the payment was not made by him, or his agent in discharge of the note, or with that intention, it does not necessarily follow, that it was thereby extinguished. Riston or any body else might have purchased it, without taking an endorsement by the appellees, as well after as before suit brought, which is not understood to be denied; and thus have acquired the beneficial interest, whilst the legal title remained in the appellees. And if Riston did purchase it, or advance the money upon it, not on account of, or as the agent of the appellants, and for the purpose of discharging it; but on his own account, and with the intention of acquiring the beneficial interest, and suffering the legal title to remain in the appellees, for the purpose of carrying on the suit, which he had a right to do, the note was not thereby extinguished, but remained in force, and no [**18]  injury was done to appellant, who was not thereby deprived of any defence, that he would have had against the appellees, if no such 

 [*355]  transaction had taken place, and they had gone on to trial, as the legal and equitable holders. If Riston had purchased the note, or the beneficial interest therein, before the institution of the suit, but after it had reached maturity, without taking an endorsement, he could not have sued in his own name, but in the name only of the appellees, in whom the legal title remained for his use, subject to all the equities of the appellant, as against the appellees. And in this respect it makes no difference, when the purchase is made, whether before or after the bringing of the suit, the rights of the defendant being no more affected in the one case than the other. In the case of a purchase before suit brought, the entry for the use of the purchaser, if made at all, (which is not necessary for the purpose of carrying on the suit,) may as well be made at any time after, as at the time of bringing the suit, and it is as difficult to perceive why such purchase may not be made as well after, as before a suit is brought. For the principle here assumed,  [**19]  that the purchase of a promissory note, or the payment of the amount to the holder, not by the maker, nor on his account, nor with the intention to discharge it, but with a view of acquiring the beneficial interest in it, does not extinguish the note, whether made before, or after suit brought, but if made before and without endorsement, that suit may be brought in the name of him, in whom the legal title remains, for the use of him, who has thus acquired the beneficial interest, or if after suit brought, that the suit may be carried on in the name of the original plaintiff, for his use, and that the defendant can take no advantage of it, it is quite sufficient to refer only to Gray and Biddle, vs. Wood and Wife, 2 H. & J. 328. Mechanics Bank vs. Hazard, 13 Johns. 353. And Merryman vs. The State, 5 H. & J. 423. The circumstance urged in the argument that Riston was present, when the note was endorsed to the appellees, and said if it was not paid at maturity, by the maker or endorsers, he would pay it, can have no influence upon the decision of this cause. That 

 [*356]  pledge, if it can be so called, was made, for any thing [**20]  appearing in the record, without consideration, and placed him under no obligation to pay it. The money then was not paid by the appellant; and if it was not paid by Riston on his account, or as his agent, nor with the intention to discharge the note, but with a view of acquiring the beneficial interest himself and that the suit should be prosecuted for his use, there is no pretence that the appellees were not entitled to recover, or only entitled to recover nominal damages, though only nominal parties, and Riston the real party in interest to the suit.
Is there then any thing in the record to show, or from which a jury could infer, that it was paid by Riston, on the appellant's account, or as his agent, with a view to discharge the note, and not with the intention to acquire the beneficial interest himself? To say nothing of the evidence furnished by the answer of Fowler, one of the appellees, to the bill of discovery by the appellant, "that Riston, by paying the amount of the note, had entitled himself to the beneficial interest of it," and that the appellees "had no other interest in the note, than what arose from an obligation, to prosecute the suit to final [**21]  judgment, for his use and benefit," the receipt of the appellees to Riston for the amount paid by him, which, with the answer of Fowler, is the only evidence in the cause, in relation to that subject, and that too produced by the appellant himself, speaks a language not to be misunderstood. It is this "in full of a note held by us against D. Williamson for $ 2500, which note is now in suit, and the proceeds of the same properly belonging to said Riston." The proceeds of the note could not have belonged to Riston, unless he had acquired the beneficial interest in it; and if he paid the money to the appellees, for and on account of the appellant, and with the intention to discharge the note, it would thereby have been extinguished, and he neither could not intend to have acquired any beneficial interest in it. The proceeds then of the note, could only properly have belonged to Riston, as stated in the receipt, on the 

 [*357]  ground that he paid the money, not for the appellant, or as his agent, but on his own account, and thereby entitled himself to the beneficial interest in the note, with the right to pursue it in the name of the appellees.
Thus it appears [**22]  from the appellant's own showing, that the payment of the money was not made by him, nor by his agent in his behalf. He therefore could not in any manner avail himself of it.
JUDGMENT AFFIRMED.  

11 of 34 DOCUMENTS 

STATE vs. JOHN, alias JACK DENT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 8; 1830 Md. LEXIS 42 

December, 1830, Decided 

PRIOR HISTORY:
 [**1]   Error to the City Court of Baltimore.

The defendant in error, was tried on the following indictment, in Baltimore City Court, at June term, 1830.

"State of Maryland, City of Baltimore, to wit:

The jurors of the State of Maryland, for the body of the city of Baltimore, do upon their oaths present, that John Dent, late of the city aforesaid, negro, otherwise called Jack Dent, on the 15th day of April, 1830, with force and arms, at the city aforesaid, in and upon one Joseph Daiger, then and there being one of the constables of the city of Baltimore, and in the execution of his the said Joseph's duty as such, and in the peace of God, and of the said State, then and there being, did make an assault, with the intent him the said Joseph Daiger, then and there feloniously, wilfully, and of his malice aforethought to murder, contrary to the form of the act of assembly in such case made and provided, and against, &c."

The second count was for a common assault and battery.

The defendant pleaded not guilty, and there was a general verdict of guilty, upon both counts of the indictment, when a motion was made in arrest of the judgment.

1st. Because, "the averment that [**2]  Daiger was in the due execution of his office, is not made with time and place."

2d. "The means with which the assault was made, to carry into effect the intent, are not stated."

The City Court pronounced the following judgment:

"The first reason is not supported. On examination of the indictment it will be found, that the time and place in both counts, are correctly averred. The motion on this ground, is therefore overruled.

The second reason, we think, is well founded. The act of assembly does not affect the form of the indictment, or the evidence necessary to support it, but leaves both as at common law, only changing the nature of the punishment. The offence is still a misdemeanor. The only question therefore, is, whether the means or instrument by which the intention was to be effected, ought to have been stated in the indictment. And we think they ought to have been. In ordinary cases of assault, the means, or instrument of inflicting the injury, are mere matters of aggravation, and therefore may be inserted or omitted, without detriment. But it is otherwise, where the assault is accompanied by an intention to commit murder. In that case, the means or instrument [**3]  used, are material and necessary in the description of the offence, as they indicate the malicious intention of the party, and must therefore be stated as well in this case, as where the crime has been consummated; and for this plain reason, amongst others, because in both, the adequacy of the means, as well as their use must be proved before the party can be convicted, and no evidence should be received of them, unless they are stated in the indictment. It will be found on recurrence to Chitty, Starkie, and Archbold, that all the precedents of indictments at common law, for offences of this kind, are in conformity to this opinion. The court therefore arrest the judgment on the first count, but direct the clerk to enter it upon the second."

The present writ of error, was thereupon prosecuted by the State.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

In an indictment for an assault with intent to murder, it is not necessary to state the instrument, or means made use of by the assailant, to effectuate the murderous intent.

The means of effecting the criminal intent or the circumstances evincive of the design with which the act was done, are considered to be matters of evidence for the jury to demonstrate the intent, and not necessary to be incorporated in an indictment. 

COUNSEL:
Taney, (Attorney General,) and Gill, for the State, contended, that an indictment for an assault with intent to murder, under the act of 1809, ch. 138, is sufficiently certain, which charges the assault to have been made with that intent. That in such case neither the special manner of the assault, nor the circumstances from which [**4]  the particular intent, may be inferred, need be stated.

They referred to the act of 1809, ch. 138, sec. 4. 3 Chitty's Cri. Law, 569, 591. State vs. Cassel, 2 Harr. and Gill, 410. 1 East. Cr. Law, 411. 3 Johns. Rep. 511. 1 Stark on Plead. 98, 102.

No counsel argued for the defendant in error.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*10]  STEPHEN, J., delivered the opinion of the Court.
This case comes up on a writ of error to Baltimore City Court, and the sole question which it presents for the decision of this court is, whether according to the principles of criminal pleading, it is necessary in an indictment for an assault with intent to murder, to state in the indictment, the instrument, or means made use of to effectuate the murderous intent. It is incontrovertibly true, that the main object of all pleadings, both civil and criminal, is to apprise the party charged, of the nature of the case, to which he is called upon to respond, so that he may not be taken by surprise, and that he may come prepared to defend himself against the allegations of the opposite party. But we do not think that the principles [**5]  of criminal jurisprudence require in this case, any thing more than that the offence should be charged in the language of the statute by which it is created. The indictment in this case, is founded upon the act of 1809, commonly called the penitentiary law-- the offence as defined, and prohibited by that law is an assault with intent to murder. This is the character given to the assault charged in this indictment. It is averred that it was committed with intent to murder, and such averment we consider to be a full compliance with the requisitions of the law. The means of effecting the criminal intent, or the circumstances evincive of the quo animo, with which the act was done, are considered to be more properly, matters of evidence for the jury, to demonstrate the intent, than proper to be incorporated into the indictment; because that intent may be proved or illustrated by such a variety 

 [*11]  of circumstances, as it would be very inconvenient, at all times, to embody in the indictment, or place upon the record; and if the means adopted, are necessary to be stated, it would seem to follow as a necessary consequence, that all the means, however multifarious, should be explicitly [**6]  averred. Sir Matthew Hale observes 2 P. C. 193, "That in favor of life, great strictnesses have been in all times required, in points of indictments; and the truth is, that it is grown to be a blemish and inconvenience in the law, and the administration thereof. More offenders escape by the over easy ear given to exceptions in indictments, than by their own innocence; and many times gross murders, burglaries, robberies, and other heinous and crying offences, escape by these unseemly niceties, to the reproach of the law, to the shame of the government, and to the encouragement of villainy, and to the dishonor of God; and it were very fit, that by some law, this overgrown curiosity and nicety, were reformed, which is now become the disease of the law, and will, I fear, in time, grow mortal, without some timely remedy." It must be admitted, that there is much good sense in the above remarks, which are entitled to great weight, when it is considered that they proceeded from one of the most enlightened, humane, and christian judges, that ever graced or adorned the bench of British justice. That it is sufficient to charge the offence in the words of the prohibitory statute,  [**7]  will be found in 2d Burr. 1036, where the court says, "It is enough for the prosecutor to bring the case within the general purview of the statute has general prohibitory words in it; for where an indictment is brought upon a statute which has general prohibitory words in it, it is sufficient to charge the offence generally, in the words of the statute."
In 3d Johns. N. Y. Rep. 511, the same principle is recognized, and affirmed when the court says, "The intent to commit 

 [*12]  murder, was here charged in the words of the statute, and we think that was sufficient."
This indictment is for an assault and battery, and the quo animo was to be collected from the circumstances. It was enough to state with the usual precision, the facts requisite to constitute an assault and battery, and to aver the intent with which it was made. This intent might have been inferred, and proved from the declarations of the defendant, previous to the assault. The indictment required no other facts, than were necessary to establish an assault and battery. The crime charged, was after all, but a misdemeanor. It was not a felony, though the intent was to commit one. The same principle has [**8]  been affirmed and established by this court, in the case of the State vs. Cassel, 2 H. & G. 407. Upon the whole, we think, that the facts and circumstances evincive of the murderous intent, are matters of evidence, to be submitted to the jury, and are not necessary to be charged in the indictment.
The judgment of Baltimore City Court is therefore reversed.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

12 of 34 DOCUMENTS 

FRIDGE vs. THE STATE, use of KIRK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 103; 1830 Md. LEXIS 54 

December, 1830, Decided 

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

This was an action of Debt commenced on the 31st of January, 1825, in the name of the State of Maryland, at the instance, and for the use of Eliza Ann Kirk, against Alexander Fridge, on a bond executed by one Owen Dorsey as the principal, and the said Fridge and another as sureties, dated the 11th of April, 1817, conditional for the faithful discharge of the trust of said Dorsey, as guardian to the said Eliza Ann Kirk and Ann C. Kirk. All errors in pleading on both sides were released; and it was agreed that either party might raise any objection, which could be raised by any form of pleading, or on motion.

1. At the trial, the plaintiff read in evidence the guardian's bond, and an account settled by the guardian with the Orphans Court of Baltimore county, on the 6th June, 1820, shewing a balance due E. A. Kirk of $ 1018 77. And proved that Eliza Ann Kirk, at the time of the trial of this cause, was under the age of twenty-one years.

Thereupon the defendant, by his counsel, read in evidence, the following record: "The State of Maryland. At an Orphans Court held for Baltimore county, at the Court-house, in the city of Baltimore,  [**2]  on the 11th April, in the year 1817, present, Owen Dorsey, James Carroll, Jr. Esquires. Among other proceedings were the following, viz:--Ann Catherine Kirk and Eliza Kirk, orphan children of Thomas Kirk, deceased, come into court, and the court appoints Owen Dorsey their guardian, who here present in court accepts the guardianship, and offers Alexander Fridge and John Mitchell, as his securities, who are approved of by the court, and bond ordered to be executed accordingly. Bd. fd."--and also read the following account, which was duly proved. Baltimore county, sc.--The account of Owen Dorsey, guardian of Eliza Ann Kirk, orphan daughter of Thomas Kirk, late of said county, deceased.

________________________________________________________________________________
1820.	June 6. This accountant charges	
	himself with the balance due on	
	his last account rendered this date,	
	amounting to,	$ 1,018 77	
1824.	 July 7. And with interest on	
	$ 922 25, from the 21st March, 1820,	
	to this date,	237 57	
	
		$ 1,256 34	
________________________________________________________________________________

________________________________________________________________________________
And he craves an allowance for the follow-	
   ing payments and disbursements:	
Cash paid at sundry times, &c.	$ 234 76	
Cash paid his ward in full, as per release	
   appears,	1,021 58	
	
Estate accounted for,	$ 1,256 34	
________________________________________________________________________________

 [**3]  

And also read a full and formal release from Eliza Ann Kirk to Owen Dorsey, as her guardian, acknowledged and recorded according to law. And proved, that at the time of the appointment of said Owen Dorsey, the mother of said Eliza Ann Kirk, was living, and that no process appeared to have issued to bring her before the court, to renounce her right of guardianship.

Whereupon the plaintiff proved by one Fielder Israel, that a few weeks after E. A. K. arrived at the age of sixteen years, (as he understood from her mother,) she and her mother called upon said Owen Dorsey for a settlement; that said D. fixed a day to make such settlement, and on that day, the daughter and mother called; that D. then told them he had been disappointed in getting all the money, but that he had procured four or five hundred dollars, which she, Miss K., could take, and let the affair remain until he got the balance; that D. then counted out the money, and laid it on the desk which lay between said E. and him, and which money, she could have taken up at any moment. The mother and daughter both declined taking the money; the mother telling Mr. D. that her daughter did not want, nor had any use for the [**4]  money, and that they preferred it all should remain in his hands (except fifty or sixty dollars for which the daughter then had immediate occasion,) and receive interest for it, inasmuch, as if the money was taken from Mr. D. it would be deposited in bank, and the daughter would not receive the benefit of interest. Mr. D. then said, he would keep the money, and pay interest therefor, and gave the daughter his note for the amount. He then took fifty or sixty dollars out of the money so counted down, which fifty or sixty dollars he paid to said E., the rest of the four or five hundred dollars he put into his pocket, and gave to said E., his promissory note for $ 961 38, dated Baltimore, July 15th, 1824, payable on demand, with legal interest, on which, were endorsed a number of small payments, in all $ 131 38; that Dorsey, before he gave such note, told E. and her mother, that E. must give him, D., a release, to enable him to settle his account in the Orphans Court, which she consented to do; that D. directed witness to draw such release, who did so, but before he suffered E. to execute the same, he explained to her fully and minutely the nature and character thereof; and told her and [**5]  her mother that the effect of it would be to discharge Mr. D. and his securities, on his guardian's bond and to retain only Mr. D's liability on the note; and after such explanation the said E. executed such release. The witness also proved, that after such note was given by D. to E. and such release executed, the said E. called and got several sums of money of D., all of which were credited on said note.

Whereupon the defendant, by his counsel, prayed the opinion of the court, and their direction to the jury, as follows: 1. If the jury believe, that Eliza Ann Kirk had attained the age of sixteen years on the 15th day of July, 1824, and executed the release which has been given in evidence, with a full understanding of its effect and import, that then, this action cannot be maintained. 2d. That if the jury believe, that at the date of the appointment of Owen Dorsey as guardian, the said Eliza Ann Kirk had a natural guardian, that then the said court exceeded its jurisdiction in making the said appointment, and that the bond being void, this action cannot be maintained. 3d. That if the jury believe Eliza Ann Kirk is under the age of twenty-one years at this time, this action cannot [**6]  be maintained. 4th. That if the jury believe Owen Dorsey, the person appointed guardian, was the same Owen Dorsey who acted as one of the judges of the Orphans Court named in the certificate of appointment of guardian, which has been given in evidence, that then, this action cannot be maintained. 5th. That if the jury believe that Owen Dorsey, after the 15th day of July, 1824, when Eliza Ann Kirk attained the age of sixteen years, offered to pay, and counted out to the said Eliza Ann Kirk, the sum of four or five hundred dollars, which she declined to receive, and afterwards took the note of Owen Dorsey in preference, as given in evidence, that such tendering and counting out the money, was an extinguishment of the claim which she, the said Eliza Ann Kirk, might have had, to the extent of such sum as the jury may believe was so tendered. But the court [ARCHER, Ch. J. and HANSON, A. J.] refused all and each of said prayers of defendant; and were of opinion that the plaintiff was entitled to recover, if the jury believe the testimony. The defendant excepted.

2. The plaintiff then prayed the court's direction to the jury, that upon the evidence in the first exception, the plaintiff [**7]  is entitled to recover interest upon the balance decided to be due Eliza Ann Kirk, from the period the said balance became due, or at least from the commencement of this action. But the court being divided in opinion, refused to grant said direction, or to direct the jury that the plaintiff was entitled to recover any interest, but left the question of interest to the jury, to be by them decided. The plaintiff excepted. There was a verdict, and judgment for the plaintiff, and an appeal by both parties to the Court of Appeals.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action upon a bond entered into by a guardian appointed by the Orphans Court, brought for the use of the ward, the mere fact that at the time of the guardian's appointment, a natural guardian was in existence, does not invalidate the appointment and so render the bond a nullity. That court having jurisdiction to appoint a guardian in certain cases, even where there is a natural guardian, must be presumed to have acted rightly, when the question of the validity of the appointment arises incidentally, and nothing more than the existence of natural guardian appears.

The judgment of a court of competent jurisdiction, is, as to all matters decided by it, conclusive; and cannot be afterwards questioned by any other tribunal, when coming in incidentally.

So the appointment by the Orphans Court, of a person as guardian, who at the time was one of the judges of the court, cannot be afterwards questioned in an action upon his bond, though at the moment of the appointment, the court could not have acted without the concurrence of the individual appointed.

Where the condition of a bond recited that A was guardian, &c., neither the principal obligor nor surety therein, in an action upon such bond, can deny that he was guardian in the face of the recital, nor set up as a defence any supposed irregularity in obtaining the appointment.

An offer to pay only a part of a sum due, cannot avail a party as a tender. A creditor is under no obligation to accept less than the full amount due him.

A female, under the age of 21, cannot execute a release to her guardian, though she has capacity to receive payments from him at the age of 16--A release, which affords more protection to a guardian than a mere receipt, is in its nature and tendency to the prejudice of the infant, and opposed to sound policy.

Some contracts made by infants are binding, such as contracts for necessaries. Some are void; and others are voidable only, such as contracts that may be for the benefit of the infant. A contract that a court can see and pronounce to be to the prejudice of the infant, is void.

The promissory note of a guardian given to an infant female ward over the age of 16 years, is no payment.

It is the duty of a guardian to a female ward, on her arrival at the age of 16 years, to exhibit a final account to the Orphans Court, and to deliver to the ward all her property in his hands. So far as the property of a ward in the guardian's hands consists of money, this constitutes a contract to pay money when she attained the age of 16, which is a day sufficiently certain in case of failure to pay, to entitle the ward to interest absolutely.

In an action in the name of the State, the obligee in a guardian's bond, the non-age of the cestui que use, the ward, who was more than 16, is no defence, and does not form the fit subject of a plea.  

COUNSEL:
R. B. Magruder for appellant, contended,

1. That the ward being of full age to receive her personal property, was of full age to do any act required or authorised by law, to evidence, and acknowledge the receipt of her estate; and that the release executed by her, is a valid release. 1 Thos. Co. Lit. (H) 175. 170, note (28.) 163, note (a.) 1 Blk. Com. 463. Act of 1798, ch. 101, subchap. 3, sec. 3. Act of 1715, ch. 39, sec. 13. Act 1798, ch. 101, sub-ch. 12, sec. 1, 15. 1809, ch. 168, sec. 1, 15. 1829, ch. 216, sec. 6, 7. 1 Thos. Co. Lit. 177. Davis vs. Jacquin, 5 Harr. and Johns. 109. Bowers vs. the State,  [**8]  7 Ib. 35, 36. 2. The Orphans court had no power to appoint a guardian, and exceeded its jurisdiction in so doing, because the ward had a natural guardian, who should have been called on to bond, and this should have appeared on the proceedings. 1798, ch. 101, sub-ch. 12, sects. 1, 2, 3, 20. To shew that the objection could be made in this court, he cited Bigely vs. Stearns, 19 Johns. Rep. 39. Spedden vs. State, 3 Harr. and Johns. 251, 252 and 276 (note.) 3. That the ward being under the age of 21 years, at the trial of the cause below, and of course when the suit was brought, could not maintain the action. Lowe and Gist, (note) 5 Harr. and Johns. 106. 1 Thos. Co. L. 175, (H) 172, (a.) 4. That the appointment of Owen Dorsey as guardian, by two only of the judges of the Orphans Court, one of which judges was the said Dorsey, was invalid, and therefore the bond of the guardian was void. 1798, ch. 101, sub-ch. 15, sec. 8. 5. The payment or tender, of part of the money claimed by the plaintiff below, made by the guardian in the manner set forth in the evidence, was an extinguishment of the claim of the plaintiff, pro tanto. 2 Kent. Com.--2 Eden's Cases, 72. Upon the question of interest [**9]  on the plaintiff's appeal, he referred to Newson vs. Douglass, 7 Harr. and Johns. 453.

Johnson for appellee, on the first point cited Lowe vs. Gist. 5 Harr. and Johns. 106, note, (a.) Davis vs. Jacquin and Pomairat, Ib. 100. Bowers vs. State, 7 Ib. 32. On the second and fourth point he referred to the Acts of 1798, ch. 101, sub-ch. 12, sec. 1, 3. 1816, ch. 203, sec. 3. He argued that by these acts, the Orphans Court, is empowered to inquire into the facts, upon which, the authority of appointing guardians is to be exercised. In this collateral way, the propriety of this exercise of power cannot be inquired into. Raborg vs. Hammond, 2 Harr. and Gill, 50. 3 Bac. Abr. 50, Title Exors. and Admins. But if this court, could in this way examine the question, the appointment would not be held void, unless it appeared affirmatively that the natural guardian had refused to renounce. Barney vs. Patterson, 6 Harr. and Johns. 182. Taylor and McNeal vs. Phelps, 1 Harr. and Gill, 492.

The only evidence of the appointment, which it was incumbent on the plaintiff to produce, was the bond, which could have been relied on as an estoppel, if the defendant had denied the appointment. Dorsey could [**10]  not be allowed to say, that his appointment was invalid, because made by himself, nor can his securities make such a defence. In an action on a bond at law, a surety can make no defence, not open to his principal.

The third objection he insisted could not be maintained, as the State was the legal plaintiff; but at all events the objection should have been presented by a plea in abatement, which is the only mode, in which the infancy of a plaintiff can be taken advantage of. 2 Saund. 212, and note, 5. James, et al. Lessee vs. Boyd, 1 Harr. and Gill, 1. He argued that the release was void, and not voidable only, it being manifestly to the minor's prejudice. 2 Kent. Com. 190, 192. The note given by Dorsey, if good, merely secures to the ward his individual responsibility, and discharges his securities. Bowers vs. State, 7 Harr. and Johns. 36. Kean vs. Boycott, 2 Hen. Black, 511. If, however, the release was only voidable, it was competent to the minor to avoid it by suit, and she had done so. 2 Kent. Com. 194. But the circumstance of the contract being between guardian and ward, of itself renders it void. 5. The evidence in support of this prayer does not show a payment, there having [**11]  been no receipt by the creditor. Nor was it a tender, not being of the whole sum. 2 Saund. Plea. and Ev. 840. But if a tender, it does not go to bar the action, 3 Taunt. 95. Harding vs. Spicer, 1 Camb. 327. 2 Saund. Plea. and Ev. 836. Karthaus vs. Owings, 6 Harr. and Johns. 139. Upon the plaintiff's exception, he referred to Newson's Adr. vs. Douglass, 7 Harr. and Johns. 418.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*111]  BUCHANAN, Ch. J., delivered the opinion of the court.
The suit is by the State on a guardian's bond, for the use of a female ward, instituted after she attained the age of sixteen, but before she arrived at twenty-one, against one of the sureties in the bond. It is insisted on the part of the defendant below, First, That if Eliza Ann Kirk, for whose use the action was brought, had a natural guardian at the time of the appointment by the Orphans Court of Baltimore county, of Owen Dorsey, the principal in the bond as her guardian, the court exceeded its jurisdiction in making the appointment, that the bond is void, and the action cannot be maintained. Secondly, That if Owen Dorsey, [**12]  the person appointed guardian, was at the time of making the appointment, sitting as a judge of the court, with only one other judge, the appointment was invalid, and the bond void. Thirdly, That supposing Owen Dorsey to have been regularly appointed guardian, if after Eliza Ann Kirk attained the age of sixteen years, he offered to pay, and counted out to her the sum of four or five hundred dollars, which she refused to receive, and afterwards took the note of Dorsey in preference, such offering and counting out the money, was an extinguishment of her claim, to the extent of the sum so offered and counted out. Fourthly, That if after Eliza Ann Kirk attained the age of sixteen years, she executed to Dorsey a release of all claims and demands, with a full understanding of its import and effect, the action cannot be maintained. Fifthly, That if she was under the age of twenty-one years at the time of instituting the action, it cannot be maintained; and evidence of the facts upon which these questions are raised, was offered to the jury, and is set out in the record.

 [*112]  First then, suppose Eliza Ann Kirk had a natural guardian at the time [**13]  of the appointment of Owen Dorsey as her guardian, were that appointment and the bond given in pursuance of it void, for want of jurisdiction in the Orphans Court?
By the Act of 1798, ch. 101, sub-ch. 12, sec. 1, the several Orphans Courts, had the power to appoint a guardian to an infant until the age of twenty-one years if a male, and until the age of sixteen years if a female, if such infant has no natural guardian, nor guardian appointed by last will. And by the 3d sect. of the same sub-ch. 12, on the application of any friend of an infant, &c. to call on any natural guardian, or guardian appointed by last will, to give bond for the performance of his or her trust; and on failure or neglect of such guardian, to appoint another guardian. The distinction between an erroneous judgment by a tribunal having jurisdiction of the subject matter, and the judgment of a tribunal having no cognizance of the subject, is well known and acknowledged. If the mother of the infant in this case, who is claimed to have been her natural guardian, had asserted her rights as such, and taken upon herself the management and conduct of the infant's estate in the Orphans Court;  [**14]  or being called upon, had given bond for the performance of her trust, the Orphans Court, with a knowledge of the existence of such a guardian acting in pursuance of her trust, could not properly during the continuance of her authority, have appointed another guardian, and thereby have divested her of her rights. And as the rights, and authority, and power over the property and person of the infant, would be incompatible in two, such an appointment would have been void. If the natural guardian had assumed and entered upon her trust, and as such, taken upon herself the management of the estate of her ward in the Orphans Court, the appointment of Owen Dorsey, would have been an act not within the jurisdiction of that court, no more than would be the appointment of a second guardian, while the prior appointment 

 [*113]  of another by the same court, was remaining in full force and unrevoked. Unless the natural guardian had failed or neglected to give bond for the performance of her trust, on being called upon to do so, in pursuance of the 3d section of the 12th sub-chap. of the Act of 1798, ch. 101, or had been removed for cause, under the provisions of the 12th [**15]  section of the sub-chap. 15, it would not have been the case of an erroneous judgment by a court of competent jurisdiction, but the act of a tribunal having no cognizance of the subject, and therefore unauthorized and void, the Orphans Court having no power to create a guardian of its own appointment, in the case of an infant having a known, authorized, and qualified acting natural guardian. But though in relation to such a case, of a known, natural guardian asserting and exercising his rights, the Orphans Court is without jurisdiction; yet the appointment of a guardian, being a subject ordinarily cognizable in that court, and only excluded from its jurisdiction, by the circumstance of there being a natural guardian, or a guardian appointed by will, it does not follow, that the mere existence of a person ordinarily entitled to assume the office and trust of a natural guardian, is alone sufficient to divest it of its jurisdiction. That person, though known to the Orphans Court, may nevertheless reject or abandon the trust; in which event, a case in which a guardian may be appointed, a case within the jurisdiction of the court, is presented. That, may have been the case here;  [**16]  the mother of the infant, who might have assumed the office of natural guardian, may have rejected or abandoned the trust; or on being required to give bond for the performance of her trust, may have failed, or neglected to do it; and if so, in either case, the Orphans Court have the power to appoint another guardian. It does not indeed appear in this record, whether there was or not, such an abandonment of the trust, or failure or neglect by the natural guardian to give bond for the performance of it; but the Orphans Court having appointed another guardian, and there being nothing to show the absence of authority to 

 [*114]  do so, it is to be taken, that it acted within the sphere of its ordinary jurisdiction, and that what was done, was rightly done. And it not appearing to this court, to be the act of a tribunal, having no cognizance of the subject matter, it cannot be impeached here, coming thus incidentally in question.
And secondly, with respect to the appointment of Owen Dorsey as the guardian, he being present and sitting as one of the judges of the court, supposing it be so, yet being the act of a court of competent jurisdiction, whether that act was correct and [**17]  regular, or not, still it was the judgment, the act of that court, the correctness or regularity of which, it is not for this court collaterally to inquire into. The question of jurisdiction, is a question that may be examined into, and the acts of a tribunal having no jurisdiction may be reviewed by another court; but the judgment of a court of competent jurisdiction is, as to all matters decided by it, conclusive, and cannot be afterwards questioned by any other tribunal, when coming in incidentally. This is a doctrine too well established to admit of being enlarged upon. Besides Owen Dorsey having given his bond, in which he is stated to be the guardian of E. A. K., and having obtained possession of her property, it would not in a suit against him, have lain in his mouth to deny that he was guardian, in the very face of the recital in his bond, or to set up any supposed irregularity in obtaining the appointment; the recital in the bond being evidence as against him, that he was guardian. Nor does it lie in the mouth of his surety, against whom, the recital is equally evidence.
Thirdly, the offer by Owen Dorsey to pay to E. A. K. four or five hundred dollars, [**18]  and counting out the money, cannot avail the party here as a tender, being an offer of only a part of the amount due, and a creditor not being under any obligation to accept less than the full amount; nor is it insisted upon as a tender. And if it was a tender, it could not, as such, operate as an extinguishment of the claim pro tanto. But it is contended, that it amounted to 

 [*115]  and must be considered as a payment, to the extent of the sum so offered and counted out. But surely her express refusal to receive the part offered, and his agreeing to keep and pay interest upon the whole amount, could not constitute a payment, to the amount of the sum offered, and consequently was no extinguishment of any part of the claim.
Fourthly, by the Act of 1798, ch. 101. sub-chap. 12, sec. 1 and 15, power is given to the Orphans Court to appoint a guardian to an infant female, until she attains the age of sixteen or is married, when the guardianship ceases; and the ward or her husband, as the case may be, is entitled to receive from her guardian all her property. It has been decided by this court in Davis vs. Jacquin & Pomerait, 5 H. & J. 100, [**19]  that although that act confers on an infant female a new capacity, the capacity to receive from her guardian the whole of her estate, it does not take away or destroy her state of legal minority, nor remove her other disabilities; but leaves them as they were before, except in relation to the disposition of her real estate, which she is empowered to do by will at the age of eighteen years. And the same principle is recognized in Bowers' Adm'r vs. State use of Dryden, 7 H. & J. 32. The legal infancy, therefore, of a female, not ceasing at the age of sixteen, Eliza Ann Kirk, not having attained the age twenty-one years, at the date of the release set up in this case, was, in reference to her capacity to execute such an instrument, in contemplation of law, a minor.
Some contracts made by infants are binding, such as contracts for necessaries. Some are void, and others voidable only, such as contracts that may be for the benefit of the infant. But a contract that a court can see and pronounce to be to the prejudice of the infant, is void. And such, we think, is clearly the character of the instrument in question. It was executed on the ward's receiving from her guardian [**20]  his promissory note, for the amount belonging to her in his hands; and being a release in the language of it, "of and from all and every action, suit, claim or demand, &c." if 

 [*116]  good, it discharged him and his sureties from all responsibility on his guardian's bond, a higher and a better security than his promissory note alone, and was therefore to the prejudice of the infant. But independent of the peculiar circumstances of this case, we think a female infant between the ages of sixteen and twenty-one, incapable of executing a valid release to her guardian; considering from the character of the relation subsisting between the parties, the state of ignorance in which an infant usually is in relation to the condition of her affairs, and the conduct of the guardian in the execution of his trust, and the inducements to a guardian who has abused his trust, to seek that shelter behind a release improperly obtained, which a mere receipt would not afford him, that such instruments are in their nature and tendency to the prejudice of infants, and opposed to sound policy.
Fifthly, it does not appear to us to be at all material, whether Eliza Ann Kirk was of the age of twenty-one [**21]  or not, at the time of instituting the suit. She is not the legal plaintiff; the bond is to the State, the suit was brought in the name of the State, the legal plaintiff, and she is only the cestui que use; and it was not necessary for the purposes of the suit, to enter the use at all; though it is usually done in such cases, it might have been carried on as well without it, as with it. And being done, her non-age could not form the fit subject of a plea, the action not being brought in her name. We cannot distinguish this from the case of the State vs. Dorsey and others, 3 G. & J. 75. The same principle pervades both cases. We concur therefore with the court below on the first exception.
The question arising upon the exception taken on the part of the plaintiff below is, whether the plaintiff is entitled to interest on the balance found to be due to Eliza Ann Kirk, the cestui que use, and from what period? Which question the court below refused to decide, but left it to the jury to determine. The dealings between man and man are in their nature so various, that scarcely two cases occur 

 [*117]  presenting the same aspect. The question of interest [**22]  therefore, has been found to be one, not susceptible of the application to it, of any fixed and general rule, each case mainly depending upon its own peculiar circumstances.
This same question of interest, however, arose and was discussed in Newson's Adm'r vs. Douglass, 7 H. & J. 417, in which it was decided by this court, that the question was properly submitted to the jury by the court below, to be determined by them according to the equity and justice appearing between the parties, on a consideration of all the circumstances of that particular case, as disclosed at the trial. But it is there said, "there are indeed cases, not to speak of bonds, &c., in which interest is recoverable as of right--such as on a contract in writing to pay money on a day certain; as in the case of a bill of exchange or a promissory note; or on a contract for the payment of interest, or where the money claimed has actually been used," which in any aspect of this case would seem to be applicable to it. The guardian gave his bond for the performance of his duty as such, and by law it was his duty on the arrival of the ward at the age of sixteen, to exhibit a final account to the Orphans [**23]  Court, and to deliver to the ward all her property in his hands. Here was a contract, (so far as the property of the ward in his hands consisted of money,) to pay money when she attained the age of sixteen, which was a day sufficiently certain. The proof is, that when the ward had arrived at the age of sixteen, she called on the guardian for a settlement on a day appointed by him for that purpose; when he told her, that, "he had been disappointed in getting all the money, but had procured a part, which he offered to her;" that she declined taking it, preferring its remaining in his hands on interest, and that he agreed to keep the money on interest, and after paying her fifty or sixty dollars, gave her his promissory note for the balance due to her in his hands with interest. Here then is a case, in which the money was actually used; for he had so applied or disposed of it, that when 

 [*118]  called on for a settlement, he could only procure a part of it; it was not, therefore, lying by him unused. There was too, an express contract for the payment of interest, independent of the promissory note, which has a provision for the payment of interest, and is evidence of his keeping the [**24]  money on those terms. The plaintiff is therefore, entitled to recover interest from that time, on the amount of the balance retained by the guardian in his hands. And the court below erred we think, in not having so directed the jury, and in leaving the question to be decided by them.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

13 of 34 DOCUMENTS 

KALKMAN vs. CAUSTEN 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 357; 1830 Md. LEXIS 24 

June, 1830, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit by the appellee, James H. Causten, against Charles F. Kalkman, the appellant, commenced on the 2d day of July, 1825.

The declaration contained counts for work and labor, goods, wares, and merchandise, the money counts, and an insimul computassent; and also two special counts, under which no evidence was offered by the plaintiff.

The defendant pleaded non assumpsit, non assumpsit infra tres annos and actio non accrevit, &c. General replications and issues joined.

1. The plaintiff to support the issue on his part, offered evidence, that in the year 1814, a number of vessels were sunk at Fort M'Henry, for the defence of the city of Baltimore; that among them was the ship Temperance, owned by the defendant, and to shew the amount of the allowance made by the United States in favor of the defendant, he read in evidence the following letters and orders: "Baltimore, February 7th, 1821 -- Washington City, Jas. H. Causten, Esq. Dear Sir: I am very thankful for the information you had the goodness in communicating on the 3d inst. (which only got to hand yesterday)--it will be a source of sincere gratification to me, if your exertions [**2]  are crowned with that success which they so justly merit, and I rest assured that you will interest yourself equally as much for the Temperance's business, as that of the other vessels entrusted to your good management. When Mr. Williams comes thoroughly to know the situation of the ship owners, whose vessels were one of the principal causes of saving Baltimore, that gentleman will, no doubt, throw no impediments in the way of recovering what is so justly and so long since due. Chas. Fredk. Kalkman."

"The honorable William H. Crawford, Secretary of the Treasury--Sir: Please pay to Mr. James H. Causten, (out of the money retained at the Treasury for my account, say $ 1995 62, being the allowance awarded to me by the Secretary of the Navy, for the detention of my ship Temperance, under the act of 26th April, 1822, 'An act for the relief of sundry citizens of Baltimore') the sum of $ 399 12; the same being his proportion of said retained money, as stipulated to be paid to him for his services and expenses in collecting the proofs relating to the application of said vessel to the public defence; representing the merits of the case before Congress, which obtained the passage of said [**3]  law, and liquidating the ratio of compensation due to said vessel, under said law, before the Secretary of the Navy and the first Comptroller of the Treasury. With much respect, I am, sir, your most obedient servant, Chas. Fredk. Kalkman."

"Baltimore, March 5th, 1823. Dear Sir: In conformity to your wish, I now enclose, (signed by me,) the letter for the Honorable the Secretary of the Treasury, also a letter addressed to Mr. John J. Thompson, on the Temperance's business. The papers in question, I have not been able to lay my hands on, but left such instructions at home, as will, in all likelihood, procure them. If in a little while hence, you will please call on Mrs. Kalkman, for that purpose, they may, with your friendly assistance, probably be found. Be assured, my dear sir, that you have my warmest wishes for your success, as to the irksome and intricate business still in suspense at Washington; not for my sake do I wish this, but on your own account, because the sacrifices which you have already made, and are still ready to make, richly entitle you thereto. Chas. Fredk. Kalkman." Jas. H. Causten, Esq."

And further, the plaintiff gave in evidence that the said Causten [**4]  had labored diligently, as agent of said owners of ships, and that the allowance awarded by the United States, was owing to the plaintiff's exertions in procuring testimony relative to said claim, &c. and further proved, the value of said services was equal to 20 per cent. on the amount allowed by government. The defendant, to support the issue on his part, proved that the defendant, on the 18th of September, 1817, applied for the benefit of the Insolvent Laws of Maryland, and was under said laws duly released; that upon his said application, Elias Glenn was appointed trustee, for the benefit of said Kalkman's creditors, and he further offered to prove, that the said trustee entered into a contract with the said Causten, touching indemnification for said ship Temperance, which is as follows: "Baltimore, 12th December, 1821. Mr. James H. Causten. Sir: As you have undertaken to go to Washington this winter, to attend Congress on the subject of our petition before that honorable body, respecting the claim we have preferred, for unsatisfied damages and losses, sustained by our vessels sunk at the entrance of this harbor in the month of September, 1814, under the requisition of the commander [**5]  in chief General Samuel Smith, whereby this important post, including Fort M'Henry, was saved from destruction, by the impediment which they presented to the passage of the enemies ships of war. We therefore hereby constitute you our agent for the above purpose, and request you will pay the necessary attention thereto; and in the event of your succeeding in obtaining the passage of a bill for our indemnity, we agree to allow you at the rate of twenty per cent. on whatever sum or sums we may receive, and which, through your agency and attention, may be authorized by law of Congress, to be paid to us respectively, whether it be by reference to the Secretary of the Navy or War, or other departments of the government. In the course of your stay at Washington, you will please to communicate occasionally with any one of us for the information of the whole, as well as for our government, in case we should deem it requisite to instruct you further on the subject. Henry Payson & Co. Attorneys of Obed Mitchell, owner of ship Mars, &c."

"I agree, as trustee of Chas. F. Kalkman, to allow the above commission, provided the Court will permit me to do so. K was the owner of ship Temperance.  [**6]  Elias Glenn, trustee of Kalkman, December 12th, 1821." "John Brice, trustee of J. H. Causten," and further proved that, upon Causten's application to said trustee, he referred him to Kalkman for information, and the correspondence on the subject of indemnification for said ship Temperance, the said trustee having no knowledge of the claim. The plaintiff further proved by Doctor M'Culloh, Deputy Collector of the port of Baltimore, that by order of the government, the sum of $ 1995 62 was, after the said allowance to the owners of said vessel the Temperance, passed to the credit of said defendant, on certain custom house bonds given by said defendant, to the United States. Thereupon the defendant prayed of the Court the following directions to the jury.

First. That the plaintiff has adduced no evidence of any undertaking between him and the defendant, touching services for indemnification for the ship Temperance; by which the said Kalkman is liable to the said Causten, and that the plaintiff therefore is not entitled to recover.

Second. That if the jury shall believe, that the contract, if any existed between the plaintiff and defendant, was, that the plaintiff should receive [**7]  his compensation, if any, out of the funds which should be awarded by the United States in favor of the ship Temperance, and that no part of said fund ever came to the hands, or was at the disposal of said defendant, or his trustee aforesaid, Elias Glenn, and that said Kalkman directed the Secretary of the Treasury of the United States, to pay the said Causten the said compensation, by an order received by the said Causten, from said Kalkman, upon the said Secretary, then the plaintiff is not entitled to recover.

Third. That if the jury shall find that the contract between Causten and Kalkman, (if any such shall be found by the jury to have been made) was made before said Kalkman's application for the benefit of the insolvent laws of Maryland; then the said Kalkman was by his release under the said laws, discharged from said contract, and the plaintiff is not entitled to recover, except subject to said release, and the provisions of said insolvent laws. Which directions, as prayed in the first and second prayers, the Court (ARCHER C. J. HANSON and KELL, A. J.) refused to give, but gave the direction prayed in the third prayer. The defendant excepted, and the verdict and judgment [**8]  being against him, he prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

K, whose vessel had been, with others, sunk in the harbor of B, in 1814, for its protection from the public enemy, in February, 1821, wrote to C, that "it would be a source of gratification to me, if your exertions are crowned with that success they so justly merit, and I rest assured, that you will interest yourself equally as much for the T's (the name of K's vessel) business, as that of the other vessels entrusted to your management. "C attended to the claim of the owners of the sunken vessels upon the government for indemnity; and on the 5th March, 1823, K enclosed him an order, (without date) on the Secretary of the Treasury, requesting him to pay C, out of the allowance for K's claim, which had been retained at the Treasury on K's account, a certain sum, being C's proportion of said retained money, as stipulated to be paid him for his services and expenses in collecting the proofs relating to the application of the said vessel to the public defence." It appeared that in 1817, K had been discharged from his contracts under the Insolvent Laws of Maryland, and in December, 1821, his trustee agreed to allow C a commission for prosecuting the claim of indemnity for K's vessel, in the event of his succeeding, provided the Court would permit the trustee so to do. The whole allowance was, however, retained by the government, and passed to the credit of K's bonds, for duties then unpaid. In an action by C against K, to recover compensation for his services aforesaid: HELD, there was evidence for the jury to find a contract between C and K, and they might as fairly infer that it was entered into a little anterior to the letter of 1821, as before the insolvency of 1817--and that if the plaintiff was to be paid out of the sum to be allowed on account of the vessels, yet if he had been deprived of it by the defendant's means, the defendant was personally liable--that the United States under the circumstances being authorized to retain the allowance in payment of the defendant's bonds, their claim being a just one, and the plaintiff having no lien on the fund in the Treasury, the defendant still remained liable.  

COUNSEL:
Mayer and Frick, for the appellant, contended,

1. That the contract, if any, was that the plaintiff should be compensated out of the fund which should be awarded to the ship Temperance, and that no part of said fund ever came to the hands, or was at the disposal, of the defendant, or of the trustee, and that defendant has fulfilled such contract by giving the order on the Secretary of the Treasury, dated 5th March, 1823.

2. That if the said compensation was not payable out of the funds above mentioned, then that no other contract has been proved, by which the said defendant was liable, at the institution of the suit; said suit having been brought on the 2d of July, 1825, and the contract, if any, for payment by Kalkman, having taken place in the year 1814. They referred to 3 Wilson, 207. 1 Chitty on Bills, 60, 63, 64. Montgomerie vs. Ivers. 17 Johns. Reps. 38. Wetter vs. Rucker, 5 Serg. & Low. 160. 1 Peters 193. Ib. 406, 439, 441, 442. Ib. 216. On the second point to Oliver vs. Gray, 1 Harr. & Gill, 204. Buller vs. Harrison, Cowp. 565.

Hoffman, for the appellee.

1. It does not appear [**9]  when Causten's services as an agent commenced, but it is shown that he was engaged in 1821, and that in 1822, the act of Congress, for the compensation of the defendant, was passed. Whether, therefore, he was to be paid out of the fund, or by the parties, it is clear he was not to be paid, until the law passed, and the amount was ascertained by the award of the Commissioners, as the amount of the compensation which the plaintiff was to receive, depended on the amount to be awarded to the defendant. This award was not made until 1823, and as the suit was brought in 1825, limitations cannot be a bar.

2. The question is not whether the order, which Kalkman gave to Causten, was, or was not, a negotiable bill of exchange. It was an order, and the law implies a contract on the part of the drawer, to pay the payee the money mentioned in it, provided it is not paid by the drawee. But it was a bill of exchange, as between the drawer and payee, although the negotiable words are omitted. Chitty on Bills, 85, 86, 140, 144. The bill was not payable on a contingency--it was drawn on a fixed and certain fund in the hands of the drawee, and was absolute in its terms. It is not material, however,  [**10]  what the instrument may be called. It created a responsibility on the part of the drawer to pay, if the fund on which it was drawn should prove inadequate. Montgomerie vs. Ivers. 17 Johns. Rep. 38. Chitty on Bills, 121.

The record contains abundant proof to support the judgment independent of the order. The letter written by the defendant in 1821, shows that the plaintiff was then engaged in his service, and it requests him still to continue his exertions--these exertions were successful, and the money which was the fruit of them, was applied to the satisfaction of Kalkman's debts, and the plaintiff therefore is entitled to recover on the count for money paid.  

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

OPINIONBY:
EARLE 

OPINION:

 [*363]  EARLE J. delivered the opinion of the Court.
Our reflections on this case, have led us to the conclusion that the Court below were right, in refusing to give the directions prayed in the first and second prayers of the defendant, who is the appellant here. (The Judge here stated the facts of the case.) This being the testimony in behalf of the plaintiff, it is not easy to conceive how the Court could have [**11]  given to the jury the directions asked in the first prayer--"that the plaintiff had adduced no evidence of any undertaking between him and the defendant, touching services for indemnification for the ship Temperance, by which the said Kalkman is liable to the said Causten, and that the plaintiff is not therefore entitled to recover." The 

 [*364]  evidence of the defendant's undertaking, looked them full in the face, and his liability under it seems without doubt. The time of the contract between the parties, is not ascertained, and was a proper subject for the jury, who might as fairly infer, that it was entered into a little anterior to the letter of the 7th of February, 1821, as that it bore date before the insolvency in 1817. And if the meaning of the prayer is, that the defendant's undertaking is barred by time, as was suggested by the counsel, the answer is, that the services were not performed until some time in the year 1822, and in March, 1823, the order on the Secretary acknowledges the justice of the plaintiff's demand, and that it was then a subsisting debt.
The Court's rejection of the instructions required in the second prayer, is also entitled to our decided [**12]  approbation. If, under the contract, the plaintiff's compensation for services rendered was to be paid out of the sum allowed by the government, it does not necessarily follow that it cannot be recovered of the defendant. The personal remedy is unquestionable, if the plaintiff has been deprived of his compensation out of the funds, by the defendant's means, the fund here has not, in truth, come to his hand, nor is it now at the disposal of himself, or his trustee, but it has been snatched from the plaintiff, and wholly applied by the United States, to the payment of a debt due to them by the defendant, the justice of which he does not pretend to deny. The moment of appropriation by the United States is not known; neither is it worth inquiring into. The plaintiff had no lien upon the fund, arising out of the order, even if it had been presented before the money was applied to the payment of the custom house dues. It is not a bill of exchange, nor is the transaction within the pale of the law merchant, and there was no greater obligation on the United States, to pay in parcels, the sum awarded to Kalkman, than rests upon every private debtor, who has to pay a sum of money [**13]  to a single individual creditor. If the United States had answered the order, it would have justified the payment 

 [*365]  to Causten, and this is the only valuable legal purpose it could have been made to answer. But it has been in argument contended, that the United States had no authority to apply this fund to the payment of the custom house demand, inasmuch as it had been previously disposed of by the insolvent laws of Maryland, and belonged to the trustee of Kalkman. If this be so, it affords a substantial reason why Kalkman's order should not have been paid to Causten by the Secretary of the Treasury. There is, however, nothing in the objection. Had this money been paid to the trustee, the United States would have been entitled to it, to satisfy the custom house bonds, the act of Congress of 1799, ch. 128, giving them a priority of payment, in the disposition of insolvents' estates. 1 Peters 438, 439, and the trustee would have had to perform the useless ceremony of receiving with one hand to pay with the other. Under whatever aspect this case can be considered, we think Baltimore County Court were correct, in refusing to instruct [**14]  the jury, as prayed for by the defendant, and their judgment is affirmed.
JUDGMENT AFFIRMED.  

14 of 34 DOCUMENTS 

STATE OF MARYLAND vs. LABAN WALSH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 406; 1830 Md. LEXIS 29 

June, 1830, Decided 

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

At March term, 1825, the State of Maryland recovered judgment in an action of Debt, against Laban Walsh, the appellee, who was a security in the bond of one of the collectors of the State tax, and in that character indebted to the State. On the 11th October, 1828, the appellee was reported to be entitled to his final discharge under the Insolvent Laws of the State, by the Commissioners of Insolvent debtors for the city and county of Baltimore, and on that day was accordingly discharged by Baltimore County Court. On the 23d March, 1829, the State sued out a writ of capias ad satisfaciendum on the aforesaid judgment, and the appellee was arrested, and brought before Baltimore County Court for commitment. He thereupon moved the Court for his discharge from the custody of the sheriff, on the ground that he had applied for the benefit of the Insolvent Laws of Maryland, and obtained a final discharge since the rendition of the judgment aforesaid. And Baltimore County Court [ARCHER, C. J.] accordingly discharged him. The State appealed to this Court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A final release under the insolvent laws of this State, obtained by a debtor to the State, after judgment rendered against him, will protect him from a ca. sa. on such judgment; and if arrested, the Court will discharge him on motion.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J. EARLE, and STEPHEN, A. J.  [**2]  

OPINION:

 [*407]  Taney, (Atty. Genl.) and Gill, for the State, contended, that the insolvent laws of Maryland do not apply to the State. The State is not a creditor within their meaning; and the rights of the State against the persons of her debtors, are not restrained by them. They said that the insolvent laws of Maryland did not bar the State in the prosecution and recovery of her debts. The act of 1805, ch. 110, was the basis of the system, and when first enacted was a mere private act, for the relief of the persons mentioned in it. One of its provisions (Sect. 3,) required the debtor at the time of presenting his petition, to produce to the Court which was to grant the discharge, "the assent in writing of so many of his creditors, as have due to them the amount of two-thirds of the debts due by him at the time of his application" for relief. Foreign creditors not residing within the United States, or not having agents therein authorized to act in their behalf, are not to be considered as creditors within the meaning of the act. The 2d section required the Court, to which the application might be made, to direct personal notice of the application [**3]  to be given to the creditors, or their agents, or public notice to be given where the debtor resides, and on the appearance of the creditor, or neglect to appear at the times and place appointed, the Court is to proceed with the consideration of the case. By the 9th section, creditors were authorized 

 [*408]  to file allegations of fraud against the insolvent to vacate his discharge.
When the Legislature was making these various provisions requiring assent of creditors, and notice to creditors to be given, and authorizing creditors to proceed against a fraudulent insolvent, it could not have escaped their attention, that no officer was empowered to act for the public--none entrusted to give the required assent to confer jurisdiction on the discharging court; none indicated to whom notice might be given, nor whose duty it was to take notice of the advertisement. Under these omissions in material and important particulars, essential to preserve the integrity of the system, to confer jurisdiction on the Court, and guard the rights of creditors, and consequently directly affecting the debts of the public, and leaving the State, in her character of creditor, entirely unrepresented,  [**4]  it is insisted that she is not a creditor within the spirit and meaning of the original system, and was not intended to be barred by it. There is no power short of the Legislature which can release a public debt; and when that authority, acting in the ordinary course of legislation, passes a law releasing debts generally, without any particular mention of the State, a question arises upon a fair construction of the whole law, whether the State's debts were intended to be released. If as many reasons tending to form an exception in favor of an individual could be found, it would be contended that a discharge under this system, would be no discharge of the claim of such individual.
It is true that the authority to discharge, conferred upon the Court, is in its term broad enough to include the State's debt. The Court has power to order that the debtor shall be discharged, "as well from all debts, covenants, contracts, promises and agreements due from, or owing, or contracted in his individual, as also in a co-partnership capacity, by him," before the time of his application, "provided that no person who has been guilty of a breach of the law, and hath been fined, or is liable [**5]  to be fined for such breach, shall be 

 [*409]  discharged from the payment of any fine incurred for any breach of the laws of this State," but the question still remains what creditors shall lose their rights, what debts are to be barred? Answer, all debts due to persons who have a capacity and right to act under, and be affected by the conditions and principles upon which the discharge is to be obtained. The conditions and principles upon which the discharge is obtained, constitute the consideration upon which it is granted--the inquiry is therefore always open, as to what class of creditors is not affected by it. No argument can be drawn from the proviso, which is not an exception, nor in the nature of an exception; if the proviso had not been introduced into the act, a discharge from debts and covenants would not have released judgments for fines and breaches of the criminal code. It must therefore be considered as introduced ex abundante cautela.
It is true that the act of 1805, has, since its passage, been converted into a general system, by a legislative declaration that all insolvents may avail themselves of it, yet that does not change its construction in relation [**6]  to creditors. They contended that a "law is the best expositor of itself--that every part of an act is to be taken into view for the purpose of discovering the legislative mind, and that the details of one part may contain regulations restricting the extent of general expressions used in another part of the same act;" that this was an undisputed rule in the construction and application of statutes, and one which applied directly to the act in question, when set up as a bar to a demand of the State. That the details of the insolvent debtors' act restrain its general expressions, and confine its application to those creditors only who could comply with its provisions.
It is contended, moreover, that the State has a preference over all claims, except liens, upon the insolvent debtors' estate. If she is to be considered as embraced within the term creditor, instead of a priority she would have to come in with other creditors for a distributive share. This would 

 [*410]  produce a loss to the public not contemplated by the legislature.
They cited acts of 1805, ch. 110, sec. 2. 1807, ch. 150, sec. 4. 1812, ch. 77, sec. 2, 5. Cox Dig. 638.  Pennington vs. Coxe, 2 Cranch 33, 52. [**7]  State vs. Stump and Gilpin, 2 H. & McH. 174. Murray vs. Ridley, admr. 3 H. & McH. 171. Wood vs. Repold, 3 H. & J. 125. State vs. Rogers and wife, 2 H. & McH. 198. Contee vs. Chews, ex'tr. 1 H. & J. 417. Kip vs. Bank New York, 10 Johns. 63. Kennedy vs. Strong, 10 Johns. 289. Act of 1792, ch. 51.
No counsel appeared for the appellee.
JUDGMENT AFFIRMED.  

15 of 34 DOCUMENTS 

THE CHESAPEAKE INSURANCE COMPANY vs. ALLEGRE'S ADM'RS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 164; 1830 Md. LEXIS 5 

June, 1830, Decided 

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

This was an action of Covenant on a policy of insurance brought by the appellees' intestate against the appellants. The declaration stated, that the policy was made on the 22d of April, 1820, between the then plaintiff and the defendants, whereby the plaintiff, as well for himself as for and on account of all and every other person or persons to whom the said did or might appertain, in part or in whole, did make insurance, lost or not lost, at and from Rio de la Plata to Havana, with liberty of touching at Martinique, $ 5000 upon the body, tackle, &c. of the brig called the Eugene, whereof was master for that voyage, Chalumeau, &c. Beginning the adventure upon the said vessel, &c. at and from Rio de la Plata, and so should continue and endure until the said vessel be arrived at the said ports of Martinique and Havana, &c. The declaration, in the usual form, proceeded to state the nature of the policy, and averred that at the time of making the policy, Charles A. Chalumeau was the owner of the said brig, and that the insurance was made by the plaintiff, in trust for the use and benefit of the said Chalumeau. That on the 1st of July, 1820, the [**2]  said brig, being tight, staunch and strong, sailed from Rio de la Plata, on her intended voyage towards Martinique and Havana, and whilst so proceeding, on the 15th of July, in year aforesaid, on the high seas, the said brig was, by the perils and dangers of the seas, and by stormy and tempestuous weather, and the violence of the winds and waves, bulged, broken, damaged, &c. and the said brig thereby wholly lost to the said Chalumeau, &c. The death of the plaintiff was suggested, and his administrators, (the appellees) were made plaintiffs. The defendants pleaded non infregit conventionem, and issue was joined.

1. The plaintiff at the trial gave in evidence the policy of insurance upon which this action was brought, dated the 22d of April, 1820, whereby the defendants insured the plaintiff's intestate for the concerned, at and from Rio de la Plata to Havana, with liberty of touching at Martinique, $ 5000 upon the body, tackle, &c. of the brig called the Eugene, whereof was master for the voyage     Chalumeau, or whoever else should go master, &c. Beginning the adventure upon the said vessel, tackle, &c. at and from Rio de la Plata, and so should continue and endure until the [**3]  said vessel be arrived at the ports aforesaid. The policy then proceeded in the form of that used in the case of the same plaintiffs against the Maryland Insurance Company, omitting the clause respecting the survey of the vessel. By a memorandum signed by the president, on the 8th of June, 1820, the defendants stated that they would consider the above insurance as made at and from Monte Video to Havana. The plaintiffs also gave in evidence, that at the time the said policy was effected, the vessel was in every respect seaworthy, and arrived in the river La Plata at Monte Video, and there commenced loading on board her a cargo of mules and jackasses on the 5th of June, 1820, and having taken the same on board, sailed from the river La Plata on the 12th of July, of that year, for Havana; and during the progress of the voyage, by storms and tempests, the said vessel was compelled by necessity to put into Rio de Janeiro, where the vessel was regularly surveyed and ascertained to be totally unworthy of repairs, and condemned and sold; and the assured, in due time, duly made an abandonment of the vessel insured in due form to the defendants. The plaintiffs further gave in evidence, that [**4]  the said vessel was an American vessel, and belonged to Charles A. Chalumeau, for whose account the insurance was made; and they read in evidence, by consent, the protest made and sworn to by the master, mate and two of the seamen of the brig Eugene, before the vice consul of the United States of America, for the port of Rio de Janeiro, on the 19th of August, 1820, detailing minutely all the particulars of the shipment of the cargo on board the vessel--her sailing on the voyage, and the loss sustained. The master at the same time requiring a regular survey to be made of the vessel, &c. The plaintiffs also read in evidence sundry depositions of witnesses, taken and returned under a commission issued for that purpose from Baltimore County Court, to certain persons, named as commissioners, at Rio de Janeiro. As the questions decided by the Court below, do not appear to depend upon this testimony, it is omitted. The plaintiffs also gave in evidence, that at the time of, and long before, and since this policy was effected, mules and jackasses were an ordinary article of merchandize, and were shipped in various directions as merchandize from the river La Plata. They further gave in evidence,  [**5]  by Henry Armstrong and James Bosley, the same witnesses who proved the foregoing facts, that to their knowledge, mules are an ordinary article of exportation from Rio de la Plata to Martinique, Santa Cruz, and other Windward Islands; but that they did not, within their own knowledge, know of mules being carried to Havana from the river La Plata--never having been at Havana. And also proved by the said witnesses, that they never knew of any other cargo being carried from the river La Plata to the West Indies, than jerked beef or mules.

The defendants then read in evidence, by consent of the plaintiffs, the following order for insurance, upon which the policy above mentioned was made: "Baltimore, April 22d, 1820. Gentlemen--Insurance is wanted for account of the concerned, at and from Rio de la Plata to Havana, with liberty of touching at Martinico, on the brig Eugene, Chalumeau, master, valued at $ 5000. Said brig left the Capes, bound out, on the 12th of January last. It is therefore presumed that she will sail from Rio de la Plata in the course of the next month. What will be the premium? J. B. A. Allegre." "5 per cent." "Agreed, J. B. A. Allegre."

They also offered to read [**6]  the following paper: "Baltimore, August 15th, 1820. Gentlemen--By a letter from captain Chalumeau, of the brig Eugene, it is mentioned that she will sail on or about the 5th June, direct for Havana. I make you this declaration in order of altering the policy of insurance effected at your office in regard to the time of the sailing of the above vessel. J. B. A. Allegre." "Agreed." It was admitted that the last mentioned paper was carried to the office of the defendants about the time it bears date, by the said Allegre, in whose handwriting it was admitted to be. That it was submitted to the board, and agreed to by them, and the word "agreed," entered thereon in his presence. To the admissibility of which paper in evidence the plaintiffs objected, and prayed the opinion of the Court, that the said paper was not legal and proper evidence. But the Court, (HANSON, A. J.) was of opinion that the said paper was admissible, and permitted it to be read to the jury, for the purpose of showing whether the said Allegre made the statement in the order of insurance as to the sailing of the said vessel, concerning his actual knowledge as to the time of said sailing, but not for the purpose of showing [**7]  a change of the original contract between the parties. The plaintiff excepted.

2. The plaintiffs and defendants then offered in evidence that which is stated to have been offered by them in the third bill of exceptions, taken in the before mentioned case of the same plaintiffs against the Maryland Insurance Company; (see ante 140) and the plaintiffs made the same prayers to the Court, and their direction to the jury, in this case, as they made in the above mentioned case. Which directions, and each of them, the Court refused to give. The plaintiffs excepted.

3. The defendants then prayed the Court to direct the jury, that if they find from the evidence, that according to the usage and mercantile understanding among underwriters and insurance companies in Baltimore, where both plaintiffs and defendants resided, a general order for insurance on a vessel is not considered as comprehending a vessel employed in transporting live stock or animals, and that a larger premium is always required by insurers, when an insurance is effected on a vessel that is intended to be employed in transporting a cargo of live stock or animals, than an ordinary cargo of dead merchandize, then the [**8]  plaintiffs are not entitled to recover in this cause, as the order for the insurance, on which the policy is founded, does not comprehend, according to the mercantile usage and understanding of the same, a vessel employed in transporting a cargo of mules and jackasses. Which direction the Court refused to give; but delivered the same opinion and instructions to the jury, as were given by the Court on the prayers of the plaintiffs in the third bill of exceptions taken in the case preceding, (ante 136) of the same plaintiffs against the Maryland Insurance Company. The defendants excepted.

4. The defendants then prayed the Court to direct the jury, that if they find from the evidence given, that a larger premium would have been required by the defendants for an insurance of a vessel to be employed in transporting a cargo of mules and jackasses on the voyage insured, than was stipulated to be paid by the policy in this case, then the risk is materially increased, and the plaintiffs are not entitled to recover. Which direction the Court refused to give. The defendants excepted; and the verdict and judgment being against them, they appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT AFFIRMED.  [**9]  

HEADNOTES:

Where actions upon two policies of insurance for the same voyage, one upon the cargo, the other upon the vessel, were tried before the same jury at one time, proof that the word cargo, in the one policy, did not, according to the mercantile interpretation and usage of the place where the policies were effected, cover a shipment of mules, is not evidence that the other policy on the vessel is a nullity. A perilous cargo to the insurer does not necessarily, increase the perils of the ship owner.

It is true, as a general rule, that in an order for insurance upon a vessel, it is not necessary to state the nature or condition of the cargo designed to be transported. If the underwriters desire information upon that subject, it is for them to ask it.

In such case, the underwriter is presumed to be acquainted with the ship-owner's rights. In the absence, therefore, of fraud, or evidence to vary the general rule, the payment of a loss under the policy, cannot be resisted upon the ground that a larger premium would have been required for the insurance of a vessel employed in transporting mules, than was stipulated to be paid under a contract which did not mention the nature of the cargo. 

COUNSEL:
Meredith, for the appellants, (the defendants below) contended, that the prayers of the defendants in the third and fourth bills of exceptions, ought to have been granted. This question is to be treated as a question of concealment. It was the duty of the assured to disclose, that the vessel was to be engaged in the transportation of live stock. Park on Ins. 287. Carter vs. Boehm, 3 Burr. 1905. The inquiry is, would the fact concealed, effect the premium? If it would, the concealment destroys the policy. Harrison's Index, 738. 1 Marshall, 471. 1 Dow, 324. The premium would have been increased, if it had been known that mules and jackasses were to constitute the cargo. Nothing could excuse the assured, but evidence of the usage of trade, and in this case there is no such evidence.

Taney, (Attorney General) and Mayer, for the appellees.

No attempt was ever before made, to compel the assured to make known the nature of the cargo which was to go in his ship. If he is bound in any case, he is bound in all cases, and this cannot be contended. It is the peculiar province of ships to carry cargo, and when their owners ask for insurance, it is understood they are to enjoy this [**10]  privilege. They referred to Philips on Insurance, 92. 2 Wash. Cir. Court Rep. 255.

Wirt, for the appellant, in reply.

The object of the prayer in the fourth exception, was to get an instruction to the jury, that any circumstances which would increase the premium, are material, and must be disclosed. A party is bound to disclose the nature of the cargo when it exposes the ship to peculiar peril. In this case the voyage was direct from Monte Video to Havana; there was no intermediate port. It has been asked how the assured could know that the cargo was to be a live one. He could not but know that such a cargo might be shipped. That it is necessary to state the service in which the ship is to be employed, and the concealment will destroy the policy; he referred to Marshall, 471, 467, (note.) Harrison's Index. 738. 1 Doug. 97.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*171]  DORSEY, J., delivered the opinion of the Court.
With the questions decided by the Court below, on the appellees bills of exception, this Court have no concern. Their duty is confined to an examination of the points determined against the appellants, and [**11]  for the revision of which their exceptions were taken. It is apparent from the records, that the two cases of Allegre's Administrators vs. The Maryland Insurance Company, 2 G. & J. 136) and The Chesapeake Insurance Company vs. Allegre's Administrators, were both tried in the County Court at the same time, and before the same jury. Without adverting to this circumstance, it would be difficult to account for the introduction of much of the evidence embraced in the bills of exceptions; in the latter case, it being wholly irrelevant to the issue for trial before the jury. The instructions, therefore, which were prayed for by the appellants, must be predicated only on that portion of the testimony which is applicable to the issue in this cause. The proof, then, of mercantile interpretation, or universal understanding amongst insurance companies and underwriters in the city of Baltimore, that the order for insurance of the cargo of the Eugene, or goods and merchandize on board of her, would not cover mules or live stock, is not evidence to prove that the policy on the brig is a nullity, because the underwriters were not apprised that she was to be employed in [**12]  the transportation of mules. A perilous cargo to the insurer, does not necessarily increase the perils of the ship owner. No testimony had been adduced to show, that in the city of Baltimore, the order now in question would not sustain a policy in the mule trade. The Court, therefore, were right in refusing to instruct the jury, (as required by the appellants in their first bill of exceptions) "that if they find, from the evidence, that according to the usage and mercantile understanding among underwriters 

 [*172]  and insurance companies in Baltimore, where both plaintiffs and defendants resided, a general order for insurance on a vessel, is not considered as comprehending a vessel employed in transporting live stock, or animals," &c. that the plaintiffs were not entitled to recover. To have granted such an instruction, would have been to have authorized the jury to find a fact, of which no testimony legally sufficient to warrant such a finding, had been submitted to their consideration. The refusal of the Court below being sustained, and their opinion conceding to the appellants more than they had a right to demand, the first exception furnishes no ground for reversing [**13]  the judgment.
In rejecting the application of the appellants, as stated in their second bill of exceptions, the County Court were also right. As a general rule, it is true that it is not the duty of him who seeks insurance on his vessel, to state to the underwriters the nature or condition of the cargo which he designs to transport. If they desire information on the subject, it is for them to ask it. It would be carrying the doctrine of concealment far beyond its present limits, if, in a case like the present, where granting the instruction assumes as facts established before the jury, (the plaintiffs below having offered evidence to that effect) "that a cargo of mules does not increase the risk of the vessel;" that mules are the known and only article of trade between La Plata and Havana, except jerked beef, the Court should determine, that, if knowing that a cargo of mules were to be laden on board the brig, the insurers would have demanded a higher premium, then the policy is void; although it might be, that the premium received were double that which would have been required on an insurance on beef, and was an averaged premium, upon a fair calculation, of the probabilities [**14]  of the nature of the cargo, derived from a knowledge of the trade, with which the underwriters are presumed to be acquainted. No imputation of fraud has been cast upon the assured, or him whose interests he represented. The instruction sought, is not predicated on that basis.
JUDGMENT AFFIRMED.  

16 of 34 DOCUMENTS 

JOHN DAVIS, et al. vs. JOHN H. BARNEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 382; 1830 Md. LEXIS 27 

June, 1830, Decided 

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

This was an action upon the case, brought upon the 26th of January, 1826, by the appellants, John Davis and others, constituting the firm of David Barnum & Co. against John H. Barney, the appellee. The declaration contained three counts.

The first averred that whereas the said defendant, before and at the time of making the agreement and undertaking hereinafter next mentioned, was the owner and proprietor of certain teams and coaches, for the carriage and conveyance of passengers from Baltimore city, in the county aforesaid, to Washington and Georgetown, in the District of Columbia, and also from Washington and Georgetown aforesaid, to the said city of Baltimore; and being owner and proprietor, as aforesaid, the said defendant, on the 30th September, 1825, at, &c. in consideration that the said plaintiffs had paid to him the sum of $ 9000, as a full compensation for his four teams, (say sixteen horses) and two coaches, then running on the road between Baltimore city and Washington aforesaid, did promise and undertake, to withdraw all his pretensions to any part of the said road, and not to be concerned, direct or indirect, in any line [**2]  of stages in opposition to those then owned and employed by the said plaintiffs; yet the said defendant, not regarding his said promise and undertaking, but intending to deceive and defraud the said plaintiffs in this behalf, did, afterwards, to wit, on, &c. at, &c. became sole owner of a line of stages, which were for a long space of time, to wit, &c. used and employed by the said defendant, on the said road, between the said city of B. and W. and G, to wit. &c. in the carriage and conveyance of passengers, in opposition to the line of stages then and there owned by the said plaintiffs, and employed and used by them on the said road as aforesaid.

2d Count.--And whereas also, heretofore, to wit, &c. at, &c. in consideration that the said plaintiffs had paid to the said defendant, the sum of $ 9000, as a full compensation for his four teams, (say sixteen horses) and two coaches, then running on the W. and B. road, he, the said defendant, did then and there promise and undertake, to withdraw all his pretension to any part of the said road, and not to be concerned, direct or indirect, in any line of stages in opposition to them, the said plaintiffs. Yet the said defendant, not regarding [**3]  his said last mentioned promise and undertaking, but contriving, &c. did afterwards, to wit, on, &c. at, &c. become part owner of a line of stages, which were, for a long space of time, to wit, &c. used and employed by the said defendant, on the said road, in the carriage and conveyance of passengers, in opposition to the line of stages owned by the plaintiffs and employed and used by them on the said road.

3d Count.--And whereas also, heretofore, to wit, on, &c. at, &c. in consideration that the said plaintiffs had paid to the said defendants, the sum of $ 9000, the said defendant then and there promised and undertook to withdraw all his pretensions to any part of the said road, and to deliver to the said plaintiff four teams and two coaches, as they then were upon the said road from B. to W., and did further promise and undertake, not to be concerned, direct or indirect, in any line of stages in opposition to the said plaintiffs. Yet the said defendants, not regarding, &c. but contriving, &c. did afterwards, to wit, on, &c. at, &c. become concerned, indirectly, in establishing and carrying on a line of stages, which were for a long space of time, to wit, &c. used and employed [**4]  on the said road, in the carriage and transportation of passengers, in opposition to the line of stages owned by the said plaintiffs, and used and employed by them on the said road as aforesaid, during the time of such opposition as aforesaid, to the damage, &c.

The defendant pleaded non assumpsit, and issued was joined.

1st Exception.--At the trial of this case, the plaintiffs, to support the issue on their part, proved that they and the said defendant, being joint owners of a line of stages on the Washington and Baltimore road, after various negotiations, entered into the following contract.

"Dear sir,--In answer to your request, I hereby agree to take for my four teams, (say sixteen horses) and two coaches, now running on the Washington road, $ 9,000, and will withdraw all pretensions whatever of my interest on the said road--the payments must be cash, or such paper that will command cash. On this being complied with, I will give, from under my hand, not to have any interest in the staging on the said road. I still hold one-sixth of a share in the Steam Boat Company, on the Potomac river, as a set against any claim that has or may hereafter come against me as a proprietor [**5]  of the said company. This must be taken as my ultimatum. I am, dear sir, your obedient servant, John H. Barney. David Barnum, Esq."

"Baltimore, 30th September, 1825. I hereby acknowledge to have received of Messrs. David Barnum & Co. stage proprietors on the Washington and Baltimore road, $ 9,000, as a full compensation for the within named four teams and two coaches; and I bind myself to withdraw all my pretensions to any part of the said road, and I herewith deliver to the said company, the teams as they are at this instant, on the road between this place and Washington, and further pledge myself not to be concerned, direct or indirect, in any line of stages in opposition to them. John H. Barney."

And the plaintiffs further offered in evidence, that after such contract was entered into, and before the institution of this suit, that is to say, on the 30th of October, 1825, a line of stages, in opposition to that of the plaintiffs, was set up, and was carried on until the 1st of September, 1827, upon the said road; and that the stages and horses used on said road, stabled at, and started from the stables of the defendant, and that the drivers of such opposition line of stages,  [**6]  boarded at the house of the defendant, and that every thing was carried on precisely in the same manner, after such opposition line was established and carried on, as before the sale and contract before referred to, in this exception, except that Mr. Thompson had the management instead of B. He also proved that three stages belonging to the defendant, when witness drove for Mr. B., previous to said contract; four horses and three sets of gears also belonging to the defendant, when witness drove for him previous to said contract, were used upon this opposition line; and also proved that B. the defendant, at the time one of the witnesses came to drive on this opposition line, was indebted to said witness, and told said Stephen J. Thompson, to pay said witness, provided he came and drove for him, Thompson--and also proved that B. said to a witness when speaking of this line, we want drivers--that such words induced witness to ask the defendant if he was concerned, to which he replied no--they also proved that B. neither kept a boarding house nor livery stables--and that before the contract before mentioned, the defendant, B. ran a team of horses on the Philadelphia road, from Baltimore,  [**7]  in a line of stages on that road, and that he retained his interest in said Philadelphia road, till the fall of 1826, when it was placed in the name of Stephen J. T; and also proved that the same horses which run on the Washington and Baltimore road, in the line of stages in opposition to said plaintiffs, were used to run on the Philadelphia road, and in that part of the line belonging to B. which was the first ten miles from Baltimore; and that the said Stephen J. T., was the son-in-law of B. and resided during all this time aforesaid, and for many years before, with said B., and that in the year 1822, the said Stephen J. T., applied for the benefit of the insolvent laws, and in March term, 1823, obtained his final release; since when, until this opposition line was started, he was not engaged in any kind of business, nor has he since been engaged in any other business than as the agent of this line, and as agent for his brother; and the plaintiffs further gave in evidence that the stables which were so rented by the defendant, to the said Thompson, for the use of the said opposition line, were situated in the rear of the defendant's dwelling house, and that the stages of the said [**8]  line daily passed his door, and that the defendant went to the stage office three or four times in two years, and when there, enquired of the agent of said Thompson how they were coming on: and that the stages and horses sold and delivered by the defendant to the plaintiff, independent of their part of the line, were worth not more than $ 2000: and that whilst the defendant was the avowed owner of a line of stages, he did not come to see the horses once in nine or ten months, trusting to the drivers. The plaintiffs also offered in evidence, that John V. Thompson, the brother of Stephen J. T., above mentioned, is, and has been for many years, a resident of the city of Baltimore, and that he followed the trade of a journeyman saddler for several years, but quitted it about seven years ago, because he was short-sighted: the witness said he had no means of knowing the situation of said Thompson; that he never had occasion to enquire into his circumstances, and he might have had money without witness knowing any thing about it: witness never considered John V. Thompson as a man who would be in credit for a large sum of money; he might have had thousands without his knowing it. Whereupon [**9]  the defendant, to support the issue on his part, offered in evidence to the jury, by Stephen J. T., that he, the witness, was present when sale was completed, as mentioned in the said contract; that defendant observed that he had not received as much as his property was worth; that if they, the plaintiffs, would permit him still to hold an interest for the residue of the mail contract, which had two years and three months to run, and discharge him from his contract, he would return the money received, which was then in his, defendant's hand, and give them up their note for the balance, and $ 1000. He then offered to sell to the said plaintiffs, the remainder of his property, consisting of stages, horses and gears. He also offered to rent to the plaintiffs, his stables, one of whom expressed his regret that the stables were not situated nearer him, all which they refused. Witness commenced to run a line of stages from Baltimore to Washington about the 30th October, 1825, and purchased of defendant the stages, horses and gears, so offered by him to the plaintiffs, and refused to be taken by them; and also, after sale to the plaintiffs by the defendant, he, Thompson, purchased out his,  [**10]  defendant's, team on the Philadelphia route, with his interest in the contract on that route upon the last mentioned purchase. Defendant and witness went to McDonald, to whom defendant stated that he had sold out on the Philadelphia road to witness, who in future would hold the interest in the said line called the Union line, McDonald being one of the owners of said line. Witness stated that his brother John had enabled him to purchase out the defendant in the first instance, and establish his line of stages to Washington; and that his brother William was subsequently interested, and furnished the means--he appeared as agent. That the present defendant never was interested therein, either in establishing said line, or continuing it, and had no concern with the line after witness bought out the defendant; he had two horses remaining, which he kept for his own use through the summer. Witness applied to him to let him have them during the winter; this application was in the fall, and witness agreed to winter them without any charge for their keeping, as defendant had no use for them in the winter; nothing was said of the kind of use witness should apply them to. Witness had, at the time,  [**11]  a small carryall and a gig; and drove them sometimes in one, and sometimes in the other: also, in the course of the winter, drove them in the stage on the Washington road; this without any express consent of the defendant, who, witness presumes, knew they were so driven, but does not know whether or not--does not know how long driven in the stage, or when first put in; they might have been driven one-third, or one-half the time in the stage; the horses and stages which witness had on the two routes, cost at different times, a little less than $ 5000. John V. Thompson, was the sole owner until some time about August, 1826, then sold out to William D. Thompson. John V. Thompson was at the office every day whilst interested; his health did not permit him to do much, but the business was considered under his eye; books kept in witness' name as agent; never received one dollar of defendant; he did not pay defendant for stages and horses purchased; the price was agreed on, and was to be paid when convenient to the witness, he paying interest therefor; the amount not yet paid. Witness considered himself, as agent, and his brother also, responsible to defendant for the property so purchased [**12]  as before mentioned, and for which he had agreed to give $ 1050, but he did not consider himself as individually responsible; the amount to be paid when convenient, but to bear interest; which interest was, at different periods, paid to defendant, as well as rent and board; believes interest to have been rather overpaid; no note was given for the amount of purchase; begun to pay to defendant on account of interest, &c. within six months after contract. Witness had sometimes had two or three, sometimes five or six drivers and porters boarding with the defendant; the defendant sold out the Annapolis line to Mitchell, shortly after his contract with the plaintiffs; when defendant owned stages, one seldom went out without his examining it particularly; since he sold out, have not seen him three times in the stable yard; never once saw him in the stable. Witness, before contract between defendant and plaintiff, told Smith, one of the company, and one of the plaintiffs, whose death is suggested, that he, witness, meant to establish a line of stages between Washington and Baltimore; that he repeated the same thing to Smith, on different occasions, and told him if plaintiffs completed their [**13]  contract with defendant, he would not prevent his going on. Upon being asked whether he informed plaintiffs at the time of contract, says he did not at that time; that he had previously done so to Smith, and did not think it necessary or proper to repeat it; he presumed them all acquainted with the fact, and did not think it to his interest, or proper for him to interfere with defendant's contract. Witness mentioned to the defendant, some time before he sold out, that if the plaintiffs run him off the route, and he would permit him to become interested, he would join him. Witness subsequently took the entire possession of a small house belonging to defendant, and near his dwelling; that when he did so he took his drivers to board, and then by agreement with defendant, the sum to be paid him annually for rent of house, stables, shed, and interest, was $ 1000, being reduced to that sum from $ 1600. Witness received a bill of the purchase, and gave no note therefor; agreed to give for the rent of stable, board and interest, $ 1600 per annum. John V. Thompson advanced to witness, on account of the line, $ 4825; this amount placed with witness in September and October, 1825, as occasion [**14]  required. Witness' brother John kept no bank book, that he knows of, nor did he know of his selling any stock, and paid him the $ 4825 in cash, and not in any instance by a check. Witness agreed to give defendant for the residue of his stages, horses and gears, $ 1050. Witness also purchased for cash, one stage in Philadelphia; never made any dividend; believes there was no profit made; as money was received, it was applied to bearing expenses and buying fresh horses, &c. Witness' brother John sold out to his brother William; no statement was then exhibited. Witness was to have the benefit derived from the stages. Witness rented of B. his stables, which were very large and spacious, and had been built by defendant many years before, for his own accommodation and use, at a heavy expense, when largely interested in stages; and also boarded with him, as he did his drivers, and was to give for the use of the stables, boarding of himself, drivers, infant child and servant, and the interest on the $ 1050 above mentioned, $ 1600: and said B. had convenient accommodations for boarding drivers; stables and kitchen were in the same yard. The two horses hired from Mr. B. being at the expense [**15]  of wintering them, were returned to him the March following, on demand by him. Said Thompson had become an insolvent debtor in 1822, and when he established the line of stages as aforesaid, he thought it prudent to conceal his interest in the said line, (having before taken counsel) lest he might be embarrassed by his creditors, one of whom was the United States. The defendant further offered in evidence by one Grant, that he, Grant, had lived with defendant for fifteen or twenty years before he sold out to the plaintiffs; that when he sold out, he dismissed witness, who remained out of employment from four to six weeks, except in going at the request of one of the owners of the Annapolis line, three times a week during part of that time, to attend the Annapolis stage. When Thompson commenced, he employed witness; he has since acted as Thompson's clerk, and settled with him weekly, or oftener, and paid over proceeds to him; never has known defendant in this matter since he sold out, and never knew or understood that he was concerned; never told McKean, or other person, that he, defendant, was concerned formerly, and before defendant sold out to the plaintiffs, he kept tavern, and Thompson [**16]  lived with him, but never interfered with the business of staging; and since he sold out he has interfered and paid particular attention thereto; on the other hand, since the stages have been conducted by Thompson, the defendant has never interfered with the business, nor has this witness ever accounted to him, or paid over any thing to him, not considering him as having any thing to do therewith, but on the contrary, considering Thompson as the person interested therein, and his employer, and who employed him as his clerk, he, Thompson, acting as agent of his brother. The witness states that when the defendant was the owner, he was very particular, and constantly examined the stages, &c. before they went out; he has never done so since. Witness, Thompson, upon being asked what he meant by using the term interest, when speaking of his not disclosing his intention to establish stages when the contract was signed, says he has no recollection of using the word; he was not intimate with any of the gentlemen, except Smith, and not upon intimate terms with him, and it would therefore be improper; that he did not mean to convey the idea that he had any interest in concealing his intention;  [**17]  he could not have so meant, because he had that very morning, on his return from Washington, so informed the said Smith. And the said defendant further proved by Stephen J. Thompson, that the following bill was rendered to him, said Thompson, by defendant: Mr. S. J. Thompson to John H. Barney.

"March 17, 1827, cash paid Wm. C. Gent, for hay, $ 88 50; April 30, rent of stables, interest and board to this day, $ 800; July 31, rent of dwelling, stables, &c. &c. three months, ending this day, $ 250; Oct. 31, rent as above, $ 250--$ 1388 50."

1827, January 15 to 1st May, by various items of cash, $ 537 66: 12th May, 1827, to 17th November, by various items of cash, $ 665 55.

Due J. H. B. $ 185 29."

And then proved, that William C. Gent, mentioned in the first item of the last account referred to, was largely indebted to the Levy Court, and Mr. B. was treasurer of that court: that the said Gent paid at different times to said B. whose duty it was, as treasurer, to settle with him, various sums of money, who opened the account against said Gent, and recently closed it, by delivering Gent's note to the clerk of the now commissioners of the county, for the balance: and upon [**18]  the cross examination by the plaintiffs counsel, of Stephen J. Thompson, he was required to produce all the quarterly settlements with defendant: he went to his office and returned, and produced the accounts offered in evidence by the defendant, and stated that he had looked for the other accounts: that the one now produced, was the only one he had been able to get--the others were at his house. Whereupon the plaintiffs counsel asked him whether the other accounts were headed in the same manner, to which the witness answered that he believed that was the only account so headed; that the others, he believed, were all headed J. Thompson, agent.

The defendant further offered evidence by Stephen J. Thompson, that the settlement made with the parties interested in the Union line to Philadelphia, for the winter of 1825 and 1826, was made at Elkton, between the parties concerned in said stages: that Samuel McDonald was not then and there present, and that such settlement was so made, with a recognition of said Thompson's interest, as agent, as aforesaid, and not as recognizing in Mr. B. an interest in any part of the said line from Baltimore to Philadelphia: that said Thompson assisted [**19]  at said settlement, and said B. did not so assist. The defendant also proved, that William Thompson, brother of Stephen J. Thompson, is a rich man, and is doing an active business in the West Indies, but is now in the United States: and the defendant proved by George Beltzhoover, that while there was no opposition, he, as agent, bought of the plaintiffs half a stage and four horses, one in ill health and at the purchaser's risk, and which died before he received him, for the sum of $ 2,000, which purchase gave him an interest in the line, and with a view to get them to stop at his tavern house. After the defendant closed his case, the plaintiffs called a witness, who proved that being written for by Grant, one of the witnesses of the defendant before mentioned, to come and drive for Thompson, he called upon said Grant, and told him he would not drive for Thompson. Grant then told him, you know what sort of a gentleman B. is; Thompson and I are only agents for defendant; that witness then replied he knew what sort of a man B. was, and if that were the case, he, the witness, would rather drive for B. than any other of the owners, but he doubted whether he would employ him, as witness [**20]  had sued B. And also proved by said witness, that the defendant told Thompson to settle with witness, if he would drive for him, Thompson. Whereupon the plaintiffs, by their counsel, prayed the Court to direct the jury,

First. If the jury shall find from the evidence, that a line of stages from Baltimore to Washington, was established about the month of October, 1825, in opposition to the line of stages on the said road, then owned by the said plaintiffs, and that the said line of stages, so established in opposition as aforesaid, continued to run in opposition to the aforesaid line of the plaintiffs until the institution of this suit: and if the jury shall also find that the defendant in this cause furnished the owners of the said opposition line with credit, money, horses, or any other means, in order the better to enable the owner or owners of the said opposition line to establish it and carry it on, and by reason of which means, so furnished, the said owners were the better enabled to establish it and carry it on, that then the plaintiffs are entitled to recover, notwithstanding the defendant may not own any of the horses, carriages, or other property employed in said opposition [**21]  line.

Second. That by the contract on which this suit is brought, the defendant was bound not to assist in carrying on any line of stages, in opposition to the plaintiffs, on the road from Baltimore to Washington; and if the jury find the evidence that he did render assistance of any kind to the owners of a line of stages established on the said road in opposition to that of the plaintiffs, and that such assistance was rendered by him for the purpose of enabling the owners of the said opposition line the better to establish and carry it on; that the rendering of such assistance for such purpose, was a breach of the aforesaid contract, although the defendant may not have owned the aforesaid opposition line, or any part or portion thereof, or of the horses and stages employed thereon. Which directions the Court (ARCHER, Ch. J., HANSON and KELL, A. J.) refused to give, but directed the jury that there was no evidence in this cause to show that the defendant had furnished the opposition line with credit, money, horses, or other means, in order the better to enable the opposition line to carry it on, but that the horses and other means were sold by the defendant to said opposition [**22]  line, if the jury believe the testimony in the cause; and that such sale--if the jury believe that the horses and other means were owned and left on hand of defendant, at the time of contract between plaintiff and defendant, was no violation of the contract on the part of the defendant; and furthermore, that the letting Thompson have two horses for and in consideration of the wintering of them, to be returned in the spring, if the jury should believe they were occasionally run in the opposition line, was no violation of the contract, unless the jury should believe the said horses were purchased by the defendant with the view of assisting the opposition line, and that defendant let Thompson have them for that purpose. Whereupon the plaintiffs excepted.

2d EXCEPTION. The evidence offered in the first bill of exception by plaintiffs and defendant, and which is to form a part of this bill of exception, having been given, the plaintiffs by their counsel prayed the Court to direct the jury upon the following prayers:

First. That if the jury find from the evidence that the defendant furnished the owners of the opposition line herein before mentioned, with two horses for the purpose [**23]  of being used in the said opposition line of stages herein before mentioned, from September, 1825, until the spring following, for which the defendant was to pay nothing but the expenses of keeping them; and also that the defendant furnished the owners of the said opposition line with two other horses, three stages, and three sets of harness for $ 1050, to be paid for when convenient, to a certain Stephen J. Thompson, for whose use and benefit the said opposition line was established; and if the jury also find that these means were furnished by the defendant as above mentioned, for the purpose of assisting in the establishment and support of the said opposition line; and that the said means, so furnished, did the better enable the owners thereof to establish and support the same; that then the plaintiffs are entitled to recover, notwithstanding the defendant was not an owner or part owner of the said opposition line, or of any part or portion thereof, or of the property employed therein.

Second. If the jury believe that John H. Barney, the defendant, lent Stephen J. Thompson three horses, for the purpose of being used in a line of stages in opposition to the plaintiffs, and which [**24]  horses were so used, that then the plaintiffs are entitled to recover.

Third. If the jury shall believe that Stephen J. Thompson, after the 30th September, 1825, and before the institution of this suit, established and carried on a line of stages in opposition to the plaintiffs, and that John H. Barney, the defendant, hired to said Thompson stables, sold him carriages, horses and harness, for the purpose of being used and employed in such opposition line, then the plaintiffs are entitled to recover.

Fourth. If the jury shall find, from the testimony given in the trial of this action, that the defendant before the time of making the contract with the plaintiffs, set forth in the declaration, had been informed and knew at the time of making such contract, that it was the intention of Stephen J. Thompson to establish and carry on a line of stages between Baltimore and Washington, in opposition to the line owned by the plaintiffs on said road, and that the defendant afterwards furnished to the said Thompson such a portion of the means, advice and assistance necessary to establish and carry on such opposition line, as he could not otherwise have obtained, or without the aid of [**25]  which the said Thompson could not have effected the establishment and carrying on of such opposition, the defendant knowing and intending that the means, advice and assistance furnished by him, would and should be so used by said Thompson, then the plaintiffs are entitled to recover.

Fifth. If the jury shall believe from the evidence, that the defendant, in making the sale of his horses, stages and harness to Stephen J. Thompson, and contracting with him for the compensation to be paid for the rent of stables and boarding of drivers, to be used in establishing and carrying on a line of stages on the Washington road, in opposition to the plaintiffs, derived any benefit or advantage from the intended aid thereby to be afforded, in effecting the establishment, or of the carrying on of such opposition, then the defendant was concerned in such opposition, contrary to his agreement, and the plaintiffs are entitled to recover. Which several directions the Court refused to give. Whereupon the plaintiffs excepted.

The verdict and judgment being for the defendant, the plaintiffs appealed to this Court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The plaintiff and defendant being joint owners of a line of stages, agreed as follows: "I (the defendant) hereby acknowledge to have received of D. (the plaintiff) stage proprietor on the W. and B. road, $ 9000, as a full compensation for the within named four teams, and two coaches; and I bind myself to withdraw all my pretensions to any part of said road; and I herewith deliver to the said D. the teams as they are at this instant, on the road between this place, (B.) and W.; and further pledge myself not to be concerned, direct or indirect, in any line of stages in opposition to him." HELD, that in construing this contract, the Court must endeavor to arrive at the meaning of the parties, by looking to the motives that led to it, and the object intended to be effected by it. The motive was to become sole proprietor of all the stages on that road, and to shut out all opposition. To effect that object, the purchase of the defendant's interest in the stages was made.

The intention of the contract was that the defendant should, in good faith, not only not become interested in any opposition, but that he would not in any manner aid or become instrumental in the setting up, or carrying on an opposition line.

The word "indirect" was used for the special purpose of guarding against any kind of interference by the defendant, in aiding, or in any manner promoting the establishment of, or carrying on, any opposition.

A line of stages being established in opposition to the plaintiff's line, the Court held, that if the defendant furnished its owners with money, credit, or other means, for the purpose of enabling them to carry it on, and that the means so furnished, did enable them to establish and carry it on, and that they could not have established or carried it on without such means, or that the defendant did furnish them with money, credit, horses, or any other means, for the purpose of enabling them the better to establish or carry it on, and that such means did so enable them, then the plaintiff was entitled to recover damages for a breach of the said contract.

When there is any legal admissible evidence, tending to prove the issue in a cause, the effect of that evidence is solely for the consideration of the Jury.

When there is no evidence applicable to the issue, or tending to prove any material fact, there is a total failure of evidence, the Court will direct the Jury accordingly.  

COUNSEL:
Meredith and Taney, (Att'y. Gen'l.  [**26]  of Md.) for the appellants, contended, 1. That by the true construction of the agreement before mentioned, if Barney furnished the owners of the opposition line with money, credit, horses, or other means, for the purpose of enabling them the better to establish or carry on that line, and that such means did enable them the better to establish or carry on that line, that then he has broken his agreement, and the plaintiffs are entitled to recover. The defendant had no right to interfere in any way with the line of the plaintiffs. The object of the contract was to prevent his being concerned, or assisting in establishing a line of stages on the Washington road. Furnishing means or credit for such a purpose, was a violation of the contract. 9 Massa. Rep. 522, 524. The word "indirect," was introduced into the contract, to prevent the defendant co-operating with, or affording any assistance to the opposition line. The word "direct," would merely have prevented his having an interest in the line. The contract meant something more than merely to prohibit the defendant from being interested in the stages. The decision in 9 Massa. Rep. is applicable to this case. It did not turn upon the pleadings,  [**27]  but upon the contract, and in that case the stipulation was not that the defendant would not be concerned in the trade, but that he would have no interest in it; yet it was held that fitting out a vessel, though she was sold before she sailed, was a breach. The object was, to get rid of a rival in a limited trade, and here to get rid of one in a much more limited object. The fact that Thompson informed the plaintiff's that he would establish an opposition line, was the reason that induced them to insist on the stipulation restraining defendant. 2. If the Court should be of opinion that the first proposition cannot be maintained, then it is contended that if Barney furnished the owners of the opposition line with money, credit, or other means, for the purpose of enabling them to establish and carry on that line; and that the said owners could not have established it or carried it on without the means so furnished by Barney, that then he has broken his agreement, and the plaintiff is entitled to recover. 3. There was evidence offered on the part of the plaintiffs, tending to prove that Barney did furnish the owners of the opposition line with means, for the purpose of the better enabling [**28]  them to establish or carry it on; and that they were thereby the better enabled to establish it and carry it on. 4. That there was evidence offered on the part of the plaintiffs, tending to prove that Barney did furnish them with means for the purpose of enabling them to establish and carry on the opposition line. McElderry vs. Flannagan, 1 Harr. and Gill, 320. Fergusson vs. Tucker, 2 Harr. and Gill, 189. Drummond vs. Prestman, 12 Wheat. 515. 1 Stark. Evid. 400. Mason vs. Harrison & Boggs, 5 Harr. and Johns. 480.

JOHNSON, and WILLIAMS, (District Attorney U. S.) for the appellee, upon the construction of the contract, contended that it was merely a stipulation that Barney would have no interest in any opposition line, not that he would not sell his horses, &c. to other persons, though he might in so dealing sell to persons engaged in the opposition line. There is proof that before the contract, that Thompson told one of the plaintiffs that he would run an opposition line on the road, there could not therefore have been any expectation on the part of the plaintiffs, that by buying defendant's interest they would get clear of all opposition, or that defendant's horses, &c. would [**29]  remain unsold. In construing written contracts, you may look to the situation of the parties. 8 Massa. Rep. 214. 18 Ib. 332. The case cited from 9 Massa. Rep. by our opponents, was a demurrer to the plaintiff's replication, and the facts therein stated and those in the declaration, are admitted, except so far as they are contradicted by the plea. The replication charges that the ship was fitted out by the defendant, whose skilful competition it was the object of the contract to remove. If he had merely sold a vessel on hand at the time of the contract, without a cargo, for such a voyage, then it would be something like the case at bar; for the direction of the Court is, that if Barney merely sold carriages and horses on hand at the time, and known by the plaintiff to be on hand, that was no breach; a contract not to carry on a particular trade, cannot be broken by selling materials or goods on hand at the time, to any one who proposes to carry on such a trade. 2. Was there any evidence which entitled the plaintiff to recover. The Court do not say that the plaintiffs evidence does not entitle them to recover, but if the evidence on both sides is believed, then they cannot recover. The [**30]  jury could not find for the plaintiffs, without disbelieving the defendant's proof, it being positive, but they might have found for defendant, without disbelieving the plaintiffs proof, because there was no conflict between the circumstances proved by them, and the absence of any interest in the defendant. All the plaintiffs proof must be true, consistently with the defendant's evidence. The plaintiffs proof was but presumptive, and could only be good in the absence of positive proof. If, however, there is a conflict in the proof, the plaintiffs were not excluded from the jury. The direction of the Court left them at liberty to show that Thompson, defendant's witness, was not to be believed. They cited 4 Cranch, 62. 6 ib. 226. 5 Massa. 10.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*400]  BUCHANAN, Ch. J., delivered the opinion of the Court.
This was an action of trespass on the case, for the alleged violation by the defendant of a contract, or engagement by him, with the appellants, dated at Baltimore, the 30th of September, 1825, which is in these terms: "I hereby acknowledge to have received of Messrs. David  [**31]   Barnum & Co., stage proprietors on the Washington and Baltimore road, $ 9,000, as a full compensation for the within named four teams and two coaches; and I bind myself to withdraw all my pretensions to any part of the said road, and I herewith deliver to the said company, the teams as they are at this instant on the road between this place and Washington, and further pledge myself not to be concerned, direct or indirect, in any line of stages in opposition to them." This is written on the back of a letter from the defendant to one of the appellants, containing proposals of sale, to which it refers by the expressions, "for the within named four teams and coaches."
It appears that an opposition line of stages was very soon afterwards set up: upon which the question arose, whether the circumstances under which that opposition line was set up and carried on, amounted to a violation by the defendant of his contract. A great deal of parol evidence was offered at the trial, on both sides, and the case comes up on two bills of exception, taken to the refusal of the Court to give the instructions prayed for by counsel for the appellants, and to the direction that was given to [**32]  the jury in reference to the testimony. The direction given to the jury, is in these words: "that there was no evidence in this cause, to show that the defendant had furnished the opposition line with credit, money, horses, or other means, in order the better to enable the owners of the opposition line to carry it on, but that the horses and other means were sold by defendant to said opposition line, if the jury believe the testimony in the cause; and that such sale, if the jury believe that the horses and other means were owned and left on the hands of defendant, at the time of the contract between 

 [*401]  plaintiffs and defendant, was no violation of the contract on the part of the defendant; and furthermore, that the letting Thompson have two horses, for and in consideration of the wintering of them, to be returned in the spring,--if the jury should believe the evidence, although the jury should believe they were occasionally run in the opposition line, was no violation of the contract, unless the jury should believe the said horses were purchased by defendant, with the view of assisting the opposition line, and that defendant let Thompson have them for that purpose.  [**33]  " This involves the construction of the contract, and also the question whether the direction of the Court amounted to an invasion of the province of the jury. The whole of the evidence being set out in the first bill of exception, it is unnecessary here to state it particularly.
In construing this contract, we must endeavor to arrive at the meaning of the parties, by looking to the motives that led to it, and the object intended to be effected by it. The motive, then, of the appellants, who were stage proprietors on the Washington and Baltimore road, was manifestly to become sole proprietors of all the stages on that road, and to shut out all opposition; and to effect that object, the purchase of the interest of the defendant, in a line of stages then running on the same road, was made. And it cannot be believed, that with such an object in view, they would have made the purchase with any other understanding than that the defendant should, in good faith, not only not become interested in any opposition line, but that he would not in any manner aid or become instrumental in the setting up or carrying on an opposition line. If that was not the understanding and intention, the [**34]  purchase was a very wild and unmeaning one, as there were many ways in which the defendant, without being concerned in interest, might be concerned or engaged in promoting and encouraging the setting up and carrying on an opposition line, to their prejudice, and to the total loss of the amount given for the immediate interest bought out. The purchase was 

 [*402]  not made for the purpose of throwing away, or giving to the defendant, $ 9,000, which would be the effect if he was at liberty and disposed so to act, immediately to lend his aid and patronage to the establishment of an opposition. But it was made for the purpose of shutting out all opposition, and securing to themselves the exclusive advantages of the road, so far at least as related in any manner to the defendant; to effect which object the concluding stipulation, "and further pledge myself not to be concerned, direct or indirect, in any line of stages in opposition to them," would seem to have been introduced. The word indirect seems to us to have been used for the special purpose of guarding against any kind of interference by the defendant, in aiding or in any manner promoting, the establishment of, or carrying [**35]  on, any opposition. Our construction therefore of the contract is, that the defendant could not, without violating the contract, set up or carry on, or knowingly aid or intermeddle, or in any way whatsoever, directly or indirectly, be concerned in setting up or carrying on any line of stages on that road, in opposition to the appellants; he was bought out for the purpose of being put entirely out of their way. Under any other construction, the word indirect would lose its office, and the object of the contract be defeated. Suppose the defendant immediately after the contract, had given all the horses and stages he owned to a son, for the express purpose of setting up an opposition line to the appellants, or (under feelings of resentment for some cause or other) to a stranger, for the same purpose, and with a view of injuring the appellants, or had given a premium to any one to set up such a line of opposition, can it be doubted that in either case he would have broken his contract. He had the same right to sell any horses or stages that he owned at the time of the contract, that he had to sell any other property to whom he pleased, without intending that they should, or knowing [**36]  that they were to be put to the purpose of setting up a line of opposition stages. But he could not have sold them to any person, for the express purpose of 

 [*403]  being so used, without violating his contract; nor had he under his contract any right to loan or hire any of his horses to the owners of the opposition line, for the purpose of being used on such line. And in the case of his hiring or lending any of his horses to the owners of the opposition line, for the purpose of being used on such line, we do not perceive that it would make any difference whether they had belonged to him before, or whether they were purchased by him for that purpose, the breach of the contract consisting in his assisting the opposition line by letting the owners have them for that purpose.
It is our opinion, therefore, that if the defendant did furnish the owners of the opposition line with money, credit, or other means, for the purpose of enabling them to establish and carry on that line; and that the means so furnished, did enable them to establish and carry it on; and that they could not have established or carried it on without such means, so furnished by the defendant; or that he did furnish [**37]  them with money, credit, horses, or any other means, for the purpose of enabling them the better to establish or carry on that line; and that such means did enable them the better to establish or carry it on, the appellants were entitled to recover, and that there was legal and competent evidence in the cause, tending to prove either of those propositions, which ought to have been submitted to the jury for their decision upon its effect. The general rule being, that 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. Though we have said the testimony taken at the trial, ought to have been left to the jury, as tending to prove the issue on the part of the appellants, we wish to be distinctly understood as intending to express no opinion touching the effect of that evidence, further than that it was fit to be left to the jury for their consideration, to pass for whatever it was worth, and have therefore intentionally avoided commenting on any part of it, to show in what it tended to prove the issue, or any 

 [*404]  material fact in the cause. There seems to be an impression at the bar, that [**38]  this Court has held the measure and quantity of proof to be a question of law, and the case of Davis vs. Davis, et al. 7 H. & J. 36, is commonly relied upon in support of that doctrine. We by no means mean to shake the authority of that case, but think it has been misunderstood. When there is no evidence applicable to the issue, or tending to prove any material fact, a total failure of evidence, the Court will direct the jury accordingly; and that we conceive to be the doctrine of Davis vs. Davis, et al. The expressions used, are intended to be applicable to the facts of that case; and so applied, they are not, we apprehend, opposed to the principle here asserted, that if there be any evidence tending to the proof of the issue, however weak, it ought to be submitted to the consideration of the jury. Under this view of the subject, we dissent from the opinion of the Court below, on both bills of exception, and we think the direction of the Court, that there was no evidence in the cause to show that the defendant had furnished the opposition line with credit, money, horses, or other means, in order the better to enable the owners of that line to carry it on, was [**39]  an invasion of the province of the jury, to whom that question ought, upon the evidence, to have been left.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

17 of 34 DOCUMENTS 

RICHMOND AND RICHMOND vs. DE YOUNG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 64; 1830 Md. LEXIS 49 

December, 1830, Decided 

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

This was a Scire Facias, against Meichel De Young, as special bail of C. E. Chevalier. The writ issued on the 2d August, 1828. At September term, 1826, of Baltimore County Court, the defendant had become the bail of Chevalier, against whom the present plaintiffs obtained judgment at September term, 1827. The declaration in the original action, counted upon a promissory note of Chevalier, bearing date at Philadelphia, the 17th November, 1825, for $ 449 87, payable six months after date to the plaintiffs. And also contained the common counts.

By the 29th rule of Baltimore County Court, the principal may be surrendered in discharge of his bail, upon payment of costs at any time during the sitting of the court, to which the scire facias against the bail is returnable, and before the jury is discharged; but this privilege shall not extend to an adjourned court, when the first scire facias is returned scire feci, or nihil is returned upon a second scire facias.

The scire facias was returned at September term, 1828, "made known," whereupon the defendant, before the jury for that term was discharged, appeared and moved the court, to exonerate [**2]  him as the bail of Chevalier, because he, Chevalier, had been discharged under the insolvent laws of Pennsylvania.

It was admitted that the plaintiffs at the time when the contract upon which the judgment was obtained, were, and ever since have been, citizens or residents of the State of Rhode Island, and that Chevalier was a citizen or resident of Pennsylvania. On the 15th October, 1827, Chevalier obtained his discharge from the Court of Common Pleas of Philadelphia, which ordered "that the said petitioner, Chevalier, shall not at any time hereafter be liable to imprisonment, by reason of any judgment or decree obtained for payment of money only, or for any debt, damage, cost, sum or sums of money, contracted, occurred, occasioned, owing, or becoming due before the time of such assignment." The law under which this discharge was granted, existed prior to the making of the original contract, and it was also agreed, that the facts and circumstances of the case might be considered as if pleaded to the scire facias; that no objection should be taken to the motion upon the ground of form. The County Court [ARCHER, J.] adjudged that the defendant, De Young, should be exonerated and [**3]  discharged from his bail aforesaid. Upon which the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

It has long been the established practice of our courts, upon the production of a release of the principal under the Insolvent Laws of another State, by the special bail, to enter an exoneretur of the bail.  

COUNSEL:
By Hinkley, for the appellant, and R. N. Martin, for the appellee.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*66]  BUCHANAN, Ch. J., delivered the opinion of the court.
We think the special bail in this case was properly exonerated by Baltimore County Court.
As far as we have been able to trace the subject, it appears to us, to have been long the practice of the courts of this State, to discharge a special bail, on the production of evidence of the release of his principal, under the insolvent laws of another State. It was done by the late General Court, and is done, as far as we can ascertain, by the County Courts in the several judicial districts, in cases similar to this; and seeing nothing opposed to it, in the constitution of the United States, we are not disposed at this late day, to shake a practice so well, and as we think properly established. The judgment of the County Court, is therefore affirmed, with costs.
JUDGMENT AFFIRMED.  

18 of 34 DOCUMENTS 

GWYNN vs. THOMAS 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 420; 1830 Md. LEXIS 31 

June, 1830, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery.

The bill of the complainant, Allen Thomas, (the present appellee,) which was filed on the 3d of July, 1826, stated, that William Gwynn, (the appellant,) and the complainant, were entitled to a tract of land lying in Anne Arundel county, called "The Valley of Owen," as tenants in common, and being so entitled, the complainant for the purpose of acquiring a title to the whole tract in severalty, contracted with the said Gwynn for the purchase of his moiety of said tract, for a large sum of money. That the complainant hath since paid the whole purchase money, and that said Gwynn, in colorable execution of his contract, on the 16th February, 1826, executed and delivered to a friend of complainant, acting in his behalf, a deed, a copy of which is exhibited, marked A, which said deed, complainant alleges, does not convey to him a clear and undisputed title to the said tract, called "The Valley of Owen," with all the advantages incident thereto, and as the same might be enjoyed under the original patent thereof. That when apprised of the defect in the conveyance so executed, the complainant caused application to be made to the said Gwynn for another [**2]  conveyance, which should more perfectly execute the contract between him and complainant, but that said Gwynn refuses to make, or execute any other conveyance, though the deed already executed and exhibited, contains a clause for further assurance. Prayer, that the said Gwynn may be decreed to convey to complainant, the said tract called "The Valley of Owen," by a deed to be prepared under the direction of the Court of Chancery, and for general relief. Exhibit A, is the deed from the appellee to the appellant, bearing date on the 16th day of February, 1826, whereby, in consideration of the sum of $ 4200, paid by the appellee to the appellant, through the Mechanics' Bank of Baltimore, the appellant conveyed to the appellee in fee simple, the premises as described in the opinion of this Court.

The answer of Gwynn stated, that the whole tract called "The Valley of Owen," was conveyed to him by certain trustees appointed by the Court of Chancery, and of whom he had purchased, by deed bearing date on the 11th of February, 1814, an authenticated copy of which deed is exhibited with the answer. That, whilst the title to the whole tract was so vested in him, he, on the 9th of November,  [**3]  1816, obtained a special warrant of resurvey, on the said tract called "The Valley of Owen," which was executed on the 24th of October, 1817; that whilst the surveyor was employed in executing the said warrant, the defendant being desirous of settling and quieting certain doubts, which existed as to the true location of the third line of the said tract, entered into an agreement, on the said 27th October, 1817, with the owners, or persons supposed to own lands binding on said line, to wit, George Ellicott and others, to adjust and fix the same; which agreement was reduced to writing, and signed by the respective parties concerned, and the said line was accordingly so adjusted, and was referred to and described by the surveyor in his certificate, made in pursuance of the said warrant, and also in the patent, issued on the said certificate, so resurveyed by the name of "Glen Owen," as appears by the said patent, which bears date on the first of February, 1819, a copy of which is exhibited, with the answer. The answer further states, that the defendant purchased the said tract from the said trustees, on joint account, with one John Conrad, of Philadelphia, who was to have a joint and [**4]  equal interest with him, and who was to pay one-half of the purchase money; that after the said Conrad had paid a portion of his moiety of the said purchase money, his interest in the said land, was conveyed to other persons, by whom the residue of said Conrad's moiety was paid, and that subsequently the said moiety of the said Conrad became mortgaged on the 15th of October, 1819, to a certain Henry Thompson and Talbot Jones, and others, who filed a bill on the said mortgage, and on the 27th of July, 1820, a decree was passed for the sale of the said premises, and this defendant was appointed trustee for the purpose of selling the same, as by the proceedings in said cause will appear; that the defendant, in his advertisement of sale, under said decree, described the said land, as one undivided moiety of a tract called "Glen Owen," the name given to it on making the re-survey, and that the complainant was the highest bidder, and purchaser of the same at said sale, at $ 16 per acre, and by the name of "Glen Owen," as will appear by a written acknowledgment of such purchase, signed by the complainant, herewith produced and exhibited; that in his report of the sale so made to the Chancellor,  [**5]  this defendant stated that he had sold the same to the complainant, as an undivided moiety of a tract of land called The Valley of Owen, and lately resurveyed by the name of "Glen Owen," and that the complainant having complied with the terms, this defendant on the 10th of March, 1823, conveyed the same to him accordingly; that on or about the 19th October, 1821, this defendant mortgaged his undivided half of the said tract of land by the name of "Glen Owen," to the President and Directors of the Mechanics' Bank of Baltimore, and that after it was so mortgaged, and after the complainant had purchased the other undivided moiety as aforesaid, that is to say, in February, 1822, the defendant agreed to sell his undivided moiety of said land to the complainant, the defendant having previously ascertained that the Mechanics' Bank would confirm the sale, whereupon the complainant was authorized, and did take possession of the same. The defendant admits that he contracted to sell the said land by whatever name the same might be called, but insists that such contract and sale was made with full knowledge on the part of the complainant, of the resurvey, and the before mentioned agreement in [**6]  writing, relative to the adjustment of one of the lines of said tract. The answer further states, that upon the payment of the mortgage debt to the said Mechanics' Bank, which debt was the consideration to be paid by the complainant to him for the said land, he, the defendant, at the request of the complainant, executed the deed referred to, and exhibited with the bill; and he submits whether he ought, under the circumstances, to make any other or further deed in the premises.

The exhibits filed with the answer it is not deemed necessary to set out, nor is it necessary to refer to the proof taken under the commissions which issued in the cause.

The general replication was filed to the answer.

Bland, Chancellor, (March term, 1827.)

It appears that the defendant, on the 11th of February, 1814, as a purchaser under decree of this Court, obtained a deed, and thus became legally seized in fee simple of the whole of a tract of land called "The Valley of Owen." That of this tract, the legal title of which was thus vested in him, a certain John Conrad, was by agreement, entitled to one undivided moiety, which Conrad conveyed to Edward Gray and Robert Taylor, and by them [**7]  it was transferred to the Patapsco Manufacturing Company; that they mortgaged it to Henry Thompson, Talbot Jones and others; and that it was afterwards, at the suit of these mortgagees, (this defendant, William Gwynn, being a party to that suit,) sold under a decree of this Court; on which sale this plaintiff, Allen Thomas, became the purchaser, and has thus obtained a legal title in fee simple, to one undivided moiety of this tract called "The Valley of Owen," as particularly appears by the order of the 20th of August, 1825, in that suit, and the deed of the 19th of September of the same year, (these papers were returned with the commission.) Thus far this case is clear of all ambiguity or controversy.

But it appears by an agreement dated on the 24th of October, 1817, that the third line of this tract, called "The Valley of Owen," separated lands wherein five distinct parties were interested; that doubts were entertained by them as to its true location, and that it was the object of the agreement to fix its position beyond dispute. Accordingly with this view, a warrant of resurvey was obtained by William Gwynn for this tract, called "The Valley of Owen," by which its third line [**8]  was located in pursuance of the agreement, and a certificate returned, and on the first of February, 1819, a patent obtained thereon for this land, by the name of "Glen Owen." It is this new name which has caused the confusion, and been the occasion of this suit. But by bringing the direct rays of a few particulars to bear upon this matter, the mist which has obscured it, may be readily dispersed.

William Gwynn, it must be recollected, became seized of the whole of this tract of land by the name of "The Valley of Owen," the one undivided moiety of which, by that name, we have traced from him into the hands of the plaintiff. This bill alleges that after the plaintiff had obtained a title to one undivided moiety of "The Valley of Owen," he purchased the other moiety of the same tract of the defendant. This defendant in his answer says, that on the 19th of October, 1821, (which was some time after he had purchased the tract, and obtained a patent for it, by the name of "Glen Owen,") he mortgaged his moiety of it by the name of "Glen Owen," to the Mechanics' Bank; and after he had done so, he says in his answer, that he "admits that he agreed to sell and convey all his right, title,  [**9]  and estate, legal and equitable, in and to the said undivided moiety of the said tract of land, by whatsoever name it was or had been called, to the complainant; but charges that such agreement and sale was made, with a full knowledge on the part of the complainant, of the resurvey, the agreement in writing with George Ellicott and others, and the mortgage. This admission is corroborated by the proofs from which it appears, that the defendant agreed, and stipulated to sell his moiety of this tract of land to the plaintiff, by the name of "The Valley of Owen."

It is perfectly clear then, that according to the contract, between these parties, as alleged, admitted and proved, this plaintiff is entitled to a conveyance from this defendant of the undivided moiety held by him of the tract of land called "The Valley of Owen."

The operation of the agreement on which the resurvey was founded, and the effect of the notice which it is alleged the plaintiff had of that agreement, are matters foreign from present enquiry. The nature, and extent of the contract between the parties, has been clearly shewn and established. It has been complied with by the plaintiff, and he is therefore now [**10]  entitled to have it fulfilled by the defendant.

Decreed, that the said defendant William Gwynn do, and he is hereby commanded forthwith, to convey by a good and valid deed, made, executed, acknowledged, and delivered, according to law, all his right, title, and interest, of, in and to the said undivided moiety of the tract of land in the proceedings mentioned, called "The Valley of Owen," unto the said plaintiff Allen Thomas, to have and to hold to him, his heirs, and assigns, in fee simple, &c. and that defendant pay complainant his costs.

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

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

G and T were seized in fee, as tenants in common, of a tract of land called the Valley of Owen. T contracted with G for the purchase of his moiety and paid the purchase money, upon which G executed and delivered to T, a deed for "all that one equal undivided half part of a tract of land called the Valley of Owen, which was sold by G to T (and which at the instance of the said T to secure the payment of the purchase money to M, G had conveyed to M by the name of Glen Owen, and the said purchase money being fully paid to M, the said M by deed, has this day conveyed to said T) together with all the advantages and appurtenances to the same belonging or in any wise appertaining, and all the estate, right, title and interest whatsoever, at law and in equity of the said G, of, in, and to the same." This deed also contained a covenant for further assurance. T filed his bill for further assurance, alleging that his deed did not convey to him a clear and undisputed title to the tract called the Valley of Owen, with all the advantages incident thereto, and as the same might be enjoyed under the original patent thereof. Held that this was a valid deed to pass to complainant all the right of G to a moiety of the tract of land called Valley of Owen.  

COUNSEL:
Johnson, for the appellant, contended,

1. That the contract between the parties was only for the land included within a resurvey upon the said tract, in which said land was called "Glen Owen."

2. That if it was otherwise, and the defendant below was bound to convey "The Valley of Owen," he had before the filing of the complainant's bill done so, by his deed to the complainant of the 16th February, 1826.

3. That in any event, costs should not have been decreed against the defendant below.

4. The bill does not sufficiently show what [**11]  other assurance or deed, the complainant wishes the defendant to execute. On the first point he referred to the act of 1786, ch. 33, sec. 6. On the second to 13 Johns. Rep. 359. Gazley vs. Price, 16 Ib. 267. Miller vs. Parsons, Ib. 336. On the third, to 9 Johns. Reps. 336.

Magruder and Alexander for the appellee, contended, that the deed of February, 1826, was not so free from ambiguity, that a reasonable doubt might not be entertained, whether it did, or did not convey "The Valley of Owen," and therefore the grantee might call for another deed. The cases referred to on the other side, were cases at law for supposed breaches of covenant. It was not possible for the complainant to exhibit a deed to the defendant, such as he was entitled to, previously to the filing of the bill; the application to the Chancellor, being not only for a deed, but he was to prescribe such an one, as complainant was entitled to; they referred to Buchanan vs. Stewart, 3 Harr. and Johns. 329; and on the question of costs, to Jenour vs. Jenour, 10 Vesey, 571.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*426]  BUCHANAN, Ch. J. delivered the [**12]  opinion of the Court.
The complainant in this case, alleges a contract with William Gwynn, the appellant, for the purchase of an undivided 

 [*427]  moiety of a tract of land called "The Valley of Owen," and states that the appellant, in colorable execution of his contract, had made to him a deed which he refers to, and exhibits as a part of his bill; but alleging that he has been advised it does not convey to him, a clear and indisputable title to the land called "The Valley of Owen," with all the advantages incident thereto, seeks to obtain another deed in execution of the contract, and in pursuance of the covenant for further assurance contained in the deed objected to, but without pointing out the supposed defects in that deed.
The premises conveyed by that deed, are described to be "all that one equal undivided half part, or moiety of a tract or parcel of land, lying in Anne Arundel county aforesaid, called "The Valley of Owen," which was sold by the said William Gwynn, to the said Allen Thomas, on the twelfth day of February, in the year 1822, (and which at his instance to secure the payment of the purchase money to the Mechanics' Bank of Baltimore [**13]  , the said William Gwynn conveyed by the name of "Glen Owen," to the President and Directors of the Mechanics' Bank of Baltimore, and the said purchase money being fully paid to the said Bank, the said President and Directors, by deed of the same date, have conveyed to the said Allen Thomas,) together with all and singular, the buildings and improvements, ways, water courses, rights, privileges, advantages, and appurtenances thereto belonging, or in any wise appertaining; and all the estate, right, title, interest, trust, property, claim and demand, whatsoever, at law, and in equity of the said William Gwynn, of, in, and to the same." There is in the deed a special warranty with a covenant for such further and other deed, conveyance and assurance, as may reasonably be required, "for the better and more fully conveying and assuring to the complainant, his heirs and assigns, "all the right, title, estate and interest, at law and in equity, which the said William Gwynn can lawfully claim, in and to the said premises, with the appurtenances."

 [*428]  The appellant in his answer, among other things says, that he made the deed so referred to, and exhibited by [**14]  the bill, at the request of the complainant, and submits to the Chancellor whether he ought, under the circumstances set out in his answer, to make any further deed.
Several commissions were issued, and evidence taken in the cause, and on final hearing the Chancellor decreed that the appellant should forthwith convey to the complainant by a good and valid deed, all his right, title and interest, of, in, and to one undivided moiety of the tract of land called "The Valley of Owen," and that he should pay all the costs. From which decree, the case is brought by appeal to this Court.
In the view in which this case presents itself to us, it does not seem to be necessary to enquire into the nature and extent of the original contract between the parties, or whether the complainant was, or was not entitled to a conveyance of one undivided moiety of the tract of land called "The Valley of Owen," under that contract, for admitting the contract to have been as alleged in the bill, and that he was entitled to a conveyance of an undivided moiety of "The Valley of Owen," yet it does not appear to us, that he has any ground to stand upon in Chancery, or on which to erect a claim upon [**15]  the appellant to do more than he has already done.
He admits that he has received from the appellant, a deed which he brings into Court, but demands of him to execute another, and calls on the Chancellor to enforce that demand. We have examined the copy of that deed exhibited with the bill, and are unable to discover in what it either is, or can be supposed to be, defective, either in form or substance, or as respects the name, or description of the land, but think it a good and valid deed to pass to the complainant in fee simple, all the right, title and interest of the appellant, in, and to one undivided moiety of the tract of land called "The Valley of Owen."

 [*429]  The counsel for the complainant have not suggested a defect, nor told us in what it was supposed to be deficient, and it is only from what fell in argument from the counsel for the appellant, that we learn there was some imaginary inaccuracy in the description given in the deed, which we have not been able to detect. It is described as being one undivided moiety of a tract of land called "The Valley of Owen," which had before been conveyed to the President and Directors of the Mechanics' Bank of Baltimore [**16]  , by the name of "Glen Owen," that is, which undivided moiety of "The Valley of Owen," had been conveyed by the name of "Glen Owen," which is a clear and perfect description of it, as one undivided moiety of "The Valley of Owen." The complainant required no further deed, and the going into Chancery, to compel the defendant to make another, was a vexatious and unnecessary proceeding, and the bill ought to have been dismissed. The contract had been fulfilled, and it was unreasonable to drag the party into Chancery, to subject him to a decree to do what he had already done.
There should be some end to litigation, and Chancery should not be resorted to, for the purpose of unnecessarily harassing and subjecting a party to costs and charges, who has done all that he can properly be called on to do. The probability is, that the attention of the Chancellor was not called to the deed which had been given, but that he was left to suppose it was defective, and that another was necessary to the fulfilment of the contract, or looking to that deed, and seeing that it was not defective, but a good and sufficient conveyance in fee, to the complainant, of all the right and title of [**17]  the appellant, to one undivided moiety of "The Valley of Owen," he would not, we presume, have entertained the bill. Bill dismissed with costs.
DECREE REVERSED.  

19 of 34 DOCUMENTS 

STATE USE OF MAYOR AND CITY COUNCIL OF BALTIMORE ET. AL. vs. BOYD 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 365; 1830 Md. LEXIS 25 

June, 1830, Decided 

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

This was an action of debt, instituted by the appellants, on the 26th of March, 1825, against the appellee, James P. Boyd, as one of the sureties in the testamentary bond of Margaret M'Mechin and William M'Mechin, Executors of David M'Mechin, bearing date July 21st, 1810. The following is the condition of the bond: "That if the above bound Margaret M'Mechin and William M'Mechin, Executors of David M'Mechin, late of Baltimore County, deceased, shall pay all just debts of, and claims against the deceased, and all damages which shall be recovered against them, as Executors, and also all legacies bequeathed by the will, then the above obligation shall be void; if otherwise to be in full force and virtue in law."

The defendant pleaded the act of limitations and several other pleas; but in virtue of an agreement by the counsel for the parties, a pro forma judgment was entered in the County Court for the defendant, and an appeal taken by the plaintiff to the Court of Appeals, "where the only questions to be decided, are, whether any of the acts of limitation be a bar to the plaintiff's claim, and whether the length of time, from the date of the [**2]  bond, be not presumptive evidence of payment." Under this agreement, judgment in the County Court was accordingly entered for the defendant, and an appeal taken by the plaintiff, to the Court of Appeals.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The bond required from Executors by the act of 1798, ch. 101. Sub. ch. 14, sect. 6, is a testamentary bond within the meaning of the act of limitations, of 1729, ch. 24, sect. 21, and an action upon such bond not commenced within 12 years after the passing the same, will be barred by pleading the act of 1729 aforesaid.

Any bond required by law to be given by an Executor or Administrator, by reason of the assumed representative character of Executor or Administrator, and to secure the payment of debts and legacies, or the faithful administration of assets, is a testamentary or administration bond, as the case may be.

Statutes are sometimes extended to cases not within the letter; and cases are sometimes excluded from the operation of statutes though within the letter; on the principle that what is within the intention of the maker of a statute, is within the statute, though not within the letter, and that what is within the letter of the statute, and not within the intent of the maker, is excluded, it being an acknowledged rule in their construction, that the intention of the maker ought to be regarded.  

COUNSEL:
Hoffman and Mayer, for the appellant, argued that so far as the bar of limitation is concerned, the questions arising in the cause are:

1. Whether the plaintiff's claim is barred by the act of Assembly of 1729. ch. 24, s. 21, which declares, "That all actions upon administration and testamentary bonds shall be commenced within twelve years after the passing of the said bonds, and not after."

2. If not barred by the act of 1729, ch. 24, s. 21, then whether the act of 1715, ch. 23, s. 6,--be a bar, under the provision that "no bill, bond, judgment, recognizance, statute merchant or of the staple, or other specialty whatsoever, except such as shall be taken in the name or for the use of our sovereign lord the king, his heirs or successors, shall be good and pleadable, or admitted in evidence against any person or persons of this province after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action above twelve [**3]  years standing."

To support the position that the act of 1729, ch. 24, s. 21, is a bar, the defendant must contend that the bond given in this case is a testamentary bond; and that it is embraced, too, by that act, although the law (1798, ch. 101.) which first creates the bond in question, passed nearly seventy years after the former act.

I. The plaintiff contends that:

1. The bond in question is not a testamentary bond in its nature--being given only in order to dispense with a testamentary bond so called--and a testamentary bond being such as the testamentary act of 1798, ch. 101, prescribes to be given by an executor or administrator in the ordinary course of administration, and to secure his accountability to the Orphans' Court, but from which accountability, it is the pointed object of the present bond to free the executor or administrator:--That by giving this bond, the executor or administrator does for all purposes, except the form of probate and establishment of claims against the deceased, identify his representative with his own personal capacity--and that the bond, substantially, is not, therefore, his bond as executor or administrator, since it creates a [**4]  liability that supersedes the qualified obligation peculiar to the legal character of executor and administrator.

2. That if the bond be a testamentary bond, from the character of its provisions, it nevertheless does not come within the act of 1729, ch. 24, that act embracing only such bonds as existed of that designation when it passed, and that were then known to the testamentary system of Maryland, which was not the case with the present bond.

II. The plaintiff maintains that her claim is not barred by the provision of the act of 1715, ch. 23, s. 6.

1. Because the very terms of the bond require of the executor only to satisfy such debts of the deceased as shall "be recovered against him as executor;" and that looking only to that mode of establishing the fact of the liability of the deceased, there can be no default of the executor to which the bond can apply, until a judgment be had against him as executor, and he refuse or fail to satisfy the judgment: And that, consequently, the present claim "standing in action" only from 1816, the time of the judgment against the executor, until 1825, when this suit was brought, twelve years have not, according to the conditions [**5]  of the act, run against the claim.

2. But, if even the terms of the bond did not expressly require a judgment to be obtained against the executor as preliminary to the claim of the creditor of the deceased on the bond, the nature of the obligation would, of itself, require such previous proceeding: because, 1st, such is the mode alone recognised by common law for determining the fact of a testator being indebted; and the provision of the act creating this bond is not, except where necessity so requires it, to be construed to repeal or alter the antecedent common law of proof of claims against the deceased; but is to be understood to have, by the bond, given an additional security for payment of claims thus established, in relieving the creditor from the trouble of finding assets of the deceased: and, 2d, because the act of 1798, ch. 101, sub ch. 4. s. 6, contemplates the proceeding against an executor, as such, to establish the debt of the testator in declaring that, "if suit be "brought against him AS EXECUTOR, the judgment shall be for the whole sum found by the jury, or otherwise ascertained; and execution may issue and have effect as if he were sued in his own right;" and,  [**6]  4th, because the responsibility of the surety, now sued, being merely collateral to the liability of the executor as executor, the issue of the testator's liability for the debt, could not be tried in the suit against the surety on the bond: the only issue in such a suit being the executor's liability; and all inquiry behind any judgment for the debt against the executor being denied to the surety.

3. The plaintiff, however, contends that if this be not deemed a testamentary bond within the act of 1729, ch. 24, then no act of limitation applies to it, since the act of 1715, ch. 23, sec. 6, the only act of limitation on the subject of bonds, excepts all bonds given "in the name or for the use" of the king: and the plaintiff maintains that the State of Maryland, to whom the bond in question is given, has succeeded to the same sovereign exemption that the king had by that section of the act: and that, but for the act of 1729, ch. 24, sec. 21, there would be no bar of limitations in this State against even an ordinary testamentary or administration bond; such bonds not having been reached by the act of 1715, ch. 23, sec. 6.

III. On the point of presumption of payment from the [**7]  lapse of time since the date of the bond, the appellant contends that this is not a case to which such presumption can apply.

1. Because it is applicable only to cases of bonds, with conditions for paying liquidated and fixed amounts at defined periods; and not to bonds with collateral conditions for contingent or unascertained responsibilities, indeterminate both as to time and amount.

2. But, at all events, at the commencement of the suit, a sufficient time had not elapsed for such a presumption, according to the period fixed by the cases in England on this doctrine.

3. And the appellant contends, that the doctrine in question having grown up in England, to supply a bar of limitations for bonds, for which no statute had provided, it is not to be recognised here, where there exists an act of Assembly establishing such limitations. The referred to the acts of 1715, ch. 23, sec. 6. 1729, ch. 24, sec. 21. 1798, ch. 101. Sub. ch. 14, sec. 6. Val. Dep. Com. 179. Toll. Exrs. 96, 496. 6 Bac. Abr. 383. Ib. 391. Salisbury vs. Black, 6 Harr. and Johns. 293. Montgomery vs. Hernandez, 12 Wheat. 129. Act of 1802, ch. 101, sec. 9. Braxton vs. Winslow, Wash. Va. Rep. 31. Com. Dig.  [**8]  (Covenant) Letter E. 2 Saund. 177. Ward vs. Reeder, 2 Harr. and M'Hen. 152. Kelly vs. Greenfield, Ib. 138. State vs. Rogers and wife, 198. State vs. Stump and Gilpin, Ib. 174. Murray vs. Ridley, 3 Ib. 175. Davidson vs. Clayland, 1 Harr. and Johns. 548. Hall vs. Gittings, 2 Harr. and Johns. 112. Howard vs. Moale, Ib. 260. Patterson vs. Md. Ins. Co. 3 Ib. 71. 3 Stark. Ev. 1089.

Meredith, for the appellee.

The point on the presumption of payment from lapse of time is abandoned.

1. The bond on which this action is brought, is not within the exception of the 6th sec. of the act of 1715, ch. 23. It is to be sure, within the terms of the section; but the interpretation of a statute of this description, is to be liberal, its object being to put an end to controversies between citizens--the statute of James was by the Courts extended to the action of assumpsit, though it is not mentioned--in the exposition of statutes, common law principles are to be regarded. 6 Bac. Abrid. 384. 1 Kent's Com. 423. As evidence of the disposition of Courts to enlarge the operation of the act of limitations, he referred to McLuny vs. Silliman, 3 Peters Rep. 278. The reason of the rule, that limitations [**9]  do not run against the King, only applies to cases in which he is directly interested, and not to cases, where, for the public convenience, his name is used, merely for the benefit of others. The object of the exception is perfectly obvious, and, to accomplish that object, the word "or" may be read and, Fowler vs. Padget, 7 Term Rep. 509. He cited also Schell vs. State, 3 Harr. and Johns. 538. State vs. Wright, 4 Ib. 148, and the act of 1729, ch. 24, sec. 15.

2. The right to sue on this bond commenced immediately upon its execution--the executor thereby made the debts of his testator his own, and of course the preliminary proceedings against the executor, as such, are dispensed with--the act of 1820, ch. 24, applies only to ordinary testamentary bonds. Salisbury vs. Black, 6 Harr. and Johns. 293. Angel on Lim. 181.

3. The bond in this case is a testamentary bond, within the act of 1729; but if it is not strictly within the law, it is within its meaning and the mischief intended to be prevented, and the act will be expanded to embrace it. Angel on Lim. 162. The act of 1729, operates prospectively on bonds of this description. Adams vs. Woods, 2 Cranch, 336.  

JUDGES:
The case came [**10]  on to be argued before BUCHANAN, Ch. J., and EARLE, STEPHEN, and ARCHER, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*371]  BUCHANAN, Ch. J. delivered the opinion of the Court.
The bond upon which this suit was brought, was given to the State by Margaret M'Mechin, who was executrix, and William M'Mechin, who was executor of David M'Mechin, with D. Carroll and James P. Boyd, as sureties, in pursuance of the act of 1798, ch. 101, sub. ch. 14, sec. 6, which provides, that "no executor shall be obliged to exhibit any inventory, or account, provided he will give bond, instead of the bond herein before directed, with such security, and in such penalty, as the Court shall approve to the State of Maryland, to be recorded, and sued, as before directed, with condition for paying all just debts of, and claims against the deceased, and all damages which shall be recovered against him as executor, and also all legacies bequeathed by the will," which are the words of the condition of this bond.
The defendant pleaded five pleas, upon some of which there were issues joined, and demurrers to the rest; whereupon at the trial, a judgment pro forma was rendered for the defendant, upon [**11]  an agreement filed in the cause, by which the only questions presented to this Court on the appeal 

 [*372]  are, whether either of the acts of limitations of this State, which were pleaded, be a bar to the appellant's claim, and whether the length of time from the date of the bond, be not presumptive evidence of payment. The latter point being abandoned by the Counsel for the defendant, our enquiry is restricted to the questions arising upon the pleas of the acts of limitations.
The act of 1729, ch. 24, sec. 21, provides, "that all actions upon administration and testamentary bonds, shall be commenced within twelve years after the passing the said bonds, and not after." This bond bears date the 21st of July, 1810, and the original writ was impetrated on the 26th of March, 1825, almost fifteen years after the date of the bond; and if it is to be considered as a testamentary bond, within the operation of that act, the right of the appellant to recover is thereby barred. Is it then such a bond? The condition is not, indeed, in the form of the ordinary testamentary bond, nor of that which was in use, when the act of 1729 was passed; and such a bond given by one not connected [**12]  with the administration of assets, but a mere stranger, would not be deemed a testamentary or administration bond. But any bond that is required by law to be given by an executor or administrator, by reason of the assumed representative character of executor or administrator, and to secure the payment of debts and legacies, or the faithful administration of assets, is a testamentary or administration bond, as the case may be. The bond in question was given in pursuance, and under the authority of an act of the Legislature, by an executrix and executor named in the will, to secure the payment of all just debts of, and claims against, the deceased, and also all legacies bequeathed by the will, and all damages recovered against them as executors, and does not destroy the representative character any more than the ordinary testamentary bond. On the contrary, the same section of the act, entitled "An act for amending and reducing into system, the laws and regulations concerning last wills and testaments, the duties of executors, administrators 

 [*373]  and guardians, and the rights of orphans and other representatives of deceased persons," commonly called the testamentary system, which [**13]  provides for the giving of such a bond by an executor, also provides, "that in case such a bond be given by an executor, he shall be answerable for all debts, claims and damages, recovered against him as executor; and if suit be brought against him as executor, that the judgment shall be for the whole sum found by the jury, or otherwise ascertained, and execution may issue and have effect. as if he were sued in his own right." Thus clearly shewing the continuance of the representative capacity, in which he may be sued, just as when the ordinary testamentary bond is given. With this difference only, that on giving such a bond, in lieu of the ordinary testamentary bond, he is discharged from the obligation to exhibit any inventory, or account, and is rendered answerable for all the debts, legacies, &c. with or without assets, coming to his hands. Whereas, in the case of the ordinary testamentary bond being given, he is subjected only to a qualified liability. And why should a bond by an executor, which, (whether assets sufficient come to his hand or not) subjects him to the absolute payment of all the debts and legacies, be deemed less a testamentary bond, than one which subjects [**14]  him to an eventual liability only; when, in neither case does he lose his representative character; but may equally in each, sue, and be sued, as executor. By the 10th section of the 3d sub. ch. of the same act, it is provided, "that any bond executed by an executor or executrix, administrator or administratrix, as hereafter mentioned, shall be recorded in the office of the Register of Wills, where administration is granted;" and "that any person conceiving himself, or herself, interested in the administration of said estate, shall be entitled to a copy, upon which an action may be maintained, &c." The words "any bond executed by an executor," and "as hereafter mentioned," thus pointing as well to the bond provided for by the subsequent section, under which this bond was given, as to the ordinary bond by an executor, 

 [*374]  and making no distinction between them, but placing them on the same footing, by making them equally liable to be put in suit, by any person interested in the administration of the estate. The section under which this bond was given, is a branch of the testamentary system providing for a particular mode of administering the estates of deceased persons; [**15]  and the bond required to be given by an executor, (and without which, letters testamentary cannot be granted,) like the ordinary bond of an executor, is for the protection and security of the rights of those interested in the administration of the assets. They are given under the same system, with the same object, by persons acting in the same capacity, and equally under the directions of the will of the testator, and are, we think, equally testamentary bonds. Suppose the testamentary system had provided for no other bond to be given by an executor, could there then have been a doubt, whether it was or not a testamentary bond, and can it be considered as having a different character imparted to it, by the mere circumstance, that there is another bond provided for, suited to a different state of things, or to the mere ordinary mode of administration. But it is strongly urged that assuming this to be a testamentary bond, it is not within the operation of the act of 1729, which is supposed to contemplate only the testamentary bond, then in use in this State, and not to embrace testamentary bonds of any other description. However ingeniously pressed, it is the opinion of this Court, that [**16]  the position contended for cannot be sustained. Statutes are sometimes extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter; on the principle that what is within the intention of the makers of a statute, is within the statute, though not within the letter; and that what is within the letter of a statute, but not within the intention of the makers, is not within the statute, it being an acknowledged rule in the construction of statutes, that the intention of the makers ought to be regarded. Viewing the bond in question as a testamentary 

 [*375]  bond, it is within the letter of the statute of 1729, which speaks in terms of "all actions upon administration and testamentary bonds." Suppose then, the legislators who passed that law, were now convened, and asked whether they intended that it should operate only upon the administration and testamentary bonds then in use, or that it should extend to any administration or testamentary bonds within the mischief intended to be provided for, that might at any time be required, or authorized by law, to be given? Can it be doubted what the answer would be,  [**17]  looking to the object of the legislature, which was the general repose and quiet of society, by protecting men from the vexatious prosecution of stale claims, supposed by length of time, to have been paid, but the evidences lost. Not a reason is to be assigned, why there should be a limitation of time to the bringing of suits, on the ordinary testamentary bonds, that does not apply with equal force to this. It is true, that such a bond as this was not at that time known, nor in common use, but the legislature had a right to create it, and it is equally true, that it is within the mischief intended to be remedied, that is the bringing of suits on testamentary and administration bonds, after a lapse of twelve years from their date, and also within the spirit of the act. And being within the spirit and reason, and letter of the act, and also within the mischief intended to be remedied, there is no rule of construction which excludes it from the operation of the act.
This view of the character of the bond, and of the operation upon it of the act of 1729, renders it unnecessary to enquire whether, if this was not a testamentary bond, the claim of the appellant would be barred by the act [**18]  of 1715.
JUDGMENT AFFIRMED.  

20 of 34 DOCUMENTS 

CHARLES WILSON vs. JOHN WILSON, Surviving Adm'r of JOHN WILSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 20; 1830 Md. LEXIS 44 

December, 1830, Decided 

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

This was a petition filed by Charles Wilson, on the 2nd August, 1828, as one of the distributees of John Wilson, late of Baltimore county deceased, claiming his proportion of the estate. It charged that John Wilson died on the 1st of January, 1819; that Michael Tiernan and William Murdock obtained letters ad colligendum upon the estate of the deceased, and received a large sum of money on account thereof; that on the 11th of August, 1819, John Wilson and Benjamin Sterett were appointed administrators, and had little other trouble than to receive the estate from and pass receipts to the collector, and obtain discharges from the representatives; that a much larger commission had been allowed the administrators than the services rendered by them were really worth; that is to say, 7 1/2 per cent. on $ 55,130, which with the allowance made to the collectors as commission, exceeds 10 per cent. for that object; that the petitioner also was entitled to interest on $ 4000 for four years, which remained in the hands of John Wilson the defendant; that the defendant was about to settle another account and claim a further commission upon [**2]  $ 8824 74, to which he is not entitled; because the whole of that sum was taken out in hardware by the petitioner, and that John Wilson had no trouble whatever, except in passing a receipt for the same. Prayer, that the defendant may discover what trouble he had in the settlement of the estate; that the commissions may be reduced, and Wilson charged with the amount disallowed in his next account; that he may settle another account, and for further relief, &c.

Copies of the accounts settled by the collector and administrators were filed with the petition, and which sustained the allegation of the amount of the commissions. The answer of John Wilson alleged, that by virtue of extraordinary diligence and perseverance on the part of the administrators, funds of large amount have been recovered from the collectors, and saved to the estate. That the collectors originally opposed the grant of letters, and shortly after their appointment collected $ 38,600, and appropriated the same to their private and individual use by investing the same in hardware and otherwise; that the collectors being applied to, refused or neglected to pay, and the administrators conceiving the estate in imminent [**3]  peril of being lost, proceedings at law were instituted, and a decree obtained against the collectors; and finding it impossible to get the money, they were obliged to take such means as the collectors had it in their power to give; that a large portion of the estate was received in hardware, part of which, one of the administrators sold in the western country, making himself liable to the estate therefor, and for another part they procured purchasers; that as to the money retained by the administrators, it was done with the approbation of the court and consent of all parties, to meet the contingencies of unsettled claims and proceedings against the debtors of the estate; that this defendant is willing to settle the estate so soon as the petitioner shall pay the sum of $ 2382 02, which he owes the estate, and has no objection that the court may diminish the commissions, if in their judgment just and equitable.

The evidence in the cause sustained the allegations of the defendant.

The Orphans Court decreed that the commissions allowed the administrators should not be reduced, nor the defendant charged with interest upon the sum retained by him; and that the defendant should [**4]  settle a final account.

The petitioner appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The allowance for commissions made to a collector under letters ad colligendum, granted upon a deceased person's estate, ought to have no effect upon the commissions of the executor or administrator of the same estate. They are distinct and independent allowances for different services.

The law having fixed a minimum and a maximum rate of commission to be allowed to executors or administrators, and vested a discretion in the Orphans Court restricted only by those limits, an allowance by that court, of commissions within those rates, is not to be reviewed here. This court has no power to disturb such a decision.

Interest is not to be charged on money retained by an administrator with the sanction of the Orphans Court and consent of parties, to meet the future contingencies of the estate.  

COUNSEL:
By Scott for the appellant, and Johnson for the appellee.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*22]  BUCHANAN, C. J., delivered the opinion of the court.
We do not think either of the points raised in this case can be sustained.
The 14th sect. of the act of 1798, ch. 101, sub-ch. 3, authorizes the issuing letters ad colligendum by the Orphans Courts of the several counties in the cases specified, and the 18th section authorizes an allowance to a collector for his whole trouble, of a commission on the amount of the property and debts actually collected and delivered to an executor or administrator, at the discretion of the court, not exceeding three per cent. And the 2nd section of the 10th sub-ch. authorizes the allowance to an executor or administrator of a commission at the discretion of the court, not under five nor more than ten per cent., on the amount of the inventory or inventories, excluding what is lost or has perished.
Here then were letters ad colligendum granted by the Baltimore county Orphans Court,  [**5]  and a commission of three per cent. allowed to the collectors, and letters of administration afterwards granted, and a commission allowed 

 [*23]  to the administrators of 7 1/2 per cent. on the amount received by them from the collectors and accounted for, amounting the two commissions together to 10 1/2 per cent. which it is supposed exceeded the commissions that the Orphans Court was authorized to allow, by one half per cent.; on the ground that the whole amount of commissions to be allowed, cannot exceed 10 per cent.
But it is perfectly clear that the allowance to be made of a commission to a collector, and that to an executor or administrator, are distinct and independent allowances.
The allowance to a collector is for his trouble, &c. which has nothing to do with the trouble or duties of executor or administrator; and the allowance to an executor or administrator is for his trouble and responsibility, for which no allowance made to a collector, can be any remuneration.
It is therefore no objection, that the commission allowed in this case to the collectors, and that allowed to the administrator, amount together, to more than 10 per cent. The restriction is, that [**6]  a collector shall not be allowed more than three, nor an executor or administrator more than 10 per cent.
But it is contended, that the commission of 7 1/2 per cent. to the administrator, is a greater allowance than ought to have been made.
The law has fixed a minimum of five, and a maximum rate of commission of ten per cent. to be allowed to executors and administrators, with a discretion vested in the Orphans Court restricted only by those limits, and the court in allowing a commission of 7 1/2 per cent. having acted within the scope of that discretion, we do not think we have any power to disturb the decision, or to review what has been done in that respect. The various circumstances determining the amount of the commission proper to be allowed, cannot appear to this court, and every case must be governed by its own peculiar circumstances, subject only to the restrictions already mentioned. But if the allowance of commission within the prescribed limits was a 

 [*24]  fit subject of appeal, there is nothing in the testimony accompanying the record, showing the allowance made to the administrators to be too great.
The claim to interest on the amount retained [**7]  by the administrators cannot be maintained; the money was retained with the consent of all the parties concerned, under the sanction of the Orphans Court, to meet the contingency of a suit with the collectors, which appeared to be a matter not unlikely to happen before the accounts should be finally closed. The decree is affirmed with costs.
DECREE AFFIRMED.  

21 of 34 DOCUMENTS 

KEPLINGER vs. GRIFFITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 296; 1830 Md. LEXIS 17 

June, 1830, Decided 

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

Assumpsit, by the holder, the second endorsee, against the maker of a promissory note, dated March the 10th, 1819, payable four months after date, for $ 188 87. The writ issued on the 31st of July, 1824. The declaration contained a count on the note, and for money had and received. The defendant pleaded--1st, non assumpsit. 2d, non assumpsit infra tres annos--and 3d, actio non, &c. to which issues were taken.

At the trial the plaintiff offered in evidence the following promissory note, with the several endorsements thereon. "$ 188 87 1/2. Baltimore, March 10th, 1819. Four months after date, I promise to pay to John Kiems, or order, the sum of one hundred and eighty-eight dollars and eighty-seven cents, for value received. Samuel Keplinger." (Endorsed) "Pay the contents to C. E. Chevalier, or order, John Kiems." "Pay the contents to Caleb Griffith, or order, C. E. Chevalier."

And further offered evidence that said note was forwarded to witness by the plaintiff, before it was at maturity, by whom it was placed in bank for collection. Said note, however, not being paid, witness afterwards called several times on defendant for payment,  [**2]  and was offered payment in goods, particularly steel watch chains, but witness having no authority to accept any thing in payment but money, declined taking them; the aforesaid transactions took place before the year 1821. Subsequently to this period, that is to say, a few days preceding the institution of this suit, the witness met the defendant in one of the streets of the city of Baltimore, and addressed him on the subject of the aforesaid note, when the defendant said he could not pay the said note; that Mr. Chevalier had charged him too much, and that some discount must be taken from the note, and that he must see Mr. Chevalier on the subject. Defendant, however, said he would think of it, and if witness would call at defendant's store in a few days, he would say more about it; that shortly afterwards witness did call, when defendant said he was going to Philadelphia in a few days, when he would see Mr. Chevalier; until then he could do nothing further. Upon the foregoing pleadings and testimony, the defendant moved the Court for their opinion and direction to the jury, that the plaintiff was not entitled to recover--Because, First. The making of the note in question by the defendant,  [**3]  and the several endorsements thereon, have not been duly proved on the part of the plaintiff, nor any evidence thereof given. Second. A new promise within three years before the commencement of this suit to pay the said note by the defendant, so as to remove the bar of limitations insisted on in his second and third pleas, has not been proved, nor any evidence thereof given. Third. No evidence has been given on the part of the plaintiff, that he did take, or offered to take any discount from the said note, or otherwise perform the condition on which the supposed new promise was made. Which opinion and direction the Court (HANSON, A. J.) refused to give, but were of opinion and so directed the jury, that if the jury believed the witness, the plaintiff was entitled to recover. The defendant excepted, and the verdict and judgment being against him, he appealed to this Court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where the agent of an endorsee, the holder of a promissory note, called upon the maker for the payment of the note, and the maker offered to pay the same in goods, which the agent declined receiving, having authority only to accept money, it is unnecessary in an action upon the note to prove either the hand writing of the maker or previous endorser; as the offer to pay the agent, amounted to an admission that every thing had been done necessary to the endorser's right to receive the money; that there was no objection to his paying the note, and superseded the necessity of further proof.

In an action by the endorsee against the maker of a promissory note, negotiated before maturity, evidence that a few days before the institution of the suit, the witness spoke to the defendant on the subject of the note, when the defendant said he could not pay it, that the payee of the note had charged him too much, that some discount must be taken from the note, and that he must see the payee on the subject; that, however, he would think of it, and if witness would call at his store in a few days, he would say more about it; that shortly after witness did call, when defendant said he was going to P, when he would see the payee, until then he could do nothing further, is a sufficient answer to the plea of limitations.  

COUNSEL:
Williams (District Atty. U. S.) for the appellant, contended, 1. That it was necessary to prove the hand writing of the several endorsers, as the endorsements were set out in the declaration. He insisted that there was no evidence of the hand writing of Chevalier, and none that defendant [**4]  had ever seen the note since he signed it. Although it might be admitted, that the declarations of the defendant, amount to an admission that the note was in the possession of Chevalier, there was no proof that he knew it to be in the hands of the plaintiff. When defendant promised to pay the note, he supposed that Chevalier was the holder, and therefore he cannot be understood, as admitting his endorsement. His promise can only conclude him, as to those facts, of which he had knowledge, and no further. On this point he cited 1 Camb. Rep. 100. Peak. Evid. 220. Sidford vs. Chambers, 2 Serg. and Low. 410. Smith vs. Chester, 1 Term. Rep. 654.

On the 2d and 3d points, he referred to Oliver vs. Gray, 1 Harr. and Gill, 214, 216, 218, 219. Wetzell vs. Bussard, 11 Wheat. 309, 310. Bell vs. Morrison, 1 Peters' Rep. 351. Roosevelt vs. Mark, 6 Johns. Ch. Rep. 290. Sands vs. Gelson, 15 Johns. Rep. 511. Sluby vs. Champlin, 4 Johns. Rep. 469. (note B.) Harrison's Index, 67. A'Court vs. Cross, 3 Bingham, 329. 2 Barn. and Ald. 759. 4 Maul. and Selw. 157. Short vs. M'Carthy, 3 Barn. and Ald. 626. Hellings vs. Shaw, 7 Taunt. 608. 2 Harr. Index, 925. 4 Bingham, 105. Ib. 303. 6 Barn. and Cres. 603.

Johnson,  [**5]  for the appellee.

1. The conversation which first took place between the witness, and the defendant, was certainly evidence for the jury, and if true, entitled the plaintiff to a verdict. A promise to pay a note after it is due, amounts to proof of every thing, which otherwise the party would be bound to prove. Jones vs. Morgan, 2 Camp. Rep. 474. Sidford vs. Chambers, 2 Serg. and Low. 410. Chitty on Bills, 410. (Ed. 1819.) Lundie vs. Robertson, 7 East. 231. 1 Wheat. Selw. 279. Saund. Plea. and Ev. 337. On the question of limitations, he referred to Oliver vs. Gray, 1 Harr. and Gill, 204.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*299]  BUCHANAN, Ch. J., delivered the opinion of the Court.
This suit was brought on a promissory note, given by the appellant to John Kiems, who endorsed it to C. E. Chevalier, by whom it was endorsed to the appellee, in a regular course of negotiation, before it was at maturity. The pleas of non assumpsit, non assumpsit infra tres annos, and actio non, &c. were put in, on which issues were taken. The Judge here, after referring to the evidence contained in the bill [**6]  of exceptions, stated, that upon the pleadings and testimony, 

 [*300]  the appellant moved the opinion and direction of the Court to the jury, that the appellee was not entitled to recover, on three grounds. First, that the making of the note by him, and the several endorsements thereon, had not been proved, nor any evidence thereof given. Second, that a new promise by the appellant, within three years before the commencement of the suit to pay the note, so as to remove the bar of limitations insisted on, in his second and third pleas, had not been proved, nor any evidence thereof given. Third, that no evidence had been given on the part of the appellee, that he took, or offered to take any discount from the note, or otherwise perform the condition, on which the supposed new promise was made. Neither of these objections to the right of the appellee to recover was sustained; but the Court before which the cause was tried, was of opinion, and so instructed the jury, that the appellee was entitled to recover, if they believed the witness; in which we concur with that Court. As to the first point, the suit was against the appellant as the maker of the note, the execution [**7]  of which, was a matter within his own knowledge; and surely his offer to pay it, when called upon after it became due, was sufficient evidence of his signature, a sufficient admission that he was the maker of it. The several endorsements by which it came to the hands of the appellee, being set out in the declaration, it became necessary at the trial to prove them; and as it is not to be supposed that the appellant would have paid it to any one, whom he did not know to be entitled to receive it, his offer to pay it to the agent of the appellee, was a sufficient admission of the endorsements, and of the appellee's right to receive it. It amounted to an admission, that every thing had been done, necessary to the appellee's right to receive it, and that there was no objection to his paying the note, and superseded the necessity for further proof. Sidford and another vs. Chambers, 2 Serg. and Lowb. 410. In Jones vs. Morgan, 2 Camp. 474, which was an action against the drawer of a bill of exchange, dishonored 

 [*301]  for non-payment after being accepted, it was decided that though it was unnecessary to have stated the acceptance in the declaration, yet [**8]  as it was stated it must be proved; but that a promise to pay after the bill became due, was a sufficient admission, as well of the acceptance, as of the hand writing of the defendant. The same principle will be found in Lundie vs. Robertson, 7 East 231.
As to the second point, in Oliver vs. Gray, 1 H. & G. 204, it was ruled by this Court, that an acknowledgment of the debt, with a naked refusal to pay, or a refusal accompanied with an excuse, for not paying it, which in itself implies an admission that the debt remains due, and furnishes no real objection to the payment of it, is sufficient to take a case out of the statute of limitations. Now this is just that case. The offer to pay the note, was not proved to have been made within three years before the bringing the suit; but the making of it by the appellant, and the several endorsements upon it, being established, his saying when spoken to on the subject, only a few days before the suit was instituted, "that he could not pay it, that Chevalier had charged him too much, and some discount must be taken from it; and that he must see Mr. Chevalier on the subject," was a clearly implied admission,  [**9]  that the debt remained due and unpaid, and the excuse alleged for not paying it, furnished no real objection to the payment of it, if true. The note came to the hands of the appellee by endorsement in a regular course of negotiation, and if the suit had been brought within three years, it would have been no defence to the action, that Chevalier had charged the appellant too much, for it would seem to have been given on account of some transaction with Chevalier; and the admitted continuing existence of the debt, carried with it the assumption raised by the law. And as to the third point, that the appellee had offered no evidence, that he took, or offered to take any discount from the note, it is answered by saying, that he was under no obligation to make any discount. The appellant was entitled to no discount 

 [*302]  as against him; nor against any body else, as far as appears, for there is no evidence in the record on the subject. And even if he could have been entitled to a deduction from the amount of the note, in a suit between him and Chevalier, there is no pretence for saying that the note was subject to the same deduction in the hands of the appellee.
JUDGMENT [**10]  AFFIRMED.  

22 of 34 DOCUMENTS 

ALLEGRE'S Adm'rs vs. THE MARYLAND INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 136; 1830 Md. LEXIS 4 

June, 1830, Decided 

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

This was an action of Covenant on a policy of insurance. It is the same case which was before the Court of Appeals at June Term, 1825, when the then judgment was reversed, and the record remitted to the Court below, with a writ of procedendo. 6 Harr. and Johns. 408. The death of the plaintiff below was suggested, and his administrators, (the now appellants,) made plaintiffs, &c.

1. At the new trial the plaintiffs offered in evidence the policy of insurance upon which this action was brought, entered into by the defendants, (the appellees) on the 23d of May, 1820. The sum subscribed to be insured, was $ 6000. The policy stated, that "whereas J. B. A. Allegre, for the concerned, doth make insurance, and cause himself to be insured, lost or not lost, at and from Rio de la Plata to Havana, with liberty of Martinico, upon all kinds of lawful goods and merchandises, laden, or to be laden on board the good brig called the Eugene, whereof     is master for this present voyage, or whosoever else should go for master in the said vessel. Beginning the adventure upon the said lawful goods and merchandises, from and immediately following the loading [**2]  thereof on board of said vessel, at Rio de la Plata aforesaid, and so shall continue and endure, until the said goods and merchandises shall be safely landed at     aforesaid, &c." The policy was in the usual form, the assured having paid after the rate of 5 per cent. for the assurance. There was a clause, that in case of loss, such loss to be paid in 90 days after proof, &c. And if any dispute should arise relating to a loss, it should be referred to two persons, &c. The second article of the memorandum at the foot of the policy, is, "if the above vessel, after a regular survey, shall be condemned for being unsound or rotten, the company shall not be bound to pay their subscription to this policy." The plaintiffs also gave in evidence, that the brig Eugenes ailed from Monte Video, on the river La Plata, on the 12th of July, 1820, for Havana, laden with 106 mules, and 4 jack asses, belonging to Charles A. Chalumeau, for whom the said insurance was effected; that the said brig was in all respects seaworthy; and that in the progress of her said voyage, she encountered tempestuous weather, by which she was much damaged, and the mules and jack asses all killed, except 10 mules; that [**3]  the said brig was compelled, by the damage aforesaid, and the violence of the winds and waves, to put into Rio de Janeiro, where she was duly and regularly surveyed, and ascertained to be unworthy of being repaired, and thereupon sold; and that the said remaining 10 mules were also thereupon sold; and further proved, that the insured thereupon duly abandoned the cargo aforesaid to the defendants. The plaintiffs also read in evidence by consent, the protest, and other documents. The protest was made and sworn to by the master, mate, and two of the seamen of the brig Eugene, before the Vice Consul of the United States of America, for the port of Rio de Janeiro, on the 19th of August, 1820, detailing minutely all the particulars of the shipment of the cargo on board the vessel, her sailing on the voyage, and the loss sustained. At the same time, before the said Vice Consul, the master called for regular surveys, by good and capable men, &c. Then follows a bill of lading, dated the 8th July, 1820, signed by the master of the brig Eugene, and by whom was shipped from Monte Video, and bound to Havana, 106 mules and 4 jack asses. Also an account of the sale of the brig Eugene, condemned,  [**4]  as unworthy of repairs. Also an account of sales of the cargo of the said brig. The plaintiffs further read in evidence sundry depositions of witnesses, taken and returned under a commission issued for that purpose from Baltimore County Court, to certain persons, named as commissioners, at Rio de Janeiro; but as the questions decided by the Court below do not seem to depend upon the testimony taken under the commission, which was as to the condition of the vessel on her arrival at Rio de Janeiro, and the injury she had sustained, and as to the survey made of the vessel, and whether she could not have been repaired, &c. it is omitted.

The defendants then read in evidence, by consent, the invoice of the cargo put on board the vessel, and an account of the charges and expenses incurred with the mules and asses, bought as a cargo for the brig Eugene, on account of Capt. C. A. Chalumeau, viz: 107 mules and 4 asses, which, with the expenses, &c. amounted to $ 795 50; which cargo remained on board on account of the above mentioned captain. Signed, Monte Video, the 3d June, 1820. The defendants also offered in evidence the following order for insurance, whereon the said policy was founded.  [**5]  "Baltimore, 23d May, 1820. Gentlemen,--Insurance is wanted for account of the concerned, at and from Rio de la Plata to Havana, with liberty of Martinico, on the cargo of the brig Eugene, Charles A. Chalumeau, master, valued at $ 6000. Said brig will sail from La Plata in the course of this month. What will be the premium? J. B. A. Allegre." "5 p. c." "Agreed, J. B. A. Allegre."

The defendants then prayed the court to direct the jury, that misrepresentation in a material fact, whether from fraud, mistake, or negligence, equally vitiates the contract, whether it be that of the insured, or his agents; that every representation respecting the time of the sailing of the ship is in law material; that the representation to the Maryland Insurance Company is positive that the ship will sail in May; and the plaintiff's intestate, having himself shown, that she did not sail till the 12th of July following; if the jury shall be of opinion that the danger of the voyage was increased by that circumstance in any degree, however small, and that the disclosure of that circumstance to the defendants was of a nature to have influenced their judgment in any degree, however small, either in taking,  [**6]  or declining the risk, or in enhancing the premium to however small an amount, this misrepresentation was a material one, which avoids the contract of insurance, and the plaintiffs are not entitled to recover on that policy; and the law is the same, although this misrepresentation on the part of the plaintiff's intestate might have been innocently made by him, in ignorance of the true state of the facts, that then the plaintiffs are not entitled to recover. Which opinion and direction the Court, [HANSON, A. J.] refused to give, unless the risk was materially increased by the vessel not sailing at the time represented; and with this qualification, gave the direction prayed for. The plaintiffs and defendants both excepted.

2. The defendants then called a witness, who stated that he was a merchant of long standing, and had been a member of some one of the insurance offices in Baltimore from their first establishment; and asked him whether, according to the usage and custom of insurance companies, the above order for insurance would be considered as covering live stock? To which question the plaintiffs objected. But the court overruled such objection, and permitted the question [**7]  to be asked. The plaintiffs excepted.

3. The plaintiffs then offered in evidence, that mules and jack asses, in 1820, and for many years before, were a common article of commerce and export from the river La Plata. That they were, during the times aforesaid, the chief articles of commerce between the river La Plata and Martinico; and that there was a trade in mules in 1820, from La Plata to the West Indies generally. The witness stated, that he knew nothing of the commerce in mules between La Plata and Havana particularly, except from his personal knowledge, which is confined to the following cases: He was at the river La Plata in March, 1820, and saw a vessel sail from that river loaded with mules, and saw her afterwards arrive at Havana--it was the British brig Palmyra. He believes her tonnage to be about 220 to 230 tons. She sailed with 170 to 180 mules, and arrived with only 33 alive, 4 or 5 of which died after she arrived. He saw another vessel, an American vessel, sail from the river La Plata with 180 or 190 mules, bound for Havana. The witness understood her destination from her captain. The witness understood that he afterwards put into Charleston in distress, and never [**8]  arrived at Havana. The mules on board the Palmyra were stowed in two rows on the upper and lower decks. Enseanado, on the river La Plata, is the principal port for exporting mules. All mules from Buenos Ayres are embarked at Enseanado. More vessels, while the witness was at Enseanado, loaded with jerked beef and tallow, than mules; but the vessels for the West Indies loaded principally with mules. The witness was at Enseanado and Buenos Ayres, from March to July, 1820. The plaintiffs also offered in evidence, by another witness, that he was in the river La Plata in 1822, and that he understood that there was a trade in mules from the river La Plata to the West Indies generally, and principally to the Windward Islands; but has no knowledge of such a trade to Havana particularly. He, himself, carried a cargo of jerked beef from Monte Video to Havana. He knows of no instance of a cargo of mules from the river La Plata to Havana. But there might have been vessels loaded at Enseanado, about 18 miles below Buenos Ayres, which is the principal mule port on the river La Plata. The witness was not at Enseanado. They also offered in evidence, that mules sold in Martinico at $ 120, and that mules [**9]  from the Maine sold at Jamaica at from $ 75 to $ 160--averaging $ 130, previously to the introduction of steam mills. That the mules from the Maine are much smaller than those from the river La Plata.

The defendants then offered to prove, by the testimony of William Patterson, who had been engaged in trade and commerce as a merchant in the city of Baltimore, and also as a director in one of the insurance companies established there, that a general policy on cargo does not embrace a cargo of live stock, or animals, according to the mercantile understanding and interpretation of such a policy in the city of Baltimore, and that when live stock or animals are meant to be insured, they are always insured by name, and that a much higher premium is asked than for an ordinary cargo of merchandize. The insurers consider a cargo of live stock more dangerous than an ordinary dead cargo, and would charge a higher premium for the former, than the latter. And upon looking at the order for insurance in the present case, he said that he would not consider it as an application to insure live stock or mules; and he believes it would be the general mercantile understanding of the construction of [**10]  such order, that it did not embrace a cargo of live animals. They also offered to prove by Daniel Howland, another witness, who had been president of an insurance company, and a director for more than twenty years, and a commander of a vessel for many years previous, that there is a difference between ordinary cargoes and those of live stock or mules, in the price of transportation, and that the latter are considered the most dangerous. The insurers would make a difference in the premium they would ask, for the insuring the one or the other of such cargoes. He also proved, that in his own opinion the order in this case would be considered, as intended only to cover ordinary cargoes, and not live stock or animals; and that he believed such would be the understanding and usage of underwriters, and others engaged in insurance, of the sense and meaning of the terms used in the said order. They further offered to prove by David Winchester, another witness, who had been a president and director of an insurance company in Baltimore upwards of 25 years, that the order of insurance in this case would not, in the judgment of underwriters, and others engaged in effecting insurances, be considered [**11]  as covering a cargo of live stock or mules. That the words therein used, have acquired an appropriate sense between insurer and assured, by which they are understood to apply to a cargo not attended with any extraordinary perils, and are not understood to apply to live stock or mules; and that the premium which would be asked for insuring a cargo of mules would be higher, than for insuring an ordinary dead or inanimate cargo. They also offered to prove by Hugh Birckhead, a director of one of the insurance companies in Baltimore, that the order for insurance in this case, according to the general understanding among insurers, and others, in Baltimore, would not be considered as an offer to insure mules and jack asses; that the difference between a cargo of live stock and dead goods is so great, that he should consider it the duty of the insured to state the fact that live stock was intended to be covered, in order to put the insurer and insured on an equal footing; and that the difference of premium on the insurance of those two kinds of cargo was considerable. They also offered to prove by Henry Thompson, long a director in an insurance company in Baltimore, and extensively engaged [**12]  in commerce, that live stock is always considered by underwriters as a more dangerous cargo than dead goods; and the premium of insurance is much higher for insuring live stock, than dead cargo; and that such an order would not, in his opinion, be considered as an order for live stock. That according to the usage of merchants and insurers, the danger of a vessel, in the transportation of mules and live stock, is greater than that of a vessel employed in carrying a cargo of dead goods; and that the premium would be enhanced on a vessel carrying mules and jack asses; which fact the defendants also proved by the testimony of the said Daniel Howland, David Winchester, and William Patterson.

The plaintiffs then offered in evidence, by competent witnesses, long acquainted with insurance business, and with the usages of trade and mercantile understanding in matters of commerce, that there was no usage of trade or mercantile understanding which excluded mules and jack asses from the general term of cargo, used in an order for insurance, or otherwise; and that there was no usage of trade or general mercantile understanding in Baltimore, or general understanding among the insurers in Baltimore,  [**13]  by which live stock, or mules and jack asses, would not be considered as covered by a general insurance on cargo. They also offered in evidence, that the term cargo in the aforesaid order for insurance, would, according to the mercantile understanding and usage of trade, among the insurers and merchants of Baltimore, be considered as covering mules and jack asses. They further offered in evidence, that a cargo of mules and jack asses is not a more hazardous cargo for insurance than any common cargo; and that a cargo of mules does not increase the risk of the vessel.

The plaintiffs then prayed the court to direct the jury--1st. That if the jury find from the evidence that in the year 1820, and for some years before, mules and jack asses were well known articles of exportation from Rio de la Plata, and that cargoes of them were about that time usually exported, and had been for some years before, usually exported from that river, then the omission of the said Allegre to state to the underwriters, before, or at the time of making the said insurance, that the said cargo was to be a cargo of mules and jack asses, is not such a concealment as will vitiate the policy, on which this suit [**14]  is brought; unless the jury shall find from the evidence, that according to the known and established usage of trade in the city of Baltimore, the order in question was construed and understood not to comprehend mules and jack asses in the cargo therein mentioned. 2d. If the jury find from the evidence, that mules and jack asses, in the year 1820, and for several years before, were usual articles of exportation from Rio de la Plata to Martinico, then the omission of the said Allegre to represent to the underwriters that the cargo, mentioned in the said order for insurance, was a cargo of mules and jack asses, is not such a concealment as will vitiate the said policy; unless the jury find from the evidence, that according to mercantile usage and understanding in the city of Baltimore, the word cargo in the said order did not comprehend mules and jack asses. Which directions, and each of them, the court [HANSON, A. J.] refused to give; but gave the following opinion and direction to the jury: An usage of trade must be definite, uniform, certain, sufficiently long established, and so generally known, as to warrant the conclusion that the parties contracted in reference to it. This is [**15]  necessary, in order to be obligatory on either party. First--There is no usage proved that the word cargo necessarily, in mercantile understanding, either excludes live stock, or that it includes it; nor of an usage that a greater premium would be charged on an insurance on mules, than on a dead cargo. Secondly. There is no evidence of an usage in trade of mules from the river La Plata to Havana. There is evidence that the only trade from La Plata to Martinique is in live stock; and if the voyage insured was from that river to Martinique, and no further, the policy would be good--the underwriters being bound to know the trade as one of an established usage. But the terminus of the voyage was the Havana; and no usage of trade in mules to that place from the river La Plata being proved, the underwriters were not bound to know it, from the circumstance of liberty to Martinique being stipulated in the policy, and consequently, not bound to inquire about the specific nature of the cargo. The insured, therefore, was guilty of a concealment fatal to the policy, provided the jury believe, that the risk was materially increased by the cargo being of mules, instead of a dead cargo. We say materially,  [**16]  because if all of a cargo was a dead one, yet from the different qualities of articles of commerce, one commodity must be, in some degree, always more hazardous than another. A cargo of buoyant articles would not abstract the attention of the crew in a storm from the navigation of the vessel, whereas the necessity of throwing over a heavy cargo, for the purpose of lightening the vessel, might; but such a slight difference in the risk would not vitiate the policy; because contracts of insurance, being contracts of indemnity, are to be construed liberally, in order to get at the true equitable intentions of the parties, and are not to be settled according to the very letter of the contract, and rendered void because the cargo shipped was different from the one appearing on the face of the policy, technically construed, provided all things were done in good faith, and the situation of the parties not essentially changed, by a cargo being mules, instead of a dead cargo, even if no usage of such trade existed; unless the risk was thereby materially increased; and this is the only question open to the jury, which they must decide from the evidence they have heard at the bar. The plaintiffs [**17]  excepted; and the verdict and judgment being against them, they appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Orders for, and contracts of insurance are to be liberally construed, and with reference not only to the situation and circumstances of the subject matter of insurance, but also of the parties by whom the insurance is effected.

So an application for insurance from Rio de la Plata to Havana, which stated "said vessel will sail from La Plata in the course of this month," made by a merchant in Baltimore, to an insurance company there, is not to be regarded as a technical representation of the time of the vessel's departure, but as a statement merely of the belief, or opinion of the applicant, that she would sail at the time mentioned.

In an action on a policy of insurance, the question, whether the risk has been materially increased by the sailing of the vessel on her voyage, at one time, instead of another, ought not to be submitted to the jury, when no testimony whatever had been adduced on the subject, to warrant the jury in drawing such a conclusion.

It is competent to offer evidence, whether, according to the custom and usage of insurance companies, the word cargo, in an order for insurance, would be considered as covering live stock.

A policy on cargo, or goods and merchandize, will not cover articles which are stowed upon deck.

The word cargo, in an order for insurance, does not, ordinarily, cover live stock; but if live stock constitute the only article of exportation from the port from which the vessel carrying the insured property is to sail, to the port to which she is destined; or if, according to the mercantile usage of the place of effecting the insurance, the word cargo is understood to cover live stock, then an insurance under that general denomination, will cover live stock.

The existence of such usage, when evidence is offered for and against it, is a question exclusively for the jury.

Uniformity of decision among the several States of the Union, on questions connected with contracts of insurance, is of vast importance to the mercantile community; and that consideration alone, in the absence of all motive or obligation to embrace a contrary doctrine, should induce the sanction of principles established in the other States.  

COUNSEL:
Mayer, for the appellants, contended upon the first exception, that the order does not contain a positive representation in law, that the vessel would sail in May, but must be understood by the Court, as expressing only a calculation or belief, that the vessel would then sail. Upon the second exception he contended, 1. That the evidence of a usage of insurance companies, being but of a particular portion of the commercial community, was inadmissible. 2. That evidence of such a usage, even of the mercantile community at large, would have been inadmissible. Upon the third exception, he said, 1st. The words "cargo, and lawful goods and merchandize," legally comprehended the mules and jack asses, if proved to be articles of commerce. 2. That there was evidence of their being articles of common export and commerce from Rio de la Plata; and that the underwriters were bound to know they might be embraced by the word "cargo," in the order, and must be considered as embraced in the words of the policy, "lawful goods and merchandize." 3. That the [**18]  vessel having, by the words "liberty of Martinico," the right of trading at Martinico, and there being evidence of mules being the only articles of trade from the river La Plata to that island, the insurance covers the cargo in question, although not specifically made known to the underwriters by the assured. 4. That the opinion and direction of the Court, under the third exception, is, in other respects, erroneous. 1. There was no representation, either in a real or technical sense, that the vessel would sail in May. As the agent of the assured and the underwriters stood, the agent could not be understood as stipulating that the vessel would sail in May; he did not say he would warrant her doing so. A party may be so situated, that his language cannot be understood in a literal sense. Hubbell vs. Glover, 3 Campb. 313. Bowden vs. Vaughan, 10 East. 415. Bryan vs. Featherstone, 4 Taunt. 869. Barber vs. Fletcher, Dowg. 306. A representation is never looked upon as a part of the policy, and does not affect it, except in cases of fraud. The insured need not prove the truth of all his representations; the underwriter must show that he has been deceived. Philips on Insurance, 84. 2. It is [**19]  right that the contracts of parties should be affected by the usage of trade, because it applies to both, but that is not like suffering insurance companies to interpret their own contracts. 2 Stark. Ev. 448, 449, 450, 451. 3. It was sufficient for us to show that goods and merchandize include all articles of trade, and that mules and jack asses are articles of trade. The question is not as to the variance of the risk, because if that was material, then the least variance would be as fatal as the greatest. The prayer in the third exception, was on the ground that there was evidence of the usage of trade, and as there was evidence, it was for the jury to say whether the usage we contend for was proved. The usage attempted to be proved was, that mules and jack asses are included in the term cargo. The sense of terms may be enlarged in policies of insurance. 1 Marshall, 474, 475, 93, 323. Philips on Insurance, 66, 89. The only circumstances which the assured are bound to disclose, are those which may be supposed to be in his peculiar knowledge. When the offer for insurance is ambiguous, the underwriter is bound to ask an explanation; and if he does not, the construction most against him [**20]  shall be adopted. Livingston and Gilchrist vs. Maryland Insurance Company, 7 Cranch, 535. McLanahan vs. The Universal Insurance Company 1 Peters S. C. R. 187. There can be no concealment except as to a collateral fact. Philips on Insurance, 80. Boyd vs. Dubois, 3 Campb. 133. It is not necessary to give information as to political events, or whether the articles are contraband of war. Skidmore vs. Desdoity, 2 Johns. Cas. 77. Duguet vs. Rhinelander, 1b. 476. Seton and Co. vs. Low, 1 Johns. Cas. 1. Richardson et al. vs. Maine Insurance Company, 6 Mass. Rep. 102. Philips, 89, 90, 102, 108. There is in this policy a memorandum of excepted articles, and therefore no other article is presumed to be excepted to. Insurance for whom it may concern, will cover all interest. Buck and Hedrick vs. Chesapeake Insurance Company, 1 Peters S. C. R. 151.

Meredith, for the appellee. The first question is, whether the representation in this case is such as to be binding on the parties; its materiality has been decided by the jury. A representation is the affirmation or denial of a fact. Philips, 84. The order for insurance says, that the brig will sail from La Plata in the month of May. There is a [**21]  distinction as to the representations made by the owner of the goods, and the owner of the ship. Hubbard vs. Glover, 3 Campb. 312. Representations which must be founded on expectation or calculation are not binding, but parties are held to the truth of positive statements. Dennistown et al. vs. Lillie and al. 3 Bligh's P. R. 202. A representation and a warranty differ in this, that the former does not affect the contract, unless it be of a material fact; but a warranty, if false, destroys the contract. The case of Bryan vs. Featherstone, 4 Taunt. 869, was merely the expression of an opinion. There are two prayers in the 3d exception; the difference between them is, that in the one, the course of trade from La Plata, generally, is relied on; and in the other, from La Plata to Martinico. Does the legal signification of the word "cargo," include live animals? If it does not, can the course of trade be resorted to, to control the legal sense of the term?

It is admitted, that as a general rule, it is not necessary to describe the cargo, but live animals are the subjects of a special insurance. Bottomry and Respondentia interests, are not included in the term cargo. Glover vs. Black,  [**22]  3 Burr. 1394. 1 Marsh, 318. There are many articles properly termed goods, which are not comprehended under the general terms goods, wares, and merchandize, in the policy. Brough and Wetmore, 4 Term Rep. 206. 1 Marsh, 320. Articles clearly included in the term goods, are not covered by the policy, if exposed from their situation, to peculiar perils. 1 Marsh, 320. Lenox vs. United Ins. Co. 3 Johns. Cas. 178. 1 Caines, 44. Those articles which from their nature are subject to detriment or diminution in value, are not to be considered as insured against, unless the insurer knows of them. 3 Kent's Com. 247. French Com. Code, 213. A cargo of living animals must, necessarily, be in more danger than a dead cargo. Woolcot, et al. vs. Eagle Insurance Company, 4 Pick Rep. 429. In all the cases in the English books, insurance upon living animals was always effected, eo nomine. Is an underwriter to be presumed to enter into his contract with reference to the course of trade? According to the signification of the term cargo, the property in this case would be excluded; it could not here have been the intention of the party to insure a cargo of this description.

The policy was an open one for [**23]  $ 6000, and the first cost of the mules, &c. was less than $ 600. You are not to look at the value of the cargo at the place of destination, but to the selling price at the place of shipment, in an open policy. 3 Kent's Com. 221. Carson and Smith vs. Marine Ins. Co. 2 Wash. Cir. Court Rep. 468. Asking for insurance for $ 6000, is evidence that no such cargo was contemplated, because, instead of one, it would load 16 or 17 vessels. Is there any evidence of a course of trade which can extend the meaning of the term cargo?

The proof is, that according to the usage in Baltimore among underwriters, the word cargo does not include living animals, and the contract in this case was between a Baltimore office, and the plaintiff's agent, living in Baltimore.

Evidence that mules, &c. with other articles, were exported generally from La Plata, cannot affect a particular policy of insurance. In this case but two instances are proved of shipments of such articles from La Plata to Havana, and these cannot establish a usage. 1 Marsh, 186. A liberty to touch, does not justify trading at all events, if delay is created. United States vs. Paul Shearman, 1 Peters Cir. Court Rep. 98. It is not [**24]  material what was the course of trade from the river La Plata to Martinico, the intermediate port, because the course of trade, between the port of departure and the intermediate port, is never looked to. No usage of trade has been proved in this case, which can be binding: to be binding, the usage must be exclusive, definite, uniform, and well known. Philips, 18, 16. 1 Marshall, 186, 320. Park, 303, 304, 305. Parker and others vs. Jones, 13 Mass. Rep. 173. The trade in mules and jack asses, not being exclusive, could not have been in the contemplation of the underwriters. The Court below said no usage was proved to include or exclude this cargo. Where Courts have put a construction on the terms of a contract, no evidence of usage giving a different construction can be received; but no such construction as has been contended for has been put by the Courts.

Wirt, also for appellee. We insist on two propositions. 1. If there is in the record any thing which is fatal to the plaintiff's recovery, errors by the Court below, in other respects, will not induce this Court to order a procedendo. Turnpike Co. vs. Barnes, 6 Harr. and Johns. 61. 2. The appellant cannot take advantage of errors,  [**25]  unless they be to his prejudice. The question in the first exception is as to the effect of the representation. The prayer of the defendant is, that there was a representation as to the time of sailing, and the Court say, that if the variance between the actual sailing of the vessel, and the time mentioned in the offer for insurance, materially increased the risk, then it avoided the policy.

The appellant contends, that this was not a representation; but every positive statement as to the time of sailing, is a material representation. 1 Marshall, 463. And every material representation, either by the assured or his agent, which is not true, destroys the policy. 1 Marshall, 457. We admit that the statement of the time of sailing, must be positive, and not expressed as mere matter of belief, but we insist in this case, that the statement was positive, and is therefore binding. 1 Marshall, 454. If the broker or agent make the statement as matter of belief, or expectation, the underwriter is bound to inquire, but not when the statement is positive. It is contended here, however, that although the terms used were positive, (and that is admitted) yet as the condition of the party was [**26]  such that he could not know certainly the truth of his statement, he must be considered as merely affirming his belief. We have a right to suppose that the statement made by the agent was made by the authority of Chalumeau, the principal, who was the master of the ship. It is immaterial whether the party making the statement knows the fact or not; if it be a material fact, and he undertake to speak positively, he is answerable for its truth. 1 Marshall, 456. And it is the same whether the representation is made by agent or principal. 1 Marshall, 457. Fitzherbert vs. Mather, 1 Term Rep. 12. If it be true, that the statement of the time of a ship's sailing, (being abroad) is to be considered as the representation of belief, then it follows that a ship abroad cannot be insured at all. In Doug. 247, Lord Mansfield speaks of the importance of accuracy in regard to a ship's sailing. In reference to the position that a representation of this character is to be treated as the expression of an opinion, he referred to 3 Bligh's Par. Rep. 202. 3 Campb. 312, 313, cited on the other side, was a statement, not as to time of sailing, but the representation there, was as to the risks being a summer [**27]  or winter risk. The positive statement which was not true, was, that a cargo was ready. The Court in that case say, that the time of sailing was the only fact which the party could be presumed to know. The fact that a cargo is ready, is not a fact which the party is bound to know, but he is bound to know whether the ship has sailed or not. The case of Bowden vs. Vaughan, 10 East. 415, was the case of a representation made by the owner of the goods, who had no control over the sailing of the ship.

In the case before the Court, the representation was made by both the owner of the goods, and master of the ship, and therefore is binding. Park, 284. The case in Bligh seems to condemn the decision in 10 East, 415, because in Bligh the policy was on ship and cargo, and the house of lords might, if they had approved of the case in East, have decided the policy to be good as respected the owner of the goods, who had no control over the ship, and bad as regarded the ship owner.

The case in 4 Taunton, 869, was a representation made to a subsequent underwriter, and there was nothing said as to the time the ship would sail, nor positively where she was; it was merely said that she was [**28]  in one of three situations. In Barber vs. Fletcher, Douglass, 306, the word expected is used. The jury in this case having decided the representation to be material, there is an insuperable bar to the recovery of the plaintiff, should it be sent back. Parol proof may be resorted to, to explain technical terms used among merchants, unless an interpretation has been assigned them by the Courts. 2 Stark. 455. Allegre vs. The Maryland Insurance Company, 6 Harr. and Johns. 410, 411. Suppose it could be shown that among insurance companies the word cargo is never understood as including living animals; could not proof be admitted to prove the understanding? It is objected, however, that the evidence was admitted to restrain the ordinary import of the term cargo, which it is said cannot be done, though proof would be admissible to enlarge it. But is this position true? the proof went neither to enlarge nor limit the sense of the term, but simply to give it its technical meaning; and this may be done. 1 Phillips' Ev. 490. Phil. on Ins. 18. The only difference between the plaintiff's two prayers in this exception is, that in the first, the termination of the voyage is not, and in the second [**29]  it is, given.

The question of usage, is a question of law, and for the Court. 2 Stark. Ev. 452. The usage must be reasonable, and is to be decided by the Court, as in respect to notice of protest of bills of exchange. But the instruction that there was no usage, was advantageous to the appellants, and therefore they cannot object to it. The plaintiff did not put his prayer upon the ground that there was, or was not an usage, but that there was a trade in such animals from La Plata, and this the Court did not deny. The Court said there must be a material increase of risk to require a disclosure, and in this they were right. It is not important that every part of the opinion should be sound, if the general result is right: if the word cargo, does not include live stock, then the judge was right; if it does, he was wrong, and his judgment must be reversed. Does the word include live stock? goods lashed upon the deck are cargo, yet they are excluded from the policy, because they are exposed to an increased risk. Unless specified, they are excluded upon that ground, and this shows that the universality of the meaning of the word cargo, contended for, cannot be maintained. No case can [**30]  be found in which the word cargo has been decided to include dead and living animals. Marshall, 93, cited on the other side, merely says, that slaves were formerly insured as merchandize: he gives no case, professes to give none, nor does he say what information must be given to the underwriter, nor what sort of an order was required. The authorities show, that live stock must always be insured, specifically and nominatim. Woolcot, et al. vs. Eagle Insurance Company, 4 Pick. 433. The distinction is not between different descriptions of dead cargo, but between dead and living cargo, and this case demonstrates the importance of the distinction. The condition of the animals in the storm, and the attention necessarily given them by the crew, shows how much more danger there is in a cargo of this sort. This is a new question, and therefore you may look to the reason of the thing: is it not most reasonable that parties should be bound to disclose the nature of the cargo, when it is one of this description? From Enseanado, there is a trade exclusively in mules, and here the party was careful not to speak of that port, but spoke of the La Plata, where there is a mixed trade. As there is a [**31]  trade in other things from La Plata, will the Court exclude living animals? The termini of the voyage is always in the contemplation of the underwriter; and as between the La Plata and the Havana there is no such trade in living animals, as could induce him to look to a cargo of this description.

Taney, (Attorney General) in reply.

The first question is, was the representation in the offer for insurance, a statement of a fact, or merely the expression of an opinion. There is no evidence of improper motives on the part of Allegre. We contend, that it was no representation of a fact, according to the insurance law, but simply the statement of an expectation. The letter from Allegre to the office, is dated May 23d, 1820, and says the brig will sail in the course of the month. The underwriters could not have believed that Allegre had any pointed information on the subject. You do not, in construing a representation, always understand parties according to the literal meaning of the terms employed; you must look to their situation; the means of information they possess, and the subject matter about which they are speaking: and these things considered, Allegre could only be understood [**32]  as stating an expectation. Was the insurance office misled? for if it was not, then there is an end of the question. He was speaking of a future event, and not a past one. When a party speaks of an event of which he may, or may not have knowledge, then, whether he state a fact, or express an opinion, will depend on the terms employed. Not so in regard to a fact of which he cannot have knowledge. 1 Marshall, 444, 455. For the definition of a representation, he referred to Livingston and Gilchrist vs. Maryland Ins. Co. 7 Cranch, 536. When a party speaks of a future event, he necessarily speaks of a belief, founded on facts, and cannot be understood as asserting a fact. In the case in Blye, the letter to the underwriter was written on the 18th of June, and stated that the vessel was to sail on the 1st of May; the letter, therefore, was written 49 days after the sailing was to have taken place. The argument in 3 Blye, 208, puts it on the ground that she was a missing ship. It was not a representation that she would sail on a given day, but that she should be kept in port until the day. She did not sail after, but before, the day mentioned. It was in the power of the party to keep the vessel [**33]  in port as long as he pleased, and therefore is not like a representation that she is to sail on a particular day. Over the one event he has a control, but not over the other; saying that she was in port on the 1st of May, was representing her then to be in safety; if she had not sailed until the 1st of May, the 49 days would not have elapsed, and she would not have been a missing ship. Whether the time be material or not, is a fact for the jury. McLanahan vs. The Universal Ins. Co. 1 Peters S. C. R. 187, 188, 189. The case in 3 Campbell, 312, was an insurance on the ship, and therefore the distinction between the owner of the vessel and cargo, does not apply to this case. The assertion in that case was, that a cargo was ready, and it was equally as positive as the statement in this case, yet the Court say it was merely the statement of an opinion. In Rice and others vs. The New England Insurance Company, 4 Pick. 439, the letter of the agent stated, that he expected the vessel to sail on a particular day, and it was charged and proved, that he did not truly represent the facts upon which his expectation was bottomed. By his statement to the underwriters, he induced them to believe [**34]  the vessel was in time, which the agent had reason to think was not the case. In Whitney and al. vs. Havener, 13 Mass. Rep. 172, the representation was, that the vessel would sail in five days from the date of the policy; yet the Court say it is not binding. The day of sailing is seldom material, and if the underwriter thinks so, why does he not ask for a warranty, as in most other cases. If the vessel sail before the time, it may be material, because then, as in the case in Bligh, she may be a missing ship at the time the insurance is effected, but her sailing after, cannot have that effect. It cannot be inferred, from the record, that the jury found the representation in this case to be material, as is said on the other side. Two questions were left to the jury, and the Court cannot know which they found for the defendant; both were material, and if either was found for defendant, the verdict must be in his favor. In 6 Harr. and Johns. 410, the judgment was affirmed; if the judgment is reversed, the party under the Act of Assembly, is entitled to a procedendo, ex debito justicia. In the 2d exception, the question is, not upon the admissibility of evidence of usage; but the point [**35]  is upon the question asked. The question in 6 Harr. and Johns. 410, was not whether usage could be proved, but whether the proper kind of proof was offered. Usages may be proved by acts, but not by opinions. The attempt to prove the usage here, was by the opinions of witnesses. Usages which are not matters of law, cannot be established by the opinions of witnesses. 2 Stark. Ev. 449, 452, 453. The usage of the underwriters, unless generally known, or known to the agent of the assured, is not binding. McGregor vs. Insurance Company of Pennsylvania, 1 Wash. Cir. Court Rep. 39. Cox's Dig. 385, pla. 159. In the case of Raborg vs. The Bank of Columbia, 1 Harr. and Gill, 231, and the other cases, the usage was proved by acts, and not by opinions.

Did the omission to disclose that the cargo was of living animals, vitiate the policy? What is the policy? and what was the situation of the assured and the underwriter? Chalumeau, the owner and captain, was in La Plata, and when he requested his agent in Baltimore to effect insurance for him, might not have known what sort of cargo he would ship. He might have intended to purchase other articles; how then could he insure, except by the word [**36]  cargo. He could not make a special insurance, because he knew not what articles he should buy. If the agent had insured mules, or other property, specifically, and he had shipped other articles, he would have lost his insurance. The underwriters were bound to know the articles of trade in the river La Plata, and to regulate their premium accordingly. The use of the general term "cargo," was notice to them. Mules and asses are exported from La Plata to the Havana, the port of destination, and particularly to Martinico, one of the points named. To say that a man in such circumstances shall specify his cargo, is to say he shall not insure at all, or to compel him to make up his mind as to what he shall ship, before he wishes to do so: such was the situation of the parties. Now let us look at the policy. The point of destination is left blank, for the very purpose of giving to the party a discretion to go to Martinico, or the Havana. From La Plata to Martinico, the great subjects of commerce are mules and jack asses: we say the term cargo embraces such subjects. If they are embraced, it is incumbent on the other side to show a usage, excluding them. They attempted to prove it, and failed,  [**37]  there being proof on both sides: if there is any usage restraining the meaning of the word, they ought to have shown it. That the word cargo includes living animals, see 1 Marshall, 93, note (a) Martin vs. Delaware Insurance Company, 2 Wash. Cir. Court Rep. 255. We admit that respondentia and bottomry interests are not insured as cargo, because they are not in fact cargo. They are not laden on board the ship. 3 Kent's Com. 247. The first answer to the decisions, that goods lashed on deck are not covered by the policy is, that the property in this case was not lashed on deck; and the second is, that goods so exposed, are not excluded from the policy, upon the ground that they are not cargo, but because in that situation, they are liable to unusual perils. They must show that goods on deck are not cargo, and that the mules, &c. were on deck, before those decisions will apply. In 11 Petersdorff, 377, the goods were on deck, notwithstanding which they were considered cargo, and covered by the policy. A party is not bound to state the condition of his goods, and of course not their character. Boyd vs. Dubois, 3 Camp. 133. The question then is, if mules are cargo, was it the duty of the [**38]  party to disclose it. The case in 4 Pick. 429, relied on by the appellee, was decided without the authority of a single American or English case. Although certainly respectable, it is not authority eo nomine. The reasoning of the Court is the additional peril. Can this Court base its opinion on such a ground? It would be undoing all that has been done up to the present time. In Buck and Hedrick vs. The Chesapeake Insurance Company, 1 Peter's S. C. Rep. 151, the insurance was for whom it might concern; and there the policy was made to cover belligerent property, because the Court say the use of those words was an awakening circumstance: so here, the word "cargo" ought to have put the underwriter on his guard. The decision in 2 Johns. Cas. 77, shows that the difference of risk is unimportant, whether it proceeds from danger of capture, or any other cause. The principle of the decision in 4 Pick. 429, cannot, therefore, be the true one. In 3 Camp. 133, damaged hay was put on board, which was liable to effervesce; yet the Court said the assured was not bound to disclose the fact. The answer to the case in 13 Mass. Rep. 173, cited on the other side, for the position that we should have [**39]  proved an exclusive trade in mules, is, that the word "cargo" includes the property, and the other party should have shown an usage, excepting them. The error of the Court below, was in confounding the usage of trading in particular articles, with the laws regulating commerce. If the Court are right in saying there must be a long and uniform usage, then there can be no policy on new articles of trade. What would have become of the first policies on gunpowder, fruit, and other perishable articles. We consider the policy a valued one, for $ 6000. It is the amount named in it; and there is no principle which says that parties may not put what value they please on the cargo. Phil. on Ins. 310.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*159]  DORSEY, J. delivered the opinion of the Court.
The first exception presents the question, does that part of the order for insurance, which speaks of the time of the sailing of the Eugene, amount to a representation? The inquiry is simply this; is Allegre to be understood as asserting a fact or expressing an expectation or belief, founded on facts of which he had knowledge? Give to this order [**40]  a literal interpretation, and it may well be regarded as the assurance or statement of the fact, that the brig would sail some time during the month of May. But instruments or contracts of this kind are to be liberally construed, and with reference not only to the situation and circumstances of the subject matter of insurance, but also of the parties by whom the insurance is effected. There is nothing in the proof, presented by the record in this cause, to shew that the risk would have been increased by the departure of the vessel in July, instead of May. Had it been so regarded by the underwriters, it is probable that the time of sailing, would have formed one of the stipulations in the policy. In the absence then of any inducement to make a representation of such a character as that insisted on by the appellees: when too, the distance of the port of departure from the place of insurance, was so great as to render it most improbable, if not morally impossible, that the assured could know the precise time of sailing, would it not be more rational, more equitable, to regard the expressions of the insured, rather as the emphatic, confident statement of 

 [*160]  a matter of opinion [**41]  or calculation, than as a representation in its technical sense. If this order for insurance under the circumstances in which it was drawn, will bear two interpretations, according to the case of Livingston and Gilchrist vs. The Maryland Insurance Company, 7 Cranch 506, "the insurers ought to have asked an explanation and not substitute their own conjectures for an alleged representation." If the insurers, in this case, intended to exact a literal compliance with the statement of the time of sailing in the offer for insurance, they should have made it the subject of a warranty, or have informed Allegre that they relied on it as a representation. Had the statement been, that the vessel had sailed; and it were a fact of which its knowledge could be imputed to the insured, it might perhaps be regarded as a representation. But in this case a future event is spoken of, in its nature contingent, and of which the party speaking could not possibly possess any certain knowledge. As supporting the view here taken of this subject. Phil. Ins. 83, 84. Christie vs. Secretan, 8 Term. R. 192. Hubbard vs. Gover, 3 Camp. 312. Bowden vs.  [**42]   Vaughan, 10 East 415. Brice vs. Featherstone, 4 Taunt. 869. and Jendivine vs. Slade, 2 Esp. 572, may be referred to. Also the very strong case of Rice and others vs. The New England Marine Ins. Com. 4 Pick. 439, where Chief Justice Parker, in delivering the opinion of the Court, emphatically states: "We think that the statement of the day on which a vessel will sail, is substantially nothing more than stating an expectation that she will sail on that day." "The most positive intentions to sail on any future day, amount only to a strong expectation, for it must depend on the elements and other causes affecting the sailing of vessels, whether such intention shall be executed or not. And if the time of sailing be material to the risk, the insurer would be as likely to require a warranty, that the vessel would sail or had sailed on the day proposed, if it were stated positively, as if stated only as an expectation."

 [*161]  In opposition to the above references must perhaps be regarded the case of Dennistown and others vs. Little and others, recently decided on appeal to the House of Lords, and reported in 3 Bligh 202. [**43]  But of this case it may be said, that the grounds of the decision are unsatisfactory, and indistinctly stated: and that viewing it even in the light of conclusive authority in this case as to the question adjudicated, it is by no means decisive of the point now under consideration, as presented by the facts in this record. In that case the statement was, the Brilliant will sail on the 1st of May: the fact was that she had sailed on the 23d of April, preceding, and was at that time a "missing vessel." The assured there appeared as owner as well of the vessel as of the cargo, both being covered under the same policy. And upon this last ground the Lord Chancellor mainly rests his opinion: and draws the distinction between the case before him, and that of Bowden vs. Vaughan, the decision in which he recognizes and sanctions. In the case before us, the policy was solely on the cargo; and the underwriters had no reason to presume, that the owner of the cargo had any interest in or control over the vessel. The question now to be settled, therefore stands unaffected by the decision in 3 Bligh.
The order for insurance as regards the time of sailing being deemed no representation,  [**44]  the instruction of the Court to the jury, in the appellants first bill of exceptions, was wrong upon two grounds. First, because it was wholly immaterial to the issue in the cause whether the risk were materially increased or not, by the sailing of the brig at a different time from that stated in the order for insurance, such statement being no representation. Secondly, because the Court submitted it to the jury, to find the fact, that the risk had been materially increased, when no testimony whatever had been adduced on that subject, to warrant the jury in drawing such a conclusion.
To the opinion of the Court, in the appellants second bill of exceptions, but little opposition was made in the argument, 

 [*162]  and to the admissibility of the testimony there offered, we are aware of no well founded objection.
We concur with the County Court in their refusal of the prayers of the appellants, set forth in their third bill of exceptions. If proof of facts were requisite to demonstrate the far greater perils, to which a live cargo is exposed in a sea voyage than a dead cargo; the result of the adventure in controversy, and the testimony given in this cause, are most conclusive; [**45]  106 mules and 4 jackasses were shipped on board the Eugene. By tempestuous weather, which to a dead cargo would have occasioned no injury, 94 mules and all the jackasses were destroyed. On board the British brig Palmyra, 170 or 180 mules were laden, on a voyage from La Plata to Havana: on her arrival at the port of destination, but 33 were alive; 4 or 5 of which soon after died: a common cargo exposed to such perils would in all probability have escaped uninjured. In transporting a cargo of live stock, a great portion of it is stowed upon deck, and consequently subjected to casualties, from which a cargo under hatches is wholly exempt. Indeed so much greater are the estimated risks to goods on deck, than to those in the hold, that double the premium of insurance is demanded for the former, that there is for the latter: And on account of this great diversity in the amount of premium, a policy, on "cargo," or "goods and merchandize," will not cover articles which are stowed upon deck. If the vessel be wrecked or stranded, the chance of saving a dead cargo, is far greater than that of saving a live cargo. In fact, the disadvantages to the assurer attendant on the latter [**46]  risk, which are not incident to the former, are so numerous and obvious that they need not be enumerated. In compacts then of which good faith and fair dealing are the very essence; where it is said to be the duty of the assured to communicate "every fact and circumstance which can possibly influence the mind of any prudent and intelligent insurer, in determining whether he will underwrite the policy at all, or at what premium he will underwrite it," 

 [*163]  ought not the insured to be informed of it, where live stock are the subject of insurance? There is no rule of law or decision of any Court of this State or elsewhere, as far as our researches have extended, which excuses the insured from making such a communication: commercial policy enjoins it; justice demands it; as far as the testimony in this case goes, the usages of underwriters require it, and the highest judicial tribunal in a sister State, hath adjudged it to be indispensable. Should we then hesitate to adopt it? An uniformity of decision among the several States of the Union, on subjects of this nature, is of vast importance to the mercantile community; and that consideration alone, in the absence of all motive or [**47]  obligation to embrace a contrary doctrine, should induce us to sanction the principle established in one of the most enlightened and commercial States in the Union, that a policy on cargo, goods or merchandize, will not cover live stock. The adjudication alluded to, is reported in 4 Pick. 429. Talcot Wolcott et al. vs. Eagle Insurance Company. If it had been in proof that mules or live stock were the only articles of exportation from La Plata to Martinico and the Havana, this would give a new aspect to the case. It would not then be necessary for the insured to notify the insurer of the character of the cargo. That fact having already been made known to him from the nature of the trade, of which the law presumes him to have knowledge. These remarks are made, as applicable to the prayers of the appellants, and with reference to the general principles of the law of insurance, not upon the rights of the appellants resting upon any usage of trade prevailing in the city of Baltimore.
Having approved of the Court's refusal to grant the two instructions asked for in this third bill of exceptions, it remains to be considered whether there be any error [**48]  in the opinion delivered by the Court, of which the appellants have cause to complain. That there is, to us appears obvious. The Court undertook to determine the question of fact, that the appellants were guilty of a concealment fatal 

 [*164]  to the policy, provided the jury believe that the risk was materially increased by the cargo being of mules, instead of a dead cargo, "and that this material increase of risk, was the only question open for the consideration of the jury." In doing so, they threw out of the case the testimony offered by the appellants, "that the term cargo, in the aforesaid order for insurance, would, according to the mercantile understanding and usage of trade among the insurers, and merchants of Baltimore, be considered as covering mules and jackasses;" thus, in effect, determining a controverted matter of fact, of the truth of which contradictory evidence had been offered. If the facts had been left to the jury, as they ought to have been, and they had found that there did exist such a mercantile understanding and usage of trade in Baltimore, upon the whole evidence offered in the cause, it was competent for the jury to have rendered a verdict for [**49]  the appellants, notwithstanding the shipment of mules materially increased the risk which would have been incident to a dead cargo.
We concur with the County Court in their opinion in the appellants second bill of exceptions, but dissent from their opinions in the first and third exceptions.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

23 of 34 DOCUMENTS 

GEORGE BLIZZARD, Adm'r OF GEORGE P. MERRYMAN vs. JACOBS, Adm'r OF JOHN JACOBS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 66; 1830 Md. LEXIS 50 

December, 1830, Decided 

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

This was an action of Debt, brought on the 15th September, 1826, by the appellant, against the appellee, on the following single bill:

"Twelve months after date, we or either of us, do promise to pay or cause to be paid unto George P. Merryman, his heirs or assigns, the just sum of $ 400, it being for value received of him. Witness our hands and seals, the 25th June, 1808.

Martico Merryman, (SEAL.)

John Jacobs,     (SEAL.)"

The writ was returnable to September term, 1826, at which term, the defendant appeared and laid a rule on the plaintiff to declare. During that term, the plaintiff filed his declaration, and the single bill aforesaid; and at March term, 1827, laid a rule on the defendant to plead. The cause was continued to September, 1827, at which term the defendant moved the court to non-pros the action, upon the ground that the obligation on which the suit was founded, was executed by the defendant's intestate, in his life-time, together with a certain Martico Merryman. That Merryman survived the intestate, is still living, and now resides in Baltimore county, and that no suit or other proceeding was ever instituted [**2]  against Merryman, upon the obligation aforesaid. This motion was accompanied by the defendant's affidavit to the facts. At the succeeding term, (March, 1828.) The County Court (HANSON and KELL, A. J.) decided:

1. That the truth of the facts upon which the motion was grounded, might be inquired into by the court, without the intervention of a jury.

2. That the evidence then offered, established the facts of the motion.

3. That under the act of 1825, ch. 167, the action must be non-prossed.

The plaintiff excepted to this judgment of the court, upon the following grounds:

1. Because the plaintiff ought to have pleaded the matters stated in the motion and evidence, and thus given the defendant the opportunity of trying the truth of the facts before a jury, or of replying thereto, and avoiding the effect of those facts by replication.

2. Because the motion was made too late, and should have been made at the appearance term, and before the rule to plead was laid.

3. That it was a motion in abatement upon merely technical grounds.

4. Because this action was not in opposition to the provisions of the act of 1825, which gives no authority to dismiss the [**3]  action when only one suit has been brought.

The judgment of the County Court being for the defendant, the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The object of the act of 1825, ch. 167, throughout, is to prevent an accumulation of costs.

M and J gave their joint and several single bill, upon which an action was brought against the administrator of J. The defendant moved the court for a non-suit under the act of 1825, ch. 167, suggesting, that M was alive, and within the county at the institution of the suit. The County Court decided that a motion was a proper mode of bringing the question before the court, and awarded a non-suit. HELD, upon appeal, that the act of Assembly had no application to the case.

Where two obligors united in a bond, and one of them is dead, the 1st section of the act of 1825, ch. 67, does not prohibit separate actions against the survivor, and the representative of the deceased; nor does it apply where only one suit has been brought, although all the obligors are alive, and reside in the same county.

Where the obligors are all alive and reside in the same county, and the obligee elects to sue one of them only, he cannot bring another suit afterwards against the others, without being subject to a non-suit.

The office of the 2d section of the act of 1825, ch. 167, is to provide for the case of the death of one or more joint and several obligors, where the judgments being different, the surviving obligor or obligors cannot be united in the same action with the representative of the deceased obligor or obligors. There the creditor at his election may have one or two suits, one against the survivor, and another against the representative. Yet if there be more than one survivor living in the same county, he is as to them, restrained to one suit.

Where obligors live in different counties, the creditor may sue on both, or either, at his election. He is however restricted, as to original parties to his bond, to one suit in each county.  

COUNSEL:
Gwynn, for the appellant, contended, that the judgment of the County Court should be reversed for the reasons urged before the County Court. He cited, 1 Chitty's Plead. 215, United States vs. Fisher, 2 Cranch 386, 390. The Mayor, &c. vs. Moore and Johnson, 6 Harr. and Johns. 381. Few vs. Marsteller, 2 Cranch, 24. Hall vs. Jacobs, 4 Harr. and Johns. 245.

He also contended under the 4th reason, that the act of 1825 does not apply to any bill or obligation made before the passage of that act. That it did not prohibit a separate suit against any one of two or more obligors, or the legal representatives of any one of two or more obligors bound jointly and severally, if no other suit or action is brought on the same obligation. That there is no provision in the act expressly requiring or authorising the court to non-pros an action under the circumstances of this case.

J. Scott, and R. N. Martin, for the appellee, contended:

That under the act of 1825, ch. 167, the obligee might sue [**4]  the surviving obligor, without suing the representative of the deceased. But if he sues the representative of the deceased obligor as in this case, he must also sue the survivor. The obligor has an option in one case, none in the other. The legislature intended that there should at any rate, be a proceeding against the survivor, in order that the representative of the deceased, if he was a surety and made to pay the money, should have an assignment of the judgment against the principal. Upon the construction of this act, they cited Schooner Paulina vs. United States, 7 Cranch, 52.

The objection that existing bonds are not embraced by the act of 1825, was not raised in the County Court; the point cannot be reviewed here. But the act does extend to such a bond, and it was competent for the legislature to pass it. It takes away no right; it merely regulates a remedy. The defence could not have been pleaded in bar. It was no bar. It does not deny the cause of action, nor shew it to have been avoided. It could not be pleaded in abatement; that goes to the writ. Here the writ was right. It was a mere irregular proceeding, and a motion was the proper mode of correcting it. 1 Tidd Pr.  [**5]  139. 1 Sellon Pr. 101.

The objection was not too late. The rules of Baltimore County Court are not in the record, and therefore even if forbidden by them, the court cannot enforce them. 6 Harr. and Johns. 273.

But the objection is not one of mere form. It is a substantial one. The statute avoids the writ, and therefore the objection cannot be considered as waived. The objection may be made by motion. 1 Tidd 149. 3 East. 155. King vs. Horne, 4 Durn and East. 349.

The non-pros was the proper entry for proceeding, contrary to the act in the 2d, as well as in the 3d sec. The proceedings are at all events to be set aside, which is equivalent to a non-pros.

Under the act of 1825, all obligations are to be considered as joint, except as there provided; that is, when they reside in different counties, or one of the obligors is dead. The inconvenience of a law is no objection to it, if constitutional. 1 Kent Com. 419 to 431. The People vs. Utica Insurance Company, 15 Johns. 358. Sickles vs. Sharp, 13 Johns. 497. 4 Harr. and McHen. 165. Union Bank vs. Ridgely, 1 Harr. and Gill, 324.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [**6]  
 [*70]  BUCHANAN, C. J., delivered the opinion of the court.
This case depends upon the construction of the act of 1825, ch. 167.
The suit was brought on a joint and several single bill against the administrators of one of the obligors, the other obligor being alive at the time; and on motion, a judgment of non-pros was rendered, an affidavit being filed in court of the fact, that the other obligor was living, and that no process had been sued out or served upon him.

 [*71]  The title of the act of 1825, ch. 167, is "an act to prevent the unnecessary accumulation of costs in civil suits;" and that is the object of the act throughout. The first section provides, that it shall not be lawful to institute more than one suit on a joint and several bond, penal or single bill, when the persons executing the same are alive, and reside in the same county, and that if more than one suit be instituted on any such bond, penal or single bill, judgment of non-pros shall be entered against the plaintiff or plaintiffs, in such suits.
In this case, both of the persons, executing the single bill on which the action was brought, were not alive at the time of instituting [**7]  the suit, and if there had been at the same time, another action against the surviving obligor, it would not have been within the prohibition to institute more than one suit on a joint and several bond, penal or single bill, when the persons executing the same are alive. That prohibition being confined to the case of all the obligors being alive, without providing for the case of one or more being dead, and leaving to the obligor, besides his suit against the survivor or survivors, the liberty to sue also the representatives of the deceased obligor or obligors; nor is it within the provision, that if more than one suit be brought on any such bond, &c. judgment of non-pros shall be entered, there being but one suit. It is clearly then wholly unaffected by the first section; the words such bond, &c. in the first section, have reference to the case before mentioned, of all the obligors being alive. And though in such cases, not more than one suit is permitted to be brought, yet no obligation is imposed upon the obligee to sue all the obligors, (which by such a multiplication of parties, might produce an unnecessary accumulation of costs, contrary to the intention of the legislature,  [**8]  ) but he may sue one only, if he pleases. If, however, he does so, it is at his own risk, and having made his election, he cannot afterwards bring another suit without being subject to be non-suited. Provision being thus made by the 1st sec. for preventing an 

 [*72]  unnecessary accumulation of costs, where all the obligors are alive; the office of the 2d sec. is to provide for the case of the death of one or more joint and several obligors, where the judgments being different, the surviving obligor or obligors cannot be united in the same suit, with the representatives of the deceased obligor or obligors. The language used is, "that if either of the said obligors shall be dead, then and in that case, it shall be the duty of such clerk to docket one action against the surviving obligor or obligors, and if requested so to do by the plaintiff or plaintiffs, or by his, her, or their attorney, it shall be the duty of such clerk to docket also an action against the executors or administrators of such deceased obligor, and to issue a summons, &c. and the same proceedings shall be had, and the same judgment entered thereon, as if separate actions had been brought against each and [**9]  every obligor, in such joint and several bond, &c." The expressions used, are not very technical, and are somewhat obscure. But looking to the general object of the law, the saving of costs to the parties, it could not have been the intention of the legislature, to take from a creditor his right of election, which might be exercised with a saving of costs, by bringing only one suit either against the surviving obligor or the representatives of the deceased obligor, as might be deemed most expedient; and to compel him to bring suit, whether he would or not, against a surviving obligor, (as contended for by the counsel for the defendant,) who might be insolvent; with the privilege of suing also at his election, the representatives of the deceased, which might produce a very unnecessary accumulation of costs, contrary to the intention of the legislature, and operate injuriously to the creditor where the surviving obligor is insolvent, and sometimes vexatiously to the surviving obligor, as where he is only a security. We must search then for the intention of the legislature, which however obscurely expressed, or untechnical the language used, where it can be discovered, ought to be regarded.  [**10]  And keeping that rule in view in the construction of this 

 [*73]  act, we think the meaning of it is, not that the clerk must at all events, if one of the obligors be dead, docket a suit against a surviving obligor without directions, and whether the obligee or his counsel wish or not; but that as the surviving obligor and the representatives of the deceased obligor cannot be united in the same suit, and the obligee is entitled to his remedy against both, if he chooses to pursue it, two suits may be brought, one against the representatives of the deceased obligor, and the other against the survivor. And where it is said that it shall be the duty of the clerk to docket one action against the surviving obligor or obligors, the meaning is, that whether there be one or more obligors surviving, there shall be but one action against them, and that the creditor shall not be permitted to bring separate actions against the several surviving obligors, which is not provided against by the first section, where separate suits are only prohibited in the case of all the obligors being alive and living in the same county. And this view is strengthened by the circumstance, that in the 7th [**11]  section, making provision for the case of obligors residing in different counties, which is not provided for in the 1st section. Similar expressions are used as to clerks docketing actions. The language of that section is, "that in case the obligors, &c. shall reside in different counties, then and in that case, it may be lawful for the clerk of the County Court to docket one action, &c. against the obligor or obligors in such bond, &c. who reside in the same county, and for the clerk of another County Court, to docket another action, &c. against the obligor or obligors who may reside in that county, &c." The case of obligors residing in different counties, or of some being dead, not being provided for by the first section, and the bringing of more than one suit in such a case not being prohibited, the creditor could as before the passing of the act, have brought suits in different counties, or where some were dead, against the survivors, and also against the representatives of the deceased obligors, without the aid of the 2d section; and as it could not have been the 

 [*74]  intention of the legislature to drive an obligee to an unnecessary accumulation of costs, by compelling [**12]  him to bring a useless suit against an insolvent obligor, and thus obliging him to sue also the representatives of the deceased obligor, or by compelling him to sue a surviving obligor who was only a security in the bond, &c. whether he wishes to do so or not; but rather to prevent a useless accumulation of costs, by restraining him from bringing more suits than the nature of the case may absolutely require. The 2d section must be understood as providing only against more suits than one, being brought against the surviving obligors, where there may be more than one; and the 7th section as providing against more suits than one, being brought in any county in which the obligors may reside. When they reside in different counties, no matter how many may reside in either county, the obligee is not required to bring suit in every county in which the obligors may reside, but may, if he chooses, bring one suit only, against such of the obligors as may reside in the same county, although there should be others residing in a different county. The provisions of the 7th section cannot be misunderstood, and the object of both is an unnecessary multiplication of suits, and the consequent accumulation [**13]  of costs in the two cases not provided for by the 1st section. The one where some of the obligors are dead, and the other where they reside in different counties. We therefore think that the judgment of non-suit ought not to have been rendered.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

24 of 34 DOCUMENTS 

GLENN vs. SMITH, Adm'r D. B. N. C. T. A. of HASLETT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 493; 1830 Md. LEXIS 39 

December, 1830, Decided 

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

This was an action of Trover, instituted on the 15th February, 1826, by the appellees, James Smith, as administrator de bonis non cum testamento annexo, of William W. Haslett, against the appellant, Elias Glenn. The case has already been before this Court, and will be found in 7 Harr. and Johns. 17.

The defendant pleaded not guilty, and actio non, &c. to which there were issues.

1. At the trial, the plaintiff having given evidence that the articles stated in the plaintiff's nar, were the property of plaintiff's testator, and were converted by defendant to his use, the defendant then proved that Doctor William W. Haslett, the plaintiff's testator, was, at the time of his death, indebted to a certain John Heslip, in the sum of $ 1261 40, as is stated and appears by the account herewith exhibited.

"1814. Dr. William W. Haslett, dec'd. To John Heslip.

________________________________________________________________________________
May 4.	To balance due on land,	$ 337 50	
	To amount of stock, to wit, horses, cows,	
	 sheep, hogs and farming utensils, pur-	
	 chased,	852 50	
	To interest on one half, per agreement for	
	 six months,	17 85	
	To interest on the other half of the above,	
	 per agreement for 18 months,	53 55	
	
		$ 1261 40	
________________________________________________________________________________

 [**2]  

"May 4th, 1814. Received of Mrs. Ann Haslett, executrix of William W. Haslett, two promissory notes signed by herself, and endorsed by John W. Glenn & Co. in payment of the above account.     John Heslip."

And then proved, the signature of John Heslip to said receipt. He also gave in evidence, the two promissory notes mentioned in the said receipt though the payment in fact. And proved, that said notes were paid by the defendant as executor of Ann Haslett, and that the defendant was, when said notes were given, and afterwards, one of the said firm of J. W. Glenn & Co. and then offered to contend before the jury, that for the amount of said payment he was entitled to be allowed out of the value of the property in dispute in this cause, but which the Court, [HANSON and KELL, A. J.] refused to permit, and said, that John Heslip having accepted the notes of Ann Heslip in payment of his claim against William Haslett, (and passed his receipt for the same,) which notes and receipts on the bill are referred to and inserted above, extinguished his, the said Heslip's claim against the estate of William Haslett, and he became the creditor of said Ann Haslett for the amount of said [**3]  notes, and that the defendant, Elias Glenn, having paid the said notes, as executor of Ann Haslett, he, although an endorser thereon, as one of the firm of John W. Glenn & Co. is not entitled to be allowed the same as a payment made by him for the estate of William Haslett, as executor de son tort of said William. The defendant excepted.

2. The defendant in addition to the testimony stated in the preceding bill of exceptions, offered in evidence to the jury, by Matthew Murray, a competent witness, that part of the property claimed by the plaintiff in this suit, was exposed to sale at auction by the defendant, sometime in November, 1814; and further proved by said witness, who was auctioneer at said sale, that James Smith, the present plaintiff, was at said sale, and was a purchaser, to the best of said witness's recollection, but of what articles witness could not recollect.

The plaintiff then, offered in evidence to the jury, the letters of administration de bonis non on the estate of William Haslett, granted him by the Orphans' Court of Baltimore County, and which are dated July 21st, 1821. And further proved, that at the said sale at auction mentioned by the aforesaid [**4]  witness, Matthew Murray, the defendant sold, together with the said part of the goods claimed by the plaintiff in this suit, a considerable quantity of other goods, and that defendant sold the whole of said goods at said sale, as executor of Anne Haslett, the widow of plaintiff's testator. And the said Matthew Murray, being cross examined by the plaintiff's counsel, stated, that he had no knowledge of a purchase by the plaintiff, of any of the goods now claimed by him, or for which he seeks to recover in this suit, but that, to the best of witness's recollection, the plaintiff was a purchaser at the sale aforesaid, but whether the things so purchased were a part of the said property in dispute in this action, the witness does not know, except as before stated. Whereupon the defendant prayed the opinion of the Court to the jury, that inasmuch as the plaintiff was a purchaser, at the sale of property made as aforesaid, by defendant, as executor of Ann Haslett, of a part of the said property belonging to the estate of Doctor Haslett, and which is in controversy in this suit, it is not competent to him now to deny in this action the legality of said sale, and that he is not entitled to [**5]  recover more than he would have been entitled to recover, if said sale had been in every way legal and proper, which opinion and instruction the Court refused to give. The defendant excepted.

3. In addition to the testimony stated in the two preceding bills of exceptions, the defendant further offered in evidence, that letters of administration c. t. a. on the estate of the said William Haslett, were duly granted him in the State of Delaware, on the 14th of February, 1815, and proved that the property of the said Doctor Haslett in controversy in this suit, was, after the issuing of the said Delaware letters of administration, and after, the defendant had also obtained letters testamentary upon the estate of Ann Haslett, and before the plaintiff obtained his letters of adm. de bonis non, upon the estate of said Doctor Haslett, out of the Orphans Court of Baltimore county, taken possession of, and sold by defendant, as ex'r of said Ann, at the sale at public auction mentioned in the preceding exceptions. Whereupon the defendant prayed the opinion of the Court to the jury, that upon the whole evidence aforesaid, if they believe it, the said possession and sale, so as aforesaid taken [**6]  and made, by said defendant, of said property of Doctor Haslett, was so far legal and valid as not to render the said defendant liable in this action to the plaintiff. Which opinion, the Court refused to give, the defendant excepted; and the verdict and judgment being against him, he prosecuted the present appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

G, as administrator of A, took possession of various articles of personal property left by her, part of which she held as executrix of H, and sold them. Some years after this, letters of administration d. b. n. upon H's estate were granted to S, who brought trover against G, for that part of the property which had originally belonged to H. HELD, that although S was present at such sale and purchased some of the articles, yet he was not precluded thereby from recovering from G for this conversion.

Letters testamentary or of administration granted in another State, give no authority to sue, or to administer assets in this State; and will not exempt a party from liability, in an action by the rightful administrator here, though distribution be made in conformity to such letters.

H died indebted to I, leaving A his executrix, who came into the possession of assets, and paid I the notes mentioned in the following receipt, written at the foot of his account: "Received of A, executrix of H, two promissory notes signed by herself, and endorsed by G & Co. in payment of the above account." Before these notes arrived at maturity, A died, and G, her executor, took possession of her estate and sold it, and paid the notes in question. Letters d. b. n. upon the estate of H were granted to S, who sued G in trover for the value of property which belonged to H, but which G had sold as executor of A. HELD, that the acceptance by I of the notes in question, was not an extinguishment of the debt due him by H; that the payment by G, was, therefore, the payment of H's debt, and entitled him to deduct that payment from the proceeds of H's personal property sold by him.

The acceptance by a creditor from his debtor of his promissory note, for an antecedent simple contract debt, does not extinguish the original debt, if it remains in the hands of the creditor unpaid, and he can produce it to be cancelled, or show it to be lost. But the creditor will not be suffered to recover on the original cause of action, unless he can show the note to have been lost, or produces it at the trial, to be cancelled.

The acceptance by a creditor, of a note or bill of a third person, for a pre-existing debt, is no payment or extinguishment of such debt, unless the creditor parts with it, or is guilty of laches in not presenting it for payment in due time.

In either of the above cases, an express agreement by the creditor to receive the note or bill absolutely as payment, and to run the risk of its being paid, is an extinguishment of the previous debt, whether the note or bill be afterwards paid or not. Such agreements are not to be implied from the use of the words, "in payment of the above account," in a receipt for the note.

To give to the acceptance of a note the effect of an absolute payment, or extinguishment of a debt, a contract that it should be so, must be shown.

The acceptance of a note by a creditor for a precedent debt, is a suspension of his right of action until the note reaches maturity.

There are acts of intermeddling, such as locking up the goods of a deceased person for safe keeping, which will not charge a man as executor of his own wrong.

The taking the goods of an intestate by a stranger, and using or selling them, and in general any intermeddling with them, will, as respects creditors, make him an executor de son tort, and chargeable with the debts of the deceased, so far as assets come to his hands.

As against creditors an executor de son tort is justified in paying the debts of the deceased; and if sued by such he may plead plene administravit, and will be allowed all payments made of just debts, to any other creditors in equal or a superior degree, or in the due course of administration; though he cannot in any case, retain any part of the goods of the deceased in satisfaction of his own debt.

In trover by a rightful executor against a wrongful one, for the goods of the deceased, the defendant cannot plead payment of debts to the value, or that he has given the goods in satisfaction of the debt; but under the general issue, he may give in evidence such payments, and they will be recouped in damages, if they be such as the plaintiff would have been bound to make, as when the debts are just, and there is no deficiency of assets.  

COUNSEL:
Taney, (Attorney Gen'l) and Johnson, for the appellant, contended:

That assuming from the evidence, that the appellant was executor de son tort, he is entitled to recoupe in damages, the amount paid by him, as stated in the 1st exception.

The debt paid by the appellant did not cease to be the debt of William Haslett, when Ann, his executrix, gave her notes for the amount, it still continued a claim against his estate, which was not discharged from it, until the money was paid by Glenn.

Ann Haslett had no authority over the property in controversy, except as executrix of William Haslett, and upon her death, the right passed to the administrator de bonis non of William. The appellant, as the administrator of Ann, had no title to interfere with it, and consequently, by taking possession and selling, he became executor [**7]  de son tort, and as such, had a right to set off payments made by him, on account of William's estate. Tobey vs. Barber, 5 Johns. Rep. 68. Johnson vs. Weed, 9 Ib. 310. Kearslake vs. Morgan, 5 Term. Rep. 513. Puckford vs. Maxwell, 6 Ib. 52. Toller's Ex'rs, 365. Ib. 363. Bishop vs. Rowe, 3 Maul. and Selw. 362. Burdick vs. Green, 15 Johns. Rep. 247. Gallagher vs. Roberts, 2 Wash. C. C. Rep. 191. Ins. Co. vs. Smith, 6 Harr. and Johns. 166. Bower's Adm'r vs. The State, 7 Ib. 32. Clopper vs. Union Bank, 7 Ib. 92.

The second exception they abandoned.

On the third exception, they insisted, that the letters granted the appellant in Delaware, are sufficient to protect him, in an action sounding in damages. When the appellant took possession of, and sold the property, in virtue of his Delaware letters, administration had not been granted appellee in this State, the former therefore cannot be punished as a trespasser, for an act done under such circumstances.

The decisions have gone no further than to make administration in the State necessary, in order to sue in a representative character. There is no evidence of the place of Haslett's death, except what is furnished by the letters [**8]  themselves.

Samuel I. Donaldson and Belt, for the appellee, submitted on notes. Upon the first exception they contended, the appellant was not sued as executor de son tort, but in his individual capacity, he had not taken possession of the property as belonging to Dr. Haslett's estate, or for the purpose of administering the estate of Haslett, and he does not now claim the property under any trust connected with Dr. Haslett's estate, but as executor of Mrs. Haslett. He claims the property in opposition to any right of first testator, (Dr. H.) or those claiming under him. How then can he claim to recoupe in damages. This view of the subject has been recognized and sanctioned by Fishwick vs. Sewell, 4 Harr. and Johns. 429; where it is declared that defendant could not recoupe in damages, because he claimed negroes in his own right, and in opposition and disclaimer of the trust under which they were confided to him.

If the appellant is to be considered as "executor de son tort," he can only retain for debts paid in the usual course of administration. Was the payment of a debt due from Mrs. Haslett, a debt paid in the usual course of administration of Dr. Haslett's estate? Certainly [**9]  not. The debt due from Dr. Haslett to Heslip had been paid by his executrix, and she was allowed for it in her accounts with the Orphans Court, as appears by the record. But if it be a debt against Dr. Haslett's estate, to enable the appellant to have any benefit from it in this action, he must shew the solvency of Dr. Haslett's estate. If he claims to recoupe in damages, it must be on the ground that he was acting as the executor of Dr. Haslett. He must of course shew that it was properly, regularly and legally paid, and without injustice to other creditors. The law obliges executors and administrators to a distribution of assets. Judgments would be preferred to such a debt as this is represented to be, and after judgments, the personal estate is answerable to all creditors alike. De Sobrey vs. De Laistre, 2 Harr. and Johns. 224. In Mountford vs. Gibson, 4 East. 445, Ld. Ellenborough says, "that when it is laid down generally, that payments made in the due course of administration by one who is executor de son tort are good, that must be understood of cases where such payments were made by one who is proved to have been acting at the time, in the character of executor; apply this [**10]  principle to this case. Here the payment made to Heslip, was made by the executor of Dr. Haslett, who was rightfully and properly in the possession of the testator's estate. Her notes endorsed by defendant and his brother, as co-partners, were accepted by Heslip, and she, as before stated, was allowed for payment, as executrix. Defendant was not then in possession of Dr. Haslett's estate, he had nothing at that time to do with it. It was not until Mrs. Haslett's death, that he intermeddled with it, and when he paid the notes given by Mrs. Haslett, he did not pay them as claiming against Dr. Haslett's estate, for they were not so presented to him, but he paid them as claims against Mrs. Haslett, whose executor he was. He was not, therefore, acting as administrator of Dr. H., but as executor of Mrs. H. He did not take the goods to administer as the property of Dr. H., but as belonging to Mrs. H. He did not apply them to the payment of a debt due from him, but to a debt due from her. How then can this be a payment in the usual course of administration of Dr. Haslett's estate? In 1 Ventris, 349, it was held that the payment of a debt by an executor de son tort, "was no discharge against [**11]  an administrator, for men must not be encouraged to meddle with a personal estate without right." More especially can it not be done in this case, "as the same can be adjusted on final settlement of the estate," "if the parties should elect to go into such adjustment." Fishwick vs. Sewell, 4 Harr. and Johns. 429.

Again, an executor de son tort cannot retain for debt of his own. Here he was personally responsible on the notes given by Mrs. Haslett, and he paid the money as her executor, and also to save his individual responsibility, which is equivalent to retaining for debt of his own. Toller, 365. Heslip did not present his claim to appellant, as executor of Dr. Haslett, nor did appellant pay it as such. If there was any claim against Dr. Haslett's estate, by appellant, it was after the payment by him of a debt for which he was personally liable, and if Dr. H's estate was to be liable at all, it must be to appellant as a creditor. If so, he surely cannot retain, because it is a debt of his own. 2 Black. Com. 511. Coulter's case, 5 Co. 30. Before appellant can claim to retain this debt, or recoupe it in damages, he must not only shew, that it was properly a debt due from Dr. Haslett's [**12]  estate, and paid by him in the due course of administration, and that the estate was solvent, but the court must also be satisfied, (and the onus of proof would be on appellant,) that the goods, whose value was found by the jury, were all the goods of Dr. Haslett which came to appellant's possession. It is not now recollected whether the record shews the difference between the goods declared for, and those proved to be in appellant's possession. But it is contended, that in order to enable him to retain under any circumstances, he must shew that the verdict of the jury comprehended all the property of Dr. Haslett in his appellant's possession, or which had been in his possession.

It is not denied that the acceptance of a promissory note by a creditor, for a precedent debt, would not operate as an extinguishment of the original cause of action, unless it was so accepted by the creditor. It is not denied, that if the note so given be not paid, that the creditor might proceed against his debtor on the original cause of action. But it would seem that this is a right limited to the creditor, on the non-payment of the note. In this case, the notes given by Mrs. Haslett to Heslip were [**13]  paid. Could Heslip after that payment, have recovered his original debt from Dr. Haslett's executors? If he could not, can any one else do so? There was no assignment from Heslip to appellant. If surety at common law, pays debt of his principal, he may recover from his principal. Appellant was not surety for Dr. Haslett, but for Mrs. Haslett, acting in her individual capacity. If he paid it as her surety, he must look to her estate. The debt was paid to the creditor of Dr. Haslett, by the executor of Dr. Haslett. The mode of payment cannot vary the principle. It is still a payment to the creditors, not a purchase from him of the debt; for had it been a purchase, there would have been an assignment from him. The cases cited by counsel of appellant do not, it is thought, apply to the circumstances of the case.

When a note is given for a pre-existing debt, it is to be considered as collateral security for the debt, or a discharge of the debt, according to the agreement between parties: see appellant's authorities. What the agreement between the parties was, in this case, was a question for the Court, the only evidence offered, being the written instrument produced by appellant.

There [**14]  are no words in the receipt, to restrain the meaning of the term payment: does not this term, in its usual acceptation, denote an absolute payment and discharge, as fully as if those words were used?

The authorities cited by appellant, shew that when a note is received for a pre-existing debt, it extends the time for payment of the debt, until the note becomes due; the notes in this case, were both paid before due, and a smaller sum than their amount taken in discharge of them, as appears by the receipts upon them. The debt then, from Dr. H's estate, was not payable at the time when the notes were paid, and could not have been sued for by Heslip.

The only effect produced by the payment of A. H's notes, was to substitute her executor in the place of Heslip, the original creditor, and create a debt from the estate of Dr. Haslett, to the appellant, as executor of A. H.; and he stands in precisely the same situation in which he would have stood, if the notes of A. H. had extinguished the debt to Heslip, when they were first given. He is a creditor of the estate of Dr. H., seeking to discount his debt from the amount to be recovered in this action. Whether the debt be due to him [**15]  individually, or as representative of another, can make no difference; the maxim of law that no man shall take advantage of his own wrong, equally applies. And the policy of the law which prohibits a retainer for his own debt, by an executor de son tort, would be equally invaded, whether the debt were due to him in his individual, or in a representative capacity.

The second exception being abandoned, the views of the appellee's counsel are omitted.

3d EXCEPTION. The Courts of Maryland cannot recognise administration granted in another State. Such letters give no authority. The administrator so appointed cannot sue, cannot exercise any right, power or control over the personal estate of the deceased, in this State. Letters of administration granted by another State, are considered here as mere nullities. Act of 1813, ch. 165, by which power is given to persons having letters testamentary, or of administration in the District of Columbia, to prosecute and recover claims in this State. It is declaratory of the received law on this subject. Fenwick vs. Sears' adm'rs, 1 Cranch, 259; as strong a case in support of the principle here contended for, as could well be presented to [**16]  the Court. When the letters of administration in that case, were first granted, their operation extended to the District of Columbia, but after the cession, they were considered by the Supreme Court of the United States, as of no authority or validity there. The case of Morrel and others vs. Dickey, 1 Johns. Ch. Rep. 153, is to the same effect. Chancellor Kent says, "it is well settled, that we cannot take notice of letters testamentary, or of administration granted abroad, and that they give no authority to sue here;" he also says, "this case (where a guardian appointed by the Orphans Court of Philadelphia was the complainant) is within the reason of the rule," and refers to Fenwick vs. Sears, and Goodwin vs. Jones, 3 Tyngs' Rep. 514, and Riley vs. Riley, 3 Day, 74. If our Courts cannot notice foreign letters of administration, no act can be valid under them; for it will be recollected, that administrator derives his right from the letters of administration only, and not from any act of the deceased. Appellee could not, therefore, by virtue of letters granted in Delaware, justify the taking of the goods and chattels of Dr. Haslett, but is answerable to the appellee in the same manner,  [**17]  as if no such letters had been granted.

There is no legal evidence of such letters in this cause, they should be produced, or their absence accounted for to authorise secondary evidence to prove their character and contents. The act of Congress of May 26, 1790, ch. 11, says, that records and judicial proceedings are to be certified, &c. In this case, the record and judicial proceeding itself, is not certified. It is merely stated, that there were such proceedings, without sending the record or certifying it.  

JUDGES:
The cause came on to be argued before BUCHANAN, Ch. J., EARLE, and MARTIN, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*504]  BUCHANAN, Ch. J., delivered the opinion of the Court.
There are three bills of exceptions, upon which this case is brought before this tribunal.
The suit is an action of Trover, by the appellee as administrator de bonis non, of the estate of William Haslett, with the will annexed, for certain goods and chattels which belonged to William Haslett, his testator, and were left unadministered by Ann Haslett, deceased, whom in his will he constituted his executrix.
The second exception was abandoned in the argument, by the counsel for the appellant,  [**18]  and clearly could not be sustained. The prayer assumes the fact that the appellee was a purchaser, at a sale by the appellant, as executor of Ann Haslett, of a part of the property belonging to the estate of William Haslett, and in controversy in this suit, (though 

 [*505]  without stating what part of the property in controversy,) and upon that assumption, asks the opinion of the Court to the jury, that the appellee is not competent to deny the legality of the sale, nor entitled to recover the value of the property so assumed to have been bought.
Now besides, that whether there had been such a purchase or not by the appellee, was a matter proper to be left to the jury, the fact assumed does not appear in this part of the cause. There is no evidence connected with this bill of exception, that the appellee ever purchased any part of the property in controversy, or any goods that belonged to the estate of William Haslett, and the Court could not have done otherwise than reject the prayer, even if the fact assumed, had it been proved, would have justified such a direction. But if, in point of fact, the appellee did in November, 1814, purchase at a public sale by the appellant [**19]  as executor of Ann Haslett, a part of the property, for which this suit was brought, it by no means follows that he should not for that reason, be permitted to deny the propriety, or legality of that sale, nor entitled to recover quo ad the property so sold. He was not then the administrator de bonis non of the estate of William Haslett--his letters of administration were not issued until the 21st July, 1821, more than six years afterwards; and there is no proof in the record, that he knew any part of the goods sold to have been the property of William Haslett, if in truth they were, or that he intended in any manner to intermeddle with that estate. He did no wrong himself, and did nothing to lead the appellant into any error, nor was there a semblance even of any management or collusion between them. He was as a mere stranger, and had the same right to purchase at a public auction, that any other had; and there is no reason why the appellant, who sold the goods as the executor of Ann Haslett, and received the fruits of that sale, should be protected against a recovery of the value, in an action of trover by the appellee, who afterwards became the administrator  [**20]   de bonis non of Willian Haslett, by the mere fact, 

 [*506]  that he was himself the purchaser, under circumstances calculated to induce the belief that they belonged to the estate of Ann Haslett. It is of no consequence who was the purchaser. The appellant wrongfully taking and selling the goods, became answerable for their value; to which the appellee, on obtaining his letters of administration, became entitled, as the legal representative of William Haslett, and it is not a case within the principle, upon which Whitehall vs. Squire was determined in Carth. 104, where the plaintiff having received from the defendant, a horse that belonged to the intestate for services performed about the funeral of the intestate, at defendant's request, afterwards administered on the intestate's estate, and brought an action of trover against the defendant, for the value of the horse so received by him before he administered; it was decided by two judges against Holt, that he was not entitled to recover, because he was a particeps criminis, in the very act of wrong complained of, the intermeddling with the estate, and receiving a part of it in discharge of a claim,  [**21]  from the hands of one, having no authority to deliver it. There is no pretence of any such intermeddling by the appellee here.
The third exception rests upon the legal effect of letters of administration with the will annexed, of the goods and chattels of William Haslett, granted in the State of Delaware to the appellant. By the testamentary system of this State, the manner in which assets are to be distributed is prescribed, and the administrator is to give bond and security, and render an account of his administration in the Orphans Court. And it is the settled and well known law of the State, that letters testamentary, or of administration granted in another State, give no authority to sue, or to administer assets here. Our Courts can take no notice of letters testamentary, or of administration granted abroad; and the same law prevails generally in this country, and it is also the law of England. If that be the case, and we can take no notice of the letters of administration granted to the appellant 

 [*507]  in the State of Delaware, how can they have the effect to make legal and valid, any possession taken, or sale made of the property of William  [**22]   Haslett by the appellant, and to exempt him from liability in an action by the rightful administrators. So far as concerns his liability in this suit they are as blank paper, and cannot legalize acts otherwise tortious; it is as if he had no letters, and could not therefore rightfully take possession of, and sell the property of William Haslett; but in doing so without any authority known to the laws of the State, was a wrong doer, and cannot protect himself under cover of that, which gave him no authority to act. Moreover, for aught appearing in this exception, the appellant did not take possession of, and sell the property, under any supposed authority derived from the Delaware letters of administration; on the contrary, the proof as set out in the record is, that he took possession of the property in controversy and sold it, as the executor of Ann Haslett, which he could not do under letters of administration upon the estate of William Haslett. The Court therefore did right in refusing to direct the jury as prayed; "that the possession, and sale so proved, of the property in dispute by the appellant, was so far legal and valid, as not to render him liable in this [**23]  action to the appellee."
We come now to the consideration of the first exception, which presents the only remaining question in the cause to be disposed of, and that is, whether under the evidence stated in this bill of exception, (out of which we cannot look to the testimony contained in any other exception, and not connected with this) the appellant was entitled to have recouped in damages, the payments made by him to John Heslip, who was a creditor of William Haslett. This being an action of trover by the rightful administrator for the value of the goods mentioned in the declaration.
The proof as stated is, that the goods belonged to William Haslett the testator of the appellee; and after his death were taken by the appellant and converted to his use. That William Haslett died indebted to John Heslip, in the sum 

 [*508]  of $ 1261 40; that Ann Haslett, executrix of William Haslett, on the 4th May, 1814, gave to John Heslip, her two promissory notes endorsed by John W. Glenn & Co. in whose favor they were drawn, one for $ 612 85, payable six months after date, and the other for $ 648 55, payable eighteen months after date, making together [**24]  the sum of $ 1261 40, the amount of his account against William Haslett; at the foot of which account, he wrote a receipt for the notes so given him, which is in these words: "received of Mrs. Ann Haslett, executrix of William W. Haslett, two promissory notes signed by herself, and endorsed by John W. Glenn & Co. in payment of the above account." That afterwards and before the institution of this suit, the appellant, as executor of Ann Haslett, paid to John Heslip, the amount of each of those notes. For these payments he claimed to be allowed at the trial, out of the value of the property in dispute, which the Court refused to permit, on the ground that the notes given by Ann Haslett, and received by John Heslip for the amount of his claim against William Haslett, extinguished that debt, and made him the creditor of Ann Haslett for the amount of his notes, with no remaining claim against the estate of William Haslett.
The first enquiry then to which our attention is directed, is as to the legal effect, and operation of the acceptance by John Heslip of the notes of Ann Haslett, so given and received by him. And in the absence of all [**25]  evidence upon the subject, except the receipt of John Heslip, at the bottom of his account, we think it clear, that his acceptance of Ann Haslett's notes did not extinguish his claim against the estate of William Haslett. The general rule is, that the acceptance of a security or undertaking of equal degree, is of itself no extinguishment of the former debt. Thus the acceptance by a creditor from his debtor of his promissory note, for an antecedent simple contract debt, does not extinguish the original debt, (both being of equal degree in the eye of the law) if it remains in the hands of the creditor unpaid, and he can produce it to be cancelled, 

 [*509]  or show it to be lost. But he will not be suffered to recover on the original cause of action, unless he can show the note to have been lost, or produces it at the trial to be cancelled. So too, the acceptance by a creditor of a note, or bill of a third person, for a pre-existing debt, is no payment or extinguishment of such debt, unless the creditor parts with it, or is guilty of laches in not presenting it for payment in due time. Kearslake vs. Morgan, 5 Term. R. 513. Puckford vs. Maxwell, 6 Term. R. 52. [**26]  Bishop vs. Rowe, 3 M. & S. 362. Swinyard vs. Bowes, 5 Maule & S. 62. Burdick vs. Green, 15 Johns. 247. Ins. Co. vs. Smith, 6 H. & J. 166, or unless in either of the cases put, there is an express agreement by the creditors to receive it absolutely as payment, and to run the risk of its being paid. In which case it is to be taken, as an extinguishment, or payment of the precedent debt, whether the note or bill be afterwards paid or not. Clark vs. Mundal, Salk Rep. 124. 7 Term. R. 60. Tobey vs. Barber, 5 Johns. 68. Johnson vs. Weed, 9 Johns. 310.
The expression, "in payment of the above account" at the end of John Heslip's receipt for Ann Haslett's notes are the only words used, that can be supposed to have any tendency to show that he had agreed to receive them in full and absolute discharge of his prior debt, and to take upon himself, the risk of their being paid, or not; which is the agreement necessary to be proved, to give to his acceptance of them, the effect to extinguish the pre-existing debt, (the notes having never passed from his hands until taken [**27]  up by the appellant) and for that purpose his receipt is relied upon. But it would be going very far to say, that the mere use of the words, "in payment of the above account," furnishes proof of such an agreement. It could be but an inference, and that stronger than the words will bear, or the character of such transactions justify. If there had been any such agreement, the presumption is, (if presumption can be indulged in) that it would have been 

 [*510]  stated in the receipt. The very negotiation upon the subject would have indicated the expediency of its being so stated. And in the absence of any such statement, are we at liberty to infer it? And infer it from what? Not from that, which (in the ordinary use of the terms) naturally points to such an agreement, and which if unexplained, would admit of no other fair inference; but from that, which looking to the character of such transactions, may well be understood to have been intended, as an acknowledgment only, that the notes were given for, and on account of the precedent claim against the estate of William Haslett; to show what was the consideration of the notes, and to furnish Ann Haslett the executrix, with a necessary [**28]  document in the settlement of her accounts; not an acknowledgment that the original debt was absolutely paid, nor of an agreement to take the notes in absolute payment, and to discharge the estate of William Haslett from all further liability; but only that the notes when paid, should be in discharge of the original debt, showing on what account they were given, and to prevent a recovery on both causes of action.
This would seem to be the fair understanding of the receipt, no motive appearing to induce John Heslip, to take the notes in full and absolute payment, and to discharge the estate of William Haslett. And it is believed to be in accordance with the usual understanding of such receipts, creditors not being presumed when they take the notes of third persons, on account of precedent debts, to intend to receive them in absolute payment, and extinguishment of such debts; but only sub modo, that is, in the event of their being paid, unless otherwise expressed in the receipts, and we are not without judicial decisions in consonance with this view of the subject.
In Keaslake vs. Morgan, 5 Term. R. 513, it was conceded, that a promissory note of a [**29]  third person accepted, and received by a creditor, "for, and on account of a debt due him," was not of itself an extinguishment of that debt. 

 [*511]  And what is a receipt of a note in payment of a debt, more than a receipt for, and on account of a debt. Money received for, and on account of a debt, is received in payment of it.
In Puckford vs. Maxwell, 6 Term. R. 52, where the plaintiff had accepted a bill in part payment of his debt, Ld. Kenyon said, "if the bill which is given in payment, do not turn out to be productive, it is not that which it purports to be, and which the party receiving it, expects it to be, and therefore we may consider it as a nullity, and act as if no such bill had been given." There the fact of a note being given in payment, was held not to be an extinguishment of the debt. And what is this receipt more than an acknowledgment, or evidence of the same fact, that the notes were given in payment.
The same principle has been followed out in the Courts of New York. In Tobey vs. Barber, 5 Johns. 68, there was a receipt by a landlord to his tenant in these words, "received of Ralph Barber $ 163 on [**30]  account of the within lease, and in full for the second, and third quarters rent." It turned out in evidence that the sum of $ 163, mentioned in the receipt was made up in part of money paid by the defendant to the plaintiff, and in part of a note of a third person given to the plaintiff, and it was decided, that there was no evidence that the plaintiff agreed to run the risk of the solvency of the maker of the note, and to take the note in absolute payment, except by inference arising from the receipt, which was not enough to establish such a positive agreement. There was a receipt in full purporting to be for cash, which might have afforded some ground for supposing that the plaintiff intended to treat the note as cash, and to put it on the same footing with the money received, which as far as it went, was a discharge of so much of the rent. It is a stronger case than this.
In Johnson vs. Weed, and another, 9 Johns. 310, where the plaintiff having sold goods to the defendants, received the note of a third person for the amount, and gave 

 [*512]  the defendants a bill of the goods, with a receipt in full at the bottom, it was held that the terms of the receipt [**31]  were not decisive, and it might be understood, consistently with the words of it, that the note was received in full, under the usual condition of its being a good note.
And in Putnam vs. Lewis, adm'r of Lewis, 8 Johns. 389, where the plaintiff having a demand against the estate of the defendant's intestate, received the defendant's promissory note for the amount, and gave him a receipt in these terms, "received of George R. Lewis, $ 53 96, it being in full of all demands which I have against the estate of Eber Lewis, deceased," it was decided that the note was no payment of the debt. That case and this, are nearly identical, and if there be a difference, that is the strongest case. There can be no real distinction between a receipt in full of all demands, and a receipt in payment of all demands. In both cases the notes were given by the representatives of the deceased, for debts due from the deceased, and the only difference is, that in this, the receipt is for the notes themselves, and in that case the receipt was for the money, specifying the amount, and so far at least, treating the note, (which was all that was in fact received) as money.
To give to [**32]  the acceptance of a note the effect of an absolute payment, or extinguishment of a debt, a contract that it should be so, must be shown; an express agreement to receive it as payment, and to run the risk of its being paid, which is not sufficiently done by the receipt in this case, to justify us in saying that the claim of John Heslip against the estate of William Haslett, was extinguished by his acceptance of Ann Haslett's notes.
Considering then, the claim of John Heslip as not extinguished until the notes of Ann Haslett were paid, but his right of action only suspended during the period allowed for the payment of the notes, was the appellant who made the payment, entitled to have them recouped in damages.
It has been suggested by the counsel for the appellee, that it is incumbent on the appellant to entitle himself to the 

 [*513]  allowance he claims, to show the solvency of the estate of William Haslett. No question appears to have been raised in the Court below upon that subject, and it will be considered here as if there was no deficiency, indeed it is not suggested, nor does there appear to be any deficiency; treating it then, as a case clear [**33]  of all question relative to the sufficiency of assets, if it was a suit by a creditor of William Haslett, there could be no doubt, on the plea of plene administravit, that he would be entitled to an allowance for the payments made to John Heslip, if they are to be taken as payments of John Heslip's claim against the estate of William Haslett.
There are acts of intermeddling, such as locking up the goods of a deceased person for safe keeping, which will not charge a man as executor of his own wrong; but the taking the goods of an intestate by a stranger, and using or selling them, and in general any intermeddling with them, will as respects creditors, make him an executor de son tort, and chargeable with the debts of the deceased, so far as assets come to his hands. But as against creditors he is justified, in paying the debts of the deceased; and if sued by a creditor he may plead plene administravit, and will be allowed all payments made of just debts, to any other creditors in equal or a superior degree, or in the due course of administration; though he cannot, in any case, retain any part of the goods of the deceased in satisfaction of a debt due to [**34]  himself. There is, however, a difference between a suit by a creditor, against an executor de son tort, and one by a rightful executor or administrator. If the action by the latter be trover for the goods of the deceased, the defendant cannot plead payment of debts to the value, or that he has given the goods in satisfaction of the debts. But on the general issue pleaded, he may give in evidence such payments, and they will be recouped in damages, if they be such as the plaintiff would have been bound to make, or in the language of some of the books, made in due course of administration. Carth. 104. Bull. N. P. 48. 2 Blk. Com. 507. 

 [*514]  Mountford vs. Gibson, 4 East 441. Toll. L. Ex'rs, 363, 364. Parker vs. Kelt, 12 Mod. 471.
What then is this case? We have already said, and attempted to show, that the acceptance of John Heslip, of the notes by Ann Haslett, was not a payment or extinguishment of his claim, against the estate of William Haslett, but that the original debt continued, notwithstanding the receipt of those notes. Had Ann Haslett paid those notes, she would, by doing so, have discharged the original [**35]  debt--and the payments having been made by the appellant as her executor, makes no difference. They were her notes, and he as her executor was bound to pay them, if assets sufficient came to his hands; and in paying them, he paid the original debt, on account of which they were given. It is not the payment of the notes, as the debts of Ann Haslett, on which his claim to recoup, rests; but the payment of the original debt that remained in force, until discharged by him, with which the amount of the notes was identical. Where it is said that the payments to be recouped in damages, by an executor de son tort, in trover by a rightful executor or administrator, must be such as are made in the due course of administration, it is meant, such as the rightful executor or administrator would have been bound to make, as where the debts were just, and no deficiency of assets. And that is this case. The payment by the appellant of the claim of John Heslip, against the estate of William Haslett, was such as the appellee would have been bound to make, and we think he was entitled to have the amount recouped in damages.
The cases of Mountford, adm'r of Holland vs. Gibson, 4 East 441, and Fishwick vs. Sewell, 4 H. & J. 393, [**36]  referred to by the counsel for the appellee, are not like this.
We concur with the Court below, in the 2d and 3d exceptions, but dissent from the opinion expressed in the 1st, and therefore reverse the judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

25 of 34 DOCUMENTS 

MCLAUGHLIN vs. DE YOUNG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 4; 1830 Md. LEXIS 41 

December, 1830, Decided 

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

These were actions of Assumpsit brought by the appellee, Meichel De Young, against Matthew McLaughlin, John Reed and William Simpson, on the 27th July, 1826.

They were founded on promissory notes, which the defendants were alleged in the declarations to have made as co-partners in trade, under the firm of McLaughlin, Reed and Simpson.

The writs were returned by the sheriff, "cepi" "Matthew," "non est, the rest."

At the return term, the appellant, Matthew McLaughlin, appeared, and filed the following plea. "And the said Matthew comes and says, that he is in no wise guilty of the trespass aforesaid, as the said Meichel above complains against him, for plea he says, that the said William Reed, who in the said writ, is called by the name of John Reed, one of the defendants, is dead, and that he died before the suing out of the said writ of the said Meichel, to wit, at Baltimore county aforesaid, and this he is ready to verify; wherefore he prays judgment of the writ aforesaid, and that it may be quashed, &c."

The plaintiff demurred specially to this plea. 1st. "That it is defective in this, that it concludes by praying judgment [**2]  of the writ, and that the same may be quashed, &c. whereas, it ought to have concluded by praying judgment, if the court will proceed any further." 2d. "That in it the said defendant says, that he is in no wise guilty of the trespass aforesaid, and it appears from the proceedings had before the said plea was put in, that the cause of action was in case, sounding in assumpsit, and not in trespass." 3d. "That it is double in this, that it alleges that the said defendant was not guilty of the trespass aforesaid, and also, that the said William Reed, who in the said plea, is called John Reed, died before the suing out of the said writ." 4th. "That it is both in bar, and abatement." 5th. That it begins as a plea in bar."

The defendant joined in demurrer, and the judgments of the County Court being against him, he prosecuted the present appeals.  

DISPOSITION:
JUDGMENTS REVERSED.  

HEADNOTES:

Y sued out a writ in trespass upon the case against M, J R, and S, and filed a declaration, counting upon their note as co-partners. M, only was arrested. At the return term of the writ he pleaded as follows: "And the said M comes and says, that he is in no wise guilty of the trespass aforesaid, as the said Y above, complains against him; for plea he says, that the said W R, who in the said writ is called J R, one of the defendants, is dead, and that he died before the suing out of the said writ of the said M, to wit, at, &c. and this, &c. Whereupon he prays judgment of the writ aforesaid, and that it may be quashed." HELD, upon special demurrer, that this was a valid plea in abatement.

A plea in abatement of the writ, is one which shows ground for abating or quashing it, without at the same time denying the right of action itself; and if a plea begins in bar, though it contains matter in abatement, it will be treated as a plea in bar.

An informal or repugnant protestation does not on demurrer, vitiate a plea.

The death of one of the parties named as defendant in a writ, before the impetration of it, is ground of abatement. 

COUNSEL:
Scott, for the appellant, contended, that as the sufficiency of the subject matter of the plea, was admitted by the demurrer, the only question was, is it well pleaded in point of form? and he insisted that it was properly pleaded.

Gill, for the appellee, referred to 2 Harr. Ent. 301. 1 Chitty's Plead. 445. 1 [**3]  Saund. Plead. Ev. 13. 1 Stephens' Plead. 65, 66. 1 Chitty's Plead. 439, 440, 450, 445, 446. 2 Saund. Rep. 209, a (note.) 3 Term Rep. 185.  

JUDGES:
The causes were argued before BUCHANAN, Ch. J., and EARLE, MARTIN, STEPHEN, and DORSEY, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*6]  BUCHANAN, Ch. J., delivered the opinion of the court.
A plea in abatement of the writ, is one which shows ground for abating or quashing it, without at the same time denying the right of action itself; and if a plea begins in bar, though it contains matter in abatement, it will be treated as a plea in bar. But this plea is not obnoxious to the objection raised to it, that it begins in bar. It seems to have been literally copied from a plea of the same kind in Wentworth, and although it is headed by the word, "says that he is in no wise guilty of the trespass aforesaid, as the said Meichel above complains, against him," yet they are not to be considered and treated as if introduced as a material part of the plea itself, but only by way of informal protestation, which is clearly shown by the next succeeding words, "for plea says," &c. and in Story on Pleading, we find the same plea with the same matter prefixed with [**4]  this difference only, that it is set out in the shape of a more formal protestation. And it is not a material objection to the plea, either that it is informal, as 

 [*7]  a protestation, or that the writ is treated as a writ in trespass, when it appears from the declaration to be an action of assumpsit, a protestation being wholly immaterial, and of no avail in the action in which it is used, but intended only to guard the party against being concluded in another action which it has in view. Hence, a repugnant, inconsistent, idle, or superfluous protestation, does not on demurrer vitiate the plea, whatever its faults of form may be. Treating this then, as an informal protestation, wholly immaterial to the action, and not in other respects vitiating the plea, it does not infect it with duplicity, as is supposed by the demurrer.
The death of one of the parties named as a defendant in the writ, before the impetration of it, is not only proper matter of abatement, but sufficiently pleaded, the words "the said," introduced into the plea, showing William Reed, the person alleged to be dead, and the person named in the writ, John Reed, to be one and the same. And it is clearly [**5]  no cause of demurrer, that the plea concludes with the prayer, that the writ may be quashed; it is the only proper conclusion of such a plea in abatement, and is not like the case of a plea in abatement, to the person of the plaintiff or defendant, showing a personal disability in one or the other, to sue or be sued, as that the plaintiff for example, is an alien enemy. Pleas of that character not falling strictly within the definition of pleas in abatement, do not "pray that the writ may be quashed," but "if the plaintiff ought to be answered, &c." But a plea of the character of this, strictly in abatement, showing a ground for quashing the original writ, properly concludes by praying "that the writ may be quashed."
The demurrers to the pleas, ought, we think, to have been overruled, and for that reason
JUDGMENTS REVERSED.  

26 of 34 DOCUMENTS 

PRICE'S Adm'r vs. TYSON'S Adm'rs.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 475; 1830 Md. LEXIS 37 

June, 1830, Decided 

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

This was an action of Assumpsit, brought in Baltimore County Court on the 16th of September, 1815, in the name of John Price, (the appellant's intestate,) against Nathan Tyson, (the appellee's intestate,) and on the suggestion, &c. of the defendant, was transferred to Harford County Court, to March term, 1817. At August term, 1817, the whole matter in dispute between the parties was by consent, referred to Lemuel Taylor and Robert Barry, in the usual manner. The cause was continued on the reference docket, until March term, 1823, when the defendant suggested the death of the plaintiff, and William Price, (the appellant,) appeared as administrator of the deceased, to prosecute of and upon the premises, &c. At August term, 1823, the plaintiff suggested the death of the defendant, and leave was given to issue a summons, to be directed to the executor or administrator of the defendant to appear, &c. This leave was again given at the next, and at the succeeding terms, until March term, 1825, when a summons issued to Mary Tyson, Isaac Tyson, and Moses Sheppard, the appellees, as administrators of Nathan Tyson, to appear, &c. at the next term. At August [**2]  term, 1825, the appellees being summoned, appeared, &c. At March term, 1826, no award having been returned, and the cause having been still continued on the reference docket, the plaintiff prayed that the reference to the arbitrators might be stricken out, and the cause reinstated, suggesting in his petition, that Lemuel Taylor, one of the arbitrators, had long since removed from the State. The Court struck out the reference, and reinstated the cause. The plaintiff then filed his declaration containing sundry counts, charging that Nathan Tyson, in his life-time, to wit, on the 1st of June, 1815, was indebted to John Price, in his life-time, in the sum of $ 13,000, for the freight, hire and charter of a certain schooner or vessel called the Eutaw, whereof the said John was owner, for the performance of a voyage from the port of Baltimore to the island of St. Bartholomews, &c. A rule was laid on the defendants to plead, for which purpose they imparled until the next term. At the next term, (August, 1826) the defendants moved the Court to correct the docket entries, alleging that it appeared by those entries that the defendant appeared in Court at March term, 1823, and suggested the death [**3]  of the plaintiff, when in fact the defendant was not alive at the time the said suggestion was made, and it was made by John Scott, esquire, who was counsel for the plaintiff, and made the suggestion at the special instance of the now plaintiff. Affidavits were filed, stating that Nathan Tyson died before March term, 1823, of Harford County Court; that John Scott, esquire, informed the deponents, that the suggestion of the death of John Price, the original plaintiff, was made by him, acting on behalf of William Price, as administrator of the said John. The Court refused to have the docket entries amended. The defendants then pleaded, "that after this action was instituted, and while the same was pending, to wit, on the 15th of March, 1819, Nathan Tyson, the original defendant therein, died; and that afterwards, and before any suggestion of the death of the said Nathan was made to this Court, to wit, on the 14th of October, 1821, John Price, the original plaintiff herein, died; and this the defendants are ready to verify. Wherefore they pray judgment of the writ and declaration aforesaid, and that the same may be quashed," &c. This plea was supported by affidavit. The plaintiff demurred [**4]  to the plea, to which there was a joinder in demurrer. The County Court overruled the demurrer, and gave judgment for the defendants, with costs. From which judgment the plaintiff appealed to this Court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Under the 11th section of the act of 1785, ch. 80, it is the duty of the Court to continue a cause standing under a rule of reference, until an award is returned. The death of both parties, while it remains under that rule, does not abate the action.

When the parties to a cause, standing under a rule of reference, die before an award returned, and there is ground to warrant the County Court in reinstating the cause upon the trial docket, the regular course is to move for its reinstatement in the name of the original parties; when that is ordered, their death should next be suggested, then their representatives summoned to appear, and upon their appearance, the cause proceeds as in other cases.

Where one of the arbitrators appointed under a rule of Court, had removed from the State, and many years had elapsed since his appointment, without an award being returned, the Court on motion reinstated the cause.

PER HARFORD COUNTY COURT.  

COUNSEL:
Gill, for the appellant, contended, that the judgment of the County Court was erroneous under the true construction of the Act of 1785, ch. 80. That act in its first section provides, "That no action, brought, or to be brought, in any Court of law in this State, shall abate by the death o either of the parties to such action; but upon the death of any defendant, in a case where the action by such death, would have abated before this act, the action shall be continued, and the person interested on the part of the defendant, may appear," and in the case of a failure to appear, the plaintiff may issue summons for defendant, and enforce it by attachment. A similar provision also exists in relation to the plaintiff upon his death. It is also declared, that in case there be no appearance, or proceeding by either party in any case, before the 10th day of the second Court, after the death shall be suggested, then the action shall be struck off [**5]  and discontinued.

An opinion has prevailed among the profession, that if both parties died before a suggestion of the death of either of them upon the record, the cause must abate. That idea is founded upon the technical notion that an actor must remain in Court, to suggest to the Court, the death of his opponent. No reason was assigned for this, except that the clerks had so made up their records from the passage of the law. The act in question is a highly remedial one. Its great design was to prevent the abatement of suits, and to enable executors and administrators to prosecute and defend the causes of their deceased testators and intestates, at the very point at which their death left them. An object of this importance, so just and reasonable in itself, should not be restricted by formal objections. Every reason which would induce the legislature to prevent the abatement of actions, and permit the representatives of deceased parties to appear, prosecute and defend, in regular succession, (and which it is not disputed, they may do as often as the contingency of a death and the appointment of a representative demand, provided such representative's appearance is entered upon [**6]  the docket before the death of the opposing party, or his representative) applies with unabated force, and equal justice, to the more calamitous case of the death of both parties. The opinion therefore, so long prevalent, but which has never yet been sanctioned by this Court, cannot be correct. It opposes the first principle in the construction of remedial laws. Cases within the equity and spirit of such laws, and for which the legislature would unquestionably have provided to the letter, had they been anticipated, are to reap the benefit of the remedy, as extensively, as if they had been expressly mentioned. People vs. Utica Insurance Company, 15 Johns. 380. 6 Bac. Ab. Stat. 382, 387, 391, 392. 6 Harr. and Johns. 388. The judgment of the County Court cannot escape this objection, even if it should not be shewn, that a cause standing under a rule of reference is particularly provided for by the 11th section of the same act. That section enacts: "That all causes referred by consent of parties and rule of Court shall be continued until an award is returned, and if a death of either of the parties happen before an award returned, and judgment thereon, such cause shall not abate by the [**7]  death, but upon reasonable notice to the person succeeding in interest, (and not being a minor,) the arbitrators shall proceed to a determination, and return their award, upon which, judgment may be entered by the Court, notwithstanding the death of the parties." If arbitrators die, refuse to act, or neglect to return an award, the Court may in its discretion, and upon motion, reinstate the cause, and take order to have it fairly tried.

The section in question has never been construed by this Court. In this case arbitrators were appointed by rule of Court in 1817. Tyson died in 1819. Price died in 1821. During the period from the reference to the death of Price, it is not denied that the cause was regularly continued. The act commands the Court to continue the cause until an award shall be returned. Upon the death of either party, the arbitrators may proceed upon notice to the representative. The Court aware that the cause is under a rule of reference, and no award being returned, have no duty to perform, but to continue it. The principles and the equity which would prevent the abatement of an action not referred, apply with equal force to a referred cause, so long as it remains [**8]  before the arbitrators. The Court continue it to enable the parties to have the security of a judgment when the arbitrators conclude it. The parties have the power to prosecute their rights before the arbitrators; and the presumption is, and ought to be, when they or their representatives sleep upon their rights, require no active diligence of their arbitrators, permit the Court to continue the cause for a series of years without complaint or opposition, that both are satisfied, and remain under the expectation of ultimately having their rights determined by the parties of their own selection. This presumption is confirmed by the privilege of either party being authorised to require the Court to reinstate the cause for trial after a lapse of eight months, without an award. After that much delay, the dissatisfied party may move the Court for a hearing in the ordinary course of justice. Neither party adopted this course until 1823, when Price's representative suggested his intestate's death, and appeared for him, and then suggested Tyson's death, and summoned his representatives into the cause. Both parties were in Court at August, 1825; at the succeeding term, March, 1826, the plaintiff [**9]  procured the cause to be reinstated; up to that term no complaints are heard of. A declaration was then filed, and an imparlance granted. It was after this imparlance and as the trial approached, the defendant discovered, that notwithstanding the command of the act of, 1785, ch. 80, sec. 11, "to continue the cause until an award should be returned," that the action had abated by the death of both parties before a suggestion of the death of either on the docket. In this case, nothing is pleaded to rebut the presumption arising from a consideration of the legal rights of the parties, or the conduct of the principals, and their representatives. Why should the Court abate the action when the law directs its continuance? Why abate it when the silence of the parties towards the Court for years, remains unexplained? The law intended the parties should proceed under the reference, notwithstanding the death. To what rational cause can their silence be attributed, but the just expectation that the arbitrators would decide the controversy? If the arbitrators could not act, the parties knew that, or might have known it. There is no equity then in the plea of the defendants. The defendants should [**10]  have taken a different course. If dissatisfied with the continuance of the cause, they should have moved the Court, as the plaintiff ultimately did, and forced the plaintiff to conclude the cause. To abate the action now, destroys the right. Limitations would bar the remedy. The attempt has been made to shew the Court, that the technical ground for the abatement of actions generally, assumed here, has no legal foundation. That in referred cases, it is in direct opposition to the words of the 11th section.

It is contended moreover, that this plea of abatement came too late. It was tendered after a general imparlance. The parties were both in Court, at August, 1825. At the succeeding Court, March, 1826, the cause was reinstated for trial, and continued under a rule to plead, and a general imparlance. This was without any saving to the defendant, any exception to the writ or to the jurisdiction. 1 Chit. Plea. 307. It is true the party who pleads in abatement here, is not mentioned in the writ. The summons to appear is the writ as to him, and if he intended to plead in abatement to that summons, he should have demanded a special imparlance at August, 1825, or March, 1826. After the [**11]  entry of general imparlance, the defendant may plead in bar of the action, but not in abatement, or to the jurisdiction. 1 Chit. Plea. 308. 1 Tidd, 418. Stev. on Plea. 90, 91, 93, 393. Bank of Somerset vs. Whittington, 5 Harr. and Johns. 490. 1 Bacon, 26, 27. This plea of abatement came too late.

Gwynn, for the appellees.

He contended, that the cause abated by the death of both parties. The representatives of neither being in Court, there was no authorised party to suggest the death, nor to move for a summons. That this difficulty was caused by negligence of the plaintiff, who was the surviving party. He said that at Common Law, when there was but a single plaintiff, or a single defendant in the cause, upon the death of either, the action abated. This defect had been but partially remedied by the Act of 1785, ch. 80. When the surviving party could get in his opponent's representative, and make him a party to the cause, the action did not abate. Diligence to that extent was indispensable. It could be repeated as often as the nature of the case required, but the rule, which required one party in Court, was inflexible, and had never been departed from in practice, since the [**12]  passage of the Act of 1785. That the plea therefore which disclosed the death of both parties, before any suggestion of the death of the party first dying, and no appearance of his representative as above required, abated the action. He contended, if such was not the law, that causes affecting the estates of deceased parties, might be indefinitely continued. He maintained that the plea being filed at the next term after the re-instatement of the cause, was filed at the ordinary imparlance term, during which pleas of abatement were usually received. That this plea therefore was in time. He cited 3 Saun. 209. b. no. 6 Harr. and Johns. 388. Act of 1788, ch. 80, sec. 11.  

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

OPINIONBY:
EARLE 

OPINION:

 [*482]  EARLE, J. delivered the opinion of the Court.
Harford County Court decided this case against the plaintiff below, on a general demurrer to a plea in abatement, and, in our opinion, decided it erroneously. The Court went upon the ground, that both the plaintiff and defendant being dead, at the time of the suggestion, parties could not be made under the Act of 1785, ch. 80.
We think the parties were properly made, notwithstanding [**13]  this circumstance, although the time of making them was not strictly regular. The cause stood in the name of John Price, against Nathan Tyson, and had been referred by consent of parties, and rule of Court, and long continued on the reference docket, waiting the return of the award, before the first suggestion was made. It was made at March term, 1823, while the case was still depending on the reference docket of the Court, and this is the irregularity which we should not have sanctioned. The 11th section of the act is positive, that a case referred, shall be continued, until an award is returned and a suggestion that might have led to a discontinuance of this suit, and which actually led to making new parties to it, was out of time, and should not have been allowed. The case ought to have been reinstated in the name of the original parties, and the suggestion of the defendant's death, then made by the administrator of the plaintiff.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

27 of 34 DOCUMENTS 

THE STATE OF MARYLAND vs. WAYMAN, and WAYMAN vs. THE STATE.--Cross Appeals.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 254; 1830 Md. LEXIS 15 

June, 1830, Decided 

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

This was an action of debt, brought on the 23d of September, 1825, in the name of the State of Maryland, against Henry Wayman, on the following bond, which was duly certified by the Clerk of the Court of Appeals, to be a true copy from the original on file in his office. The defendant pleaded general performance--replication, non-performance and issue.

"Maryland, sct. Know all men by these presents, that we, Thomas Hamilton Bowie, Jesse Ray, Francis T. Clements and Henry Wayman, of Anne Arundel County, are held and firmly bound unto the State of Maryland, in the full and just sum to two thousand six hundred and sixty-six dollars and sixty-six cents and two-thirds of a cent, current money, to be paid to the said State of Maryland. To the which payment well and truly to be made and done, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated this twenty-fourth day of January, in the year of our Lord one thousand eight hundred and sixteen. The condition of the above obligation is such, that if the above bounden Thomas Hamilton Bowie, whilst [**2]  he shall continue in the office of Register of the Court of Chancery, shall, at his own proper cost and charge, find a supply of good and sufficient record books necessary for the entering up of all matters and things relating to such Register of the Court of Chancery office, and shall and will make or cause to be made and entered, true, legal and perfect records and entries, according to the truth and nature of the matter or thing requiring to be entered or recorded--and shall duly and carefully look after, sustain, preserve, repair and maintain, all the several books, papers and records now being and remaining in the said office, as also those that from time to time during his continuance in the said office shall be added thereunto, in such manner as that in case of death, or that he shall be legally dismissed from officiating longer in the said office, he the said Thomas Hamilton Bowie, his executors or administrators, shall surrender and deliver up, or cause to be surrendered and delivered up to the next person who shall succeed him in the said Court of Chancery or Register's office, all the papers and record books now being in the said Register's office, in good order and repair;  [**3]  as also all such other papers and record books, which shall be by him added in like good order and repair, with the records and entries faithfully, legally, and truly made up and entered during the time he hath officiated in the said Register's office; without favor or affection, but according to the truth, the nature of the thing and the duty of his office, and all other the duties of his said office legally, duly and faithfully discharge, according to law, and the true intent and meaning of the Acts of Assembly in such cases made and provided--that then the above obligation to be void and of none effect, or else to be and remain in full force and virtue in law."

1st. EXCEPTION. The plaintiff proved that Thomas H. Bowie, the obligor in the condition of the writing obligatory mentioned, was duly appointed and commissioned as Register in Chancery on the 23d January, 1816, and continued to hold the said office and discharge the duties thereof, without any re-appointment, until the     day of 1821. That he received no other appointment to the said office, except the one above mentioned, and continued until his death to hold and exercise the said office, under the aforesaid appointment.  [**4]  That in 1816, and every other year after he received his said appointment until his death, he omitted to record proceedings and decrees which it was the duty of the Register of the Court of Chancery for the time being, by law, to record, and nevertheless sent out and collected and received his fees for recording proceedings which never were recorded by him, and which have since been recorded by the State at the public expense, and for which the State has paid between $ 5,000 and $ 6,000. That the amount of fees improperly charged and received by the said Bowie, during the time he so held the office, amounted to the sum of about one thousand pounds current money. Whereupon the plaintiff prayed the opinion of the Court, that the plaintiff is entitled to recover in this action, for the failure of the said Thomas H. Bowie, to record all proceedings from the date of his said bond to the time of his death, which it was the duty of the Register of the said court, for the time being, to record. 1st. Because under the appointment above mentioned, he was lawfully the Register of the said court until his death, without any new appointment, and the bond in question therefore continued in force [**5]  until his death. 2d. Because the condition of the said bond, by its terms, covers the whole time he continued in office under the original appointment, or a succession of annual appointments. 3d. Because the condition is broken, if all the papers and record books which were by him added while he held the office, in manner above mentioned, were not at his death in good order and repair, with the records and entries for all that time, faithfully, truly, and legally made up and entered--which opinion and direction the Court [DORSEY, Ch. J., KILGOUR and WILKINSON, A. J.] refused to give--but were of opinion, and so directed the jury, that the defendant in this cause cannot be charged with any such alleged default of the said Thomas H. Bowie, arising subsequently to the expiration of the third week in November, in the year 1816. The plaintiff excepted.

2d. EXCEPTION. In addition to the evidence stated in the first bill of exception, the plaintiff offered in evidence, that the State had sustained damage to the amount of more than $ 4000, by the default of the said Thomas H. Bowie, as Register in Chancery, committed before the end of the third week in November, 1816; and thereupon [**6]  the plaintiff prayed the opinion and direction of the Court to the jury, that if they find, from the evidence, that the State has sustained damage to the amount of $ 4000, by the default of the said Thomas H. Bowie, as Register in Chancery, committed before the end of the third week in November, 1816, contrary to the condition of the bond, on which this suit is brought, that then the plaintiff is entitled to recover the above mentioned sum of $ 4000, notwithstanding the penalty of the said bond is only one thousand pounds. Which opinion the Court refused to give; but were of opinion, and directed the jury, that the plaintiff was not entitled to recover more than one thousand pounds, the penalty of the bond; (the opinion on this exception was given pro forma, by consent--) The plaintiff excepted.

3d. EXCEPTION. In addition to the evidence before stated in the preceding bills of exceptions taken by plaintiff, the plaintiff by its attorney offered the resolution of the General Assembly of Maryland, for 1822, No. 66. "Whereas it appears that many of the papers and proceedings in the Chancery office, remain unrecorded during the time that Samuel H. Howard, Nicholas Brewer, James P.  [**7]  Heath and Thomas H. Bowie, acted as registers of said Court, and which papers they ought to have had recorded, inasmuch as they received payment for the same by the parties interested therein; therefore, Resolved, That the present Register in Chancery be, and he is hereby authorized and required, to proceed to examine all the unrecorded papers in his office, and ascertain as near as practicable, the probable cost of recording said papers, calculating the cost at the same rate he now receives per side, for recording papers of a similar nature, and report the result of his examination to the Governor and Council, and also to the next Legislature, stating distinctly the amount it will cost to record the papers and proceedings which each of the aforesaid Registers ought to have had recorded, in compliance with the existing laws."

The plaintiff also offered in evidence the report made by the Register in pursuance of this resolution. "Chancery office, 17th December, 1823: In obedience to a resolution of the General Assembly of Maryland, passed at the last session of the Legislature, directing the Register of the Court of Chancery to report to the next General Assembly, what will be [**8]  the probable cost of recording all such papers as remain unrecorded, and which ought to have been recorded by each of the former Registers respectively, the Register begs leave to state, that in order to make such a report as appeared to him to have been contemplated by the Legislature by their resolution, he has found it necessary to examine individually, all the papers in his office remaining unrecorded. He has made this examination with great care and attention, and in the course of it has assorted the papers, and selected from the great mass of them, such as by the existing law are required to be recorded. These papers, which comprise about three-fourths of the whole, consist of all decrees passed since the year 1785, which direct a sale, conveyance or partition of lands, and real estate generally, for the recording deeds, and for the transfer of title under special acts of Assembly. The following as the result of his examination, the register respectfully reports for the consideration of the Legislature. The probable cost of recording such of the above mentioned papers as ought to have been recorded by Samuel Harvey Howard, Esqr. is estimated at $ 4,500. The probable cost of such [**9]  as ought to have been recorded by Nicholas Brewer, Esqr. is estimated at $ 3,000. The probable cost of recording such as ought to have been recorded by James P. Heath, Esqr. is estimated at $ 1,500. The probable cost of recording such as ought to have been recorded by Thomas H. Bowie, Esqr. is estimated at $ 1,500. All which is respectfully submitted. Ramsay Waters, Reg. Cur. Can."

And also offered in evidence the resolutions of 1825, No. 29, 73, 117; and the resolution of 1823, No. 14, and the resolution directing the Register to deliver the papers.

"No. 29. Resolved, That the Governor and Council be, and they are hereby authorized and required, to take under their superintendence the papers remaining unrecorded in the Chancery Office, and which should have been placed on record by Samuel H. Howard, Nicholas Brewer, James P. Heath and Thomas H. Bowie, Esqrs. late Registers in Chancery.

Resolved, That the governor and council be, and they are hereby authorized and required, to cause such of said papers as are required by law to be recorded, to be registered as soon as may be, in proper books to be procured for that purpose, and that such books of registry, after they [**10]  are completed, be deposited and remain among the archives of said office.

No. 73. Whereas by resolutions of the present Assembly, the governor and council are authorized to procure certain valuable papers remaining in the Chancery office to be recorded: And whereas the governor and council entertain doubts of their authority under said resolutions to carry into effect the intention of the General Assembly in passing them; therefore,

Resolved, That the Governor and Council be, and they are hereby authorized and empowered, to contract in the name of the State, with some person or persons of integrity, understanding, and other proper qualifications, to discharge the labor and duties mentioned in said resolutions; and the Governor and Council are hereby authorized to draw quarterly and yearly as the work progresses, on the Treasurer of the Western Shore, which drafts the said treasurer is hereby directed to pay for such sums as may be necessary to meet the demands of the persons engaged in said work.

No. 117. Resolved, That the Register in Chancery be, and he is hereby authorized and required, before he deliver to the Governor and Council, or their order, any paper or papers [**11]  in his custody, which by resolutions of the present General Assembly, the executive may be authorized to withdraw from his custody, to demand and receive a receipt, which shall sufficiently identify the said several papers and the cause or causes to which they relate; and the said receipt shall be sufficient in every case to discharge him from all responsibility on account of the safety or preservation of said papers, until the same shall have been returned to his charge and custody.

No. 14. Resolved, That if the said Registers in Chancery, clerks of the Court of Appeals, clerks of the several County Courts, Registers of Wills in the several counties of this State, and the clerk of the City Court of Baltimore, who have failed to record such papers as by them respectively ought to have been recorded, shall not complete the records of the same on or before the first day of January, in the year eighteen hundred and twenty-five, then that the Governor and Council be, and they are hereby authorized, to direct the Attorney General, to institute such suit or suits as may be necessary for the recovery of such demands as may be due by each or all of said Registers in Chancery, clerks of [**12]  the Court of Appeals, clerks of the several County Courts, Registers of Wills in the several counties of the State, and clerk of the City Court of Baltimore.

Also the following proceedings of the executive: "Saturday, January 4th, 1826. The Council met. Present, His Excellency Joseph Kent, Governor, and the Honorable Joseph Gabby, William Stewart, Robert H. Archer, Daniel Martin and John H. Steel, members of the Council. William D. Beall, George Brown, Isaac Hines, Henry Hobbs and Joseph Mayo, appointed to record the papers mentioned in the resolution of the present session, at twenty-five per cent. less than the law allows for the performance of such labors; the whole to be executed under the superintendence of the Register of the Court of Chancery, who shall be answerable to the executive for the faithful execution of his trust, and receive as full compensation therefor twenty per cent. on said allowance, to be paid by deductions at that rate from the work done by each person appointed as above. Stationary to be furnished by the executive."

The following communication was received from Ramsay Waters, Esq. Register in Chancery, which was ordered to be entered upon the records [**13]  of proceedings, viz:

"Chancery Office, 6th March, 1826. To the Honorable the Executive of Maryland: Gentlemen. A communication from your honorable body has been handed to me this morning, and I have given to it the most respectful consideration. I understand the communication to be an offer from the executive of compensation for certain services which they wish me to perform. The nature and extent of those services, and the heavy responsibility they impose, have been well considered. I think the proposed compensation wholly inadequate, and therefore cannot consent to accept. Respectfully your obedient servant, Ramsay Waters."

Whereupon the following proposition was made, adopted and signed by the Governor and Council, viz: "Council Chamber, Annapolis, March 6, 1826. Ramsay Waters, Esq. Register in Chancery, having refused to accede to the proposition made him by the executive, for superintending the recording of the Chancery papers mentioned in said proposition, the executive offered the same terms to Mr. Thomas Culbreth, Clerk of the Council, who accepted thereof, and is hereby ordered to take the papers mentioned in the resolutions of the General Assembly, to be recorded [**14]  under his charge and superintendence, in such parcels as may be necessary for the due performance of the work, the same to be regularly listed and receipted for, and not to be taken out of the state house, and to be at all times subject to the examination of the Register in Chancery." April 20th, 1826.--"Ordered, that Ramsay Waters, Register of the Court of Chancery, be authorized and required to deliver to each and any of the gentlemen appointed by the executive, namely, William D. Beall, George Brown, Isaac Hines, Henry Hobbs and Joseph Mayo, to record the unrecorded Chancery papers, under resolutions of the General Assembly, such portions of the said papers, dockets and other books relating thereto, as may be necessary to enable them to proceed with the said recording upon the order of Thomas Culbreth, under whose superintendence the papers have been placed by the executive."

No. 1. Extract from the proceedings of the Executive, May 7, 1825:

"Ordered, That the clerk write to the Attorney General, and direct him to commence suits against all Registers in Chancery, Clerks of the Court of Appeals, Clerks of the several County Courts, Registers of wills, and Clerks of the [**15]  City Court of Baltimore, who have failed to record such papers as by them respectively ought to have been recorded, who have not completed the same agreeably to the resolution, No. 14, passed at December session, 1823." And also offered in evidence the following letter to the Attorney General:

"In Council, Annapolis, May 7, 1825. Sir,--In compliance with a resolution of the General Assembly, passed at December session, 1823, No. 14, you are hereby directed to institute such suit or suits as may be necessary for the recovery of such demands as may be due from each and all of the officers mentioned in the said resolution, who have failed to record such papers as by them respectively ought to have been recorded, and who have not completed the records of the same. I have the honor to be, with due respect, your obedient servant, Thomas Culbreth, Clk. of the Council. Thomas Kell, Esqr. Attorney General."

And the plaintiff also offered in evidence the original records made under the said resolutions and proceedings, and which have been by the said Thomas Culbreth returned to the Governor and Council and accepted by them, and now remain in the council chamber for the purpose of binding [**16]  up before they are deposited in the Chancery office; and offered in evidence that they had cost the State between twenty-seven and twenty-eight thousand dollars, which has been paid by the State; and that the proceedings in Chancery before the end of the third week in November, 1816, required by law to be recorded by the said Thomas H. Bowie, and left unrecorded by him, have been recorded under the said resolutions, and accepted by the Governor and Council, and deposited in the council chamber as aforesaid; and produced the said records here in Court, and offered in evidence that these last mentioned records cost the State about $ 725, which it has paid to the persons employed to make the said records in the manner above mentioned. The defendant offered in evidence from the said records so produced, that many of the said cases improperly omitted to be recorded by the said Bowie, were suits between individuals to which the State was not a party, and in which the State had no other interest than what belongs to it as the guardian of the rights of its individual citizens. Whereupon the defendant by his counsel, prayed the Court to instruct the jury, that the plaintiff in this action is [**17]  not entitled to recover from the defendant damages for the omission by Thomas H. Bowie, to record proceedings and decrees in suits to which the State was not a party, and on account of which nothing was paid to the said Bowie by the State, or by him demanded of it. Which instruction the Court refused to give. The defendant excepted.

4th. EXCEPTION. In addition to the evidence stated in the preceding bills of exceptions, the defendant to support the issue on his part, proved by Ramsay Waters, Register of the Court of Chancery, that there were two record books in the Chancery office, in which were recorded proceedings required to be recorded by Mr. Bowie. That he has searched for them in the office repeatedly, but never at the request of the defendant or his counsel, and that they are not now in the office; that he missed them out of the office last summer; that he does not know by whom they were taken out; that he has never made any particular search for them out of the office, because he supposed that they were in the hands of some of the persons engaged in recording the Chancery records above mentioned, and supposed they were in the hands of Joseph Mayo. And also offered in evidence [**18]  by the said Mayo, that he does not recollect taking out the said books, and does not know that he ever saw them out of the office; that he saw some dockets in the committee room of the house of delegates, and these two record books may for aught he knows have been among them; that he supposed that all of these books had been returned to the Chancery Office, but does not know that they were; that he went to-day to examine the book cases in the committee room of the House of Delegates, but he found that the book cases were locked up, and the key said to be in the possession of Gideon Pearce, the Clerk of the House of Delegates, who resides in this place, but who is now on the Eastern Shore, and witness could not therefore make the examination he wished. The plaintiff also offered in evidence by Charles Thompson, a Clerk in the Office of the Register in Chancery, and who has been engaged as clerk in that office for three years, that more than three years ago he saw one of the record books of the time of Thomas H. Bowie, in the library in the State House, where they were recording the Chancery proceedings under the resolution of the Legislature; that witness was not at that time a clerk [**19]  in the office of the Register in Chancery, and does not know what has since become of the book, and has never enquired for it. The defendant then offered in evidence by Louis Gassaway, the principal clerk in the office of the Register in Chancery, that the defendant yesterday, while his trial was going on, applied to him about the two record books made in Mr. Bowie's time; and the witness informed the defendant that they were not in the Chancery Office, but he believed that either Joseph Mayo, who was the principal agent under Mr. Culbreth for superintending the recording of the Chancery papers under the resolution of the Legislature, or some of those engaged in recording the Chancery papers, had them. The defendant further offered in evidence that he then applied to said Mayo, who said that they might be among the books and dockets that were in the committee room of the House of Delegates, which had been used by the clerks when employed in recording the Chancery papers, and that he would examine there for them; that witness went to examine last evening, but found the book cases locked, and learned on inquiry that Gideon Pearce the clerk of the House of Delegates, who has the key of [**20]  the said book cases, is now on the Eastern Shore of this State, and witness was therefore unable to make the examination, and does not know whether the books are there or not. And after the aforesaid evidence was given, the defendant by his counsel, offered to read in evidence from one of the original minute books of the Court of Chancery, the following reports and orders:

"In Chancery, September Term, 1818.--On examination of the dockets and files in the office of the Register of the Chancery Court, laid before me in pursuance of the order of the 2d instant, it is ordered, with respect to the decrees, papers and proceedings in the time of Thomas H. Bowie, the present register, remaining unrecorded, that six hundred sides of the said decree, papers and proceedings from December term, 1815, ought to be recorded from the present time to the 31st instant, inclusive, an entry of which portion and period assigned the said register, is directed to make; and at the termination of the period above prescribed, to wit, on the first day of December term next, being the first day of the month, the book is to be brought before me for my determination, whether the records are made up in the [**21]  manner required by the act of 1817, ch. 119. W. Kilty, Chr. November 5th, 1818."

"In Chancery, December Term, 1818.--On the first day of December, 1818, that being the first day of this term, the Register submitted to the Chancellor the following report, in obedience to the aforegoing orders. To the honorable William Kilty, Esquire, Chancellor of Maryland. In obedience to the several orders of your honor, dated the 5th day of November, 1818, relative to the decrees, papers and proceedings in the Court of Chancery: 'That he now submits to your honor, for your inspection, two record books, which are marked, the one Liber. T H B. No. 1, and the other marked Liber, T H B. Sales, No. A--which books he has procured and in them recorded as he was directed, the number of sides of the decrees, papers and proceedings of the Court, during the time he has been Register, and remaining unrecorded, pointed out by your honor in that order, which relates to himself." Thomas H. Bowie, Reg. Cur. Can.

"In Chancery, December Term, 1818.--On considering the above and within report, and the books therein referred to, (relating to the decrees, papers and proceedings of Thomas H. Bowie, the present [**22]  Register,) being brought before me according to the order, passed November 5th, 1818, I do determine from what appears, that the records are made up to the time, appearing in said books, in the manner required by the Act of 1817, ch. 119, sec. 6. It is further ordered, with respect to the decrees, papers and proceedings of Thomas H. Bowie, the present Register, that from this date to the first day of March term next, there ought to be recorded 4000 sides, commencing from the termination of what has been done under the former order. William Kilty, Chr. December 1st, 1818."

And the defendant then offered in evidence similar reports of the Register, and orders of the Chancellor thereupon, in the years 1819 and 1820.

To the admissibility of which said reports and orders in evidence for the purpose of proving that the said Thomas H. Bowie, had recorded any of the proceedings before the third week in November, eighteen hundred and sixteen, which he as Register in Chancery was bound by law to record, and which by the records produced appear to have been recorded under the direction of the Governor and council in the manner before stated, the plaintiff by his counsel objected--and [**23]  the Court sustained the objection, and refused to permit the aforesaid entries in the said minute book, to be read in evidence for the purpose aforesaid. The defendant excepted.

5th EXCEPTION. In addition to the evidence stated in the preceding bills of exceptions numbered 1, 2, 3 and 4, the defendant produced as a witness, Ramsay Waters, Esq. the present Register of the Court of Chancery, who succeeded T. H. Bowie, and has been the Register ever since, and by him proved that in the year eighteen hundred and     he was directed by the General Assembly to report to the succeeding Legislature, an estimate of the probable costs of making up the records of the several Registers, and among the last, those of said T. H. Bowie; that he performed the duty with as much care and accuracy as he could, having till the next meeting of the General Assembly to complete it, and that according to the most accurate estimate he could make, the costs of making up the records of said office, whilst said T. H. Bowie was the Register, to wit, from 1st January, 1816, to February, 1821, would be $ 1500. And the defendant then offered to prove by said Ramsay Waters, that according to that estimate it [**24]  would have cost nothing to complete the records, for not completing which, this suit is brought, because the records for that period of time had been all correctly made up by the said Bowie, in his life-time--to the admissibility of such last mentioned parol testimony so offered, the plaintiff by his counsel objected--and the Court was of opinion that the same was inadmissible and rejected the same. The defendant excepted.

6th EXCEPTION. Upon the whole evidence stated in the preceding bills of exceptions, the plaintiff by his counsel prayed the opinion of the Court, that the books produced being records of the proceedings in the Court of Chancery, made out and recorded by the persons authorized and required by law to record the same, are of themselves prima facie evidence, that the papers and proceedings were such as the law required to be recorded by the said persons--and inasmuch as the defendant is liable for the default of the aforesaid T. H. Bowie, in not recording the proceedings in the Court of Chancery, which it became his duty between the date of his bond and the end of the third week in November, 1816, to record, that the plaintiff is entitled in this action to recover [**25]  the damages sustained by the State, for such default of the said T. H. Bowie, and that the measure of damages is the sum paid by the State for recording the proceedings which it became the duty of the said Bowie, during the period last above mentioned to record, unless the defendant can shew by the inspection of the said books or other records of the Court of Chancery, that papers and proceedings have been illegally recorded in the books above mentioned, or that the State has paid an unreasonable sum for the said recording. To the giving of which instruction the defendant by his counsel objected, for admitting the right of the State to sue for the expenses incurred in the completion of said records--yet the whole of those expenses have been incurred since the institution of this suit. Because the papers which have been transcribed are not records, and have no right to be considered as such--and because said papers were selected by the persons who were merely appointed to transcribe the papers required by law to be recorded, and were not authorized to decide what papers ought to be recorded, and by the terms of the contract were to be paid according to the number of sides which they [**26]  might record--and because the bond upon which this suit is brought, was not required by the Constitution, or any existing law, and therefore the defendant is not responsible under said bond, for the conduct of said Bowie, as Register of the Court of Chancery, for any period of time--and because the original papers have not been produced, and there is no proof that the copies have ever been examined or compared with the originals. But the Court gave the instruction as prayed by the plaintiff's counsel. The defendant excepted. Verdict and judgment for the plaintiff for $ 652 12; both parties appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

All appointments to office, under the constitution, by the executive of the State, are made by the authority of the 40th, 48th and 49th sections, and the Register in Chancery not being commissioned during good behavior, is necessarily an officer of annual appointment, under the 49th section.

The tenure of his office being limited, he cannot continue to act after his term expires, except in the single instance of the appointment of a successor, in which case he may act until such successor, commissioned in his stead, is qualified. If re-appointed, he may continue to act without any new commission or qualification, but unless re-appointed he is not legally an incumbent of the office, and cannot lawfully perform any of its duties.

Where the constitution limits the duration of an officer to a certain term, no irregularities in the proceedings of the appointing power, can extend it beyond that period.

By the 49th article of the Constitution of Maryland, "all civil officers of the appointment of the Governor and Council, who do not hold commissions during good behavior, shall be appointed annually in the third week in November; but if any of them shall be re-appointed, they may continue to act without any new commission or qualification; and every officer though not re-appointed shall continue to act until the person who shall be appointed and commissioned in his stead shall be qualified." Under this clause, B was commissioned as Register in Chancery, in January, 1812, and gave bond on the 24th January, 1816, in conformity to the Act of 1742, ch. 10, the condition of which was such, that "if above bounden B, whilst he shall continue in the office of Register, shall," &c. discharge various enumerated duties, and that in case of death, or that he shall be legally dismissed from officiating longer in the said office, he or his executors, &c. shall surrender to his successor all the records, &c. "made during the time he hath officiated in the said Register's Office." He continued to hold the office and discharge its duties without any re-appointment, until 1821, and omitted to record proceedings and decrees of the Court, of which it was his duty to keep records, during every year he was in office. These records were afterwards completed at the public expense, and an action was brought on his bond against his security, to recover the money expended by the State: HELD, that the bond was executed with an express reference to the provisions of the Constitution, and that its condition did not create a responsibility beyond them; that its object was to engage for a faithful discharge of duties as long as they could be legitimately performed under the official grant and no longer, and that the defendant was responsible under the bond for the conduct of B, as Register of the Court of Chancery, to the expiration of the third week in November, 1816.

A recital in the condition of a bond may restrain indefinite expressions used in it, and adapt them to the intention of the parties.

Where a surety is sued upon a bond, the utmost that can be recovered is the penalty, and legal interest thereon, by way of damages for the detention of the debt from the time the debt is demanded--that is the import and effect of his contract, and his accountability cannot be stretched beyond it.

It is not in every case that interest by way of damages is to be recovered on the penalty, and when the case occurs, it may be considered as an exception to the general rule, which limits the recovery by the penalty in the bond.

Where a jury is called upon to assess the damages for breaches assigned or proved in the condition of a collateral bond, and are wholly unauthorized by the issue to find damages for the detention of the debt, a recovery must be limited to the penalty of the bond.

Where various persons have distinct demands secured by the same bond, a recovery and payment in one suit can be no bar to other actions, in which the several claimants may recover to the same extent, and can only be limited by the penalty, and in particular cases by the penalty and interest.

In an action upon the official bond of the Register of the Court of Chancery by the State, for omitting to make the proper record books, a recovery may be had for omissions to record proceedings in suits to which the State was not a party, and on account of which nothing was paid to such Register by the State. The measure of damages is the sum paid by the State for doing that, which the officer should have done.

The records of our Courts of Justice are to be considered as public property, and so important is it to the community, that they should be made up correctly, and preserved with care, that when a neglect in these particulars occurs, an obligation is imposed on the State to supply the defect, and have the work done at the expense of the treasury. The defaults of the officers, are thus visited on the public, and their bonds afford the only means of security for the State to resort to against loss.

Evidence which leaves the mind in doubt, whether by a further search, certain record books sought for, might not have been regained, is not sufficient to let in parol evidence of their contents.

Where it was the duty of the Register in Chancery to make and keep records of the proceedings of his Court, his report to the Chancellor that he had made such records, and the statement of the Chancellor on the minutes of the Court, that such records had been made up, do not constitute primary evidence to shew that such records were made, and in the absence of satisfactory proof of the loss of the record books themselves, are not admissible as secondary evidence of the same fact, nor is the estimate of a subsequent Register, made by the direction of the Legislature, of the sum it would require to furnish a substitute for such record books, nor his evidence that the same had been all correctly made up, admissible under such circumstances.

The constitution is to be construed with reference to the laws existing at its adoption and the practice under them.  

COUNSEL:
Tany, (Atty. Genl.) and Boyle for the State,

Contended, on the first bill of exceptions, that the plaintiff is entitled to recover, in this action for Bowie's failure to record all proceedings from the date of his bond to the time of his death, which it was the duty of the Register of the Court of Chancery to record.

1. Because under the appointment as Register of the Court of Chancery, he was lawfully the Register of the said Court until his death.

2. Because the condition of his bond as Register, by its terms covers the [**27]  whole time he continued in office, under the original appointment, or a succession of annual appointments.

3. Because the condition is broken, if all the papers and record books, which were by him added, while he held the office in manner above mentioned, were not, at his death, in good order and repair, with the records and entries for all that time, faithfully, and truly, and legally made up, and entered.

On the second bill of exceptions, they insisted, that the State may recover, beyond the penalty of the bond, if more than the penalty of the bond should be proved to be due.

The great question arises on the first exception, which involves the enquiry, whether the office of the Register of the Court of Chancery, is an annual appointment. According to the practice, the appointment is not annually made; it follows, therefore, if the office is one to which the incumbent must be annually appointed, that for a long time since the adoption of the Constitution we have had no Register. They referred to the Act of 1716, ch. 1, sec. 1, 3, 5; 1742, ch. 10, sec. 2, 3, 7--Constitution, Art. 10, sec. 49. If the language of the Constitution is doubtful, then the contemporaneous construction,  [**28]  and continued practice of those who framed it, is entitled to great consideration. According to the Constitution the old officer is to continue to act, until a new one is appointed and qualified, and he holds in virtue of the old appointment--if then he may be required to act beyond the third week in November, it follows that his bond will continue answerable. If his office continues, his responsibility, and his bond must continue--unless you disregard the words of the Constitution, which provides for the continuance in office of the old officer, you must say that he will so continue, and remain responsible, until a successor is appointed, and qualifies, no matter how long the period may be. The security, when he becomes such, must be supposed to look to this provision of the Constitution.

But if the appointment is annual, still the bond is good for more than one year. The bond is in conformity with the act of 1742, and it was competent to the Legislature notwithstanding the nature of the appointment, to require a bond for more than one year: they referred to the act of 1823, ch. 195. For what period was the bond intended to be given? This is a question on the construction of [**29]  the bond. 2 Maul. and Selw. 369. Under the act of 1823, ch. 195, a bond would be good for two years, because the Legislature have directed that it shall be given for two years. Under the act of 1742, its obligation covers the whole period; the Register may remain in office, because such is the clear meaning of the act, and the power of the Legislature to require, and the party to give such a bond, can hardly be doubted.

The right to recover beyond the penalty of the bond, is the question presented by this exception. The Act of 1825, ch. 208, sec. 1, creates this difficulty--a surety in a public bond, cannot discharge himself by paying the penalty--the object of requiring the bond, is to provide personal security. The small amount of the penalty of Constables' bonds, being greatly below the sums which ordinarily must pass through their hands, shows that the Legislature never intended to limit the responsibility of the surety to the penalty.

Can it be contended, that in an action by a party to a constable's bond, that he or his sureties could discharge themselves by proving the payment of the penalty to a third person. The principal question on the 6th exception is, whether [**30]  the Registers of the Chancery Court are required to give bond? The acts of the provincial legislature are in force, unless inconsistent with the provisions of the constitution. The 52d section of the constitution could not have been designed to disable the legislature from demanding a bond. The 10th section of the constitution authorises the putting of office bonds in suit, yet the only officer expressly required by the constitution to give bond, is the sheriff. They referred to the acts of 1800, ch. 82, sec. 2, and 1801, ch. 60. All the laws since the constitution requiring bonds, are invalid, if those prior to it are repealed by it.

3. Can the State recover, otherwise than as an individual, for suits in which she is interested? Act of 1742, ch. 10, sec. 7. The error on this subject is, in drawing our analogies from the powers of the king of England. The State can have no separate interest, as the king has. She is but a trustee, a mere agent, having no interest of her own, her interests, being the interests of the people. How could an injury, similar to the one now complained of, be redressed by an individual? The individual could not authorise the records to be made up; the [**31]  expense of doing which could alone furnish the measure of damages. The State is interested in quieting titles, and preserving the harmony of the public. The act of 1742 provides for the disposition of the penalty of the bond. The papers in the office are not the property of the litigating parties. They are filed there for the benefit of those who claim under them, and cannot be withdrawn after being once filed. By the act of 1742, the Register was not only to keep the records in repair, but he was bound to record all the papers that were filed in his office for that purpose.

The question upon the 4th and 5th exception, is upon the admissibility of secondary evidence to prove the contents of a record. The record books were, of course, the best evidence, and the question is upon the sufficiency of the foundation for the introduction of secondary evidence; reasonable diligence to procure the best proof, was not employed. There was no evidence of a careful search in the office, but if there was, yet as the books were seen out of the office, a mere search in the office, would not be reasonable diligence. The meaning of the rule that the best evidence must be sought for is, that you [**32]  are to look where you are likely to find the thing sought after. The place where the record is kept, is not, of course, the place in which it is likely to be found. 1 Jackson vs. Hasbrouck, 12 Johns. Rep. 194. The orders of the Chancellor could not be evidence per se. They are passed upon an inspection of the record. His knowledge of the fact is derived from this examination. These orders and minutes are not judicial acts, and the fact that they certify the existence of the books, shows that there is better evidence than they themselves furnish.

Were the papers from the Council Chamber, records? The resolutions of the legislature, under which these papers were recorded, only authorised the withdrawal, and the Register to deliver such papers as the law require to be recorded. A record is made by transcribing papers authorised to be recorded by law, by persons who are authorised to do so, by law. Records are not required to undergo a previous examination before they are entitled to the consideration due to them as such. The papers from the Council Chamber were not offered as conclusive, but merely prima facie evidence, and the defendants were bound to have shown, in order to destroy [**33]  their effect, either that the papers were not correctly copied, or that they contained proceedings not proper to be recorded. In regard to the objection, that the money was not paid, until after suit was brought, they insisted, that the right to sue, is for the breach of official duty;--it is that which gives the cause of action, and the money paid, furnishes the measure of damages; and as these papers were recorded for twenty-five per cent. less than the law allows for such services, the defendant cannot complain of a measure so furnished.

Magruder and Brewer for Wayman--on Wayman's appeal.

1. The Registers in Chancery, are not legally required to give bond. 2. The State has no right to sue for the omission to record any case in which it is not a party, or interested in the event of the suit. 3. The minute books offered in evidence were primary, and the best evidence that could be offered to prove, that the records of the year 1816, were duly recorded by the said Thomas H. Bowie. 4. That the book, and parol testimony offered, ought to have been admitted, if secondary evidence only, it being sufficiently shown that recourse could not be had to the original records. 5. That [**34]  the books produced are not prima facie evidence; that the papers and proceedings are such as the law requires to be recorded, and the amount paid by the State, is not the proper measure of damages. 1. Because the said books are not records. 2. Because the papers were selected by the persons appointed to transcribe the records, and who were not authorised to decide what papers ought to be recorded, and who were to be paid according to the number of sides transcribed. 3. Because the original papers have not been produced, and there is no proof that the copies have been examined and compared with the originals. 4. That the State is not entitled to recover in this action, the amount paid for recording said papers, because the whole was paid after the institution of this suit. 1. Officers, as a matter of course, are not required to give bond; there must be some law requiring it, and neither the constitution, or law requires it, in the case of the Register in Chancery--Section 52 prescribes his qualifications, but it is silent in regard to a bond. Sheriffs are directed to give bond, and if it had intended that the Register should do so, a similar requisition would have been adopted in regard [**35]  to that officer. No bond was ever given by a Register, from the adoption of the constitution, until 1811. 2. But if a bond is necessary, still the State can only recover for breaches in reference to cases in which she is a party, or is interested. The papers in the Chancery office are the property of the parties, until they are put on the record; until then the State had no interest. They referred to the acts of 1716 and 1742. The 5th section of the act of 1716 authorises the State to sue only when the records are not in repair, and by the same section, individuals are empowered to sue for damages sustained before the proceedings are recorded.

The 4th and 5th exceptions presents the question of the nature of the evidence, which the defendant is to produce, that the papers have been recorded. The object in offering the orders and minute book, was not to prove the contents of the record books, but to show the existence of such books. In controversies of a civil nature, the record books cannot be produced; their contents can only be proved by exemplified copies. The contents of a record can only be proved by the book itself, or a copy; because the contents cannot be carried in the [**36]  memory, but proving the existence of the book, is a different affair. The proof that the proceedings in question have been recorded, is that of the very officer to whom the act of 1817, ch. 119, sec. 6, had confided the duty of prescribing those that should be recorded. To show that the evidence offered, if regarded merely as secondary, was admissible, they referred to 12 Johns. Rep. 194.

On the appeal of the State, they contended, 1. That the appointment was an annual one, but if not annual, still the bond was only good for one year. Officers here, since the adoption of the constitution, hold as they do in England. There is no such thing in the State, as an officer holding at the pleasure of the government. They all hold, either during good behavior, or their appointments are annual. The 48th section of the constitution prescribes the tenure by which offices are to be held, and the 49th speaks of the bonds to be given. The office of Register is not among those which are to be held during good behavior. The commission of the Register must expire on the third week in November in each year, and being an annual appointment, the sureties are only liable for one year. Union Bank of [**37]  Maryland vs. Ridgely, 1 Harr. and Gill, 324, 328, 432. Bonds to the State are to be construed according to the intention of the parties, as bonds to individuals. Lord Arlington vs. Merrick, 3 Saund. 414. 2. But if the office is not annual, still the bond is good but for one year. That part of the constitution which speaks of the re-appointment, says nothing about the continuing responsibility of the old bond. It dispenses with a new commission and a second qualification, and it is to be supposed, that if they intended to dispense with a new bond, they would have so provided. Upon the question of the liability of the bond for more than the penalty, and to show that it cannot be liable for more, they referred to Lansdale vs. Church, 2 Durnf. and East. 388. White vs. Sealy, 1 Doug. 49. Wilde vs. Clarkson, 6 Term Rep. 303. 1 Atk. 79. Tew vs. Earle of Winterton, 3 Bro. Ch. Cas. 489. Brangwin vs. Perrott, 2 Wm. Black, 1190. 2 Mar. Rep. 221. Wood vs. Wade, 2 Stark. Rep. 167. 1 Marsh. Va. Rep. 26. Arnold vs. U. States, 9 Cranch, 109--Act of 1742. ch. 10.  

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

OPINIONBY:
EARLE 

OPINION:

 [*277]  EARLE, J. delivered the [**38]  opinion of the Court.
On the trial of this cause in Anne Arundel County Court, both parties took exceptions, and have appealed to this Court. We will first decide on the exceptions taken by the State, and then turn our attention to those signed at the instance of the defendant.
The suit was instituted on an office copy of the bond of Thomas H. Bowie, late Register in Chancery, against Henry Wayman, one of his securities. The bond was entered into when Thomas H. Bowie was first appointed to the office, on the 24th day of January, 1816, and he continued to act as Register until his death, in 1821, without being 

 [*278]  re-appointed by the Executive, or having renewed his obligation to the State: and the first question that presents itself is, can the plaintiff recover in this action, for the failure of Thomas H. Bowie to record all proceedings from the date of the bond, to the time of his death, which it was the duty of the Register of the Court of Chancery for the time being to record?
This general question brings into immediate view the constitutional point in the cause, as well as the construction to be given to the contract contained in the obligation [**39]  which is the ground of the action. The one will be disposed of by a recurrence to the constitution itself, and the other by an examination of the language of the condition of the bond, in connection with the act of Assembly under which it was given.
All appointments to office under the constitution, by the executive of the State, are made by the authority of the 40th, 48th and 49th sections; and it not being pretended that the Register in Chancery is commissioned during good behavior, he is necessarily an officer of annual appointment, under the 49th section. The tenure of his office being limited, he cannot continue to act after his term expires, except in the single instance of the appointment of a successor, in which case he may act until such successor, commissioned in his stead, is qualified. If re-appointed, he may continue to act without any new commission or qualification, but unless re-appointed, he is not legally an incumbent of the office, and cannot lawfully perform any of its duties. This is the plain interpretation of the constitution; and in arriving at its meaning, our attention has been confined to the instrument itself, and we could not think ourselves at liberty [**40]  to regard the devious course which is said heretofore to have been pursued in relation to the appointment of this officer. The constitutional grant limits the duration of the office to a certain term, and no irregularities in the proceedings of the appointing power, can extend it beyond that period. The idea so much insisted 

 [*279]  on, of continuing office without a re-appointment, until a new appointment is made, it is supposed has grown out of these deviations from the constitutional law, and therefore cannot receive the sanction of this Court.
The parties to the bond, executed it with an express reference to the provisions of the constitution, as thus expounded; and if its language could create a responsibility, not comprehended within them, we do not think that the expressions of this contract operate such an effect. The condition rightly and properly pursues the form the act of 1742 prescribes, and its words that seem to look to an extended responsibility, are, "whilst he shall continue in the office of Register of the Court of Chancery," "and during the time he hath officiated in the said Register's office;" and these, we are clearly of opinion, are to be construed to relate [**41]  to the time the officer lawfully continues in his office, and not to a period when he holds it without authority. The provisions of the constitution form the basis of the contract, and like the recital in the condition of a bond, restrain the indefinite expressions used in it, and adapt them to the intention of the parties. What this intention was at the time of making the contract, cannot be mistaken. It evidently was, to engage for a faithful discharge of duties, as long as they could be legitimately performed under the official grant, and no longer.
The question we have to decide in the second exception taken by the State is, whether the plaintiff could recover in the action a sum larger than the penalty of the bond sued upon. This subject is not without its difficulties, and they have arisen chiefly from discordant adjudications in reference to it. We will not attempt to point out these discordancies, but proceed at once with an expression of our own opinion, formed upon reflection, and on an attentive review of all the authorities we had an opportunity to examine.
When the penalty of a bond is sued for against a surety, the utmost that can be recovered is the penalty, and [**42]  legal interest thereon, by way of damages, pro detentione debiti, 

 [*280]  from the time the debt is demanded. This is the import and effect of his contract, and his accountability cannot be stretched beyond it. In this position we are fully sustained by many authorities, but by none more effectually than by 1 Wm. Saund. 58, note 1, and Harris vs. Clap, et al. 1 Mass. 308. This was an action against Clap and surety, on an arbitration bond, in the penal sum of $ 5000, conditioned to pay an award of $ 4618 62, which had remained so long unpaid, that the interest carried the amount greatly beyond the penalty of the bond. Under a rule of reference in the Court of Common Pleas, a judgment had been entered up on the award against Clap: he removed the case to the Supreme Court, on a petition of review, which had been dismissed. In the suit on the arbitration bond, Clap and his surety confessed the forfeiture of the obligation; and the question made was, what sum the plaintiff was entitled to recover against the defendants. The judges delivered their opinions at large, and determined that the judgments should be entered for the penalty of [**43]  the bond, and interest thereon, by way of damages, for the detention of the debt from the time it was demanded by the writ; taking care that it should not exceed the sum due on the award, which was in truth and conscience the plaintiff's demand; and the chief judge declared, that in no case could the plaintiff's demand be allowed to overrun the penalty and interest thereon.
In the case under consideration, if the Court below had granted the plaintiff's prayer, sanction might have been given to a recovery opposed to this case of Harris vs. Clapp, et al. and as we believe, to several other authorities on this doctrine, that could easily be averted to. The plaintiff might have recovered $ 4000 or £  1500, notwithstanding the penalty and interest fell greatly short of that sum. The prayer, however, was refused, and we entirely approve of the opinion given by the Court, which declared, that the plaintiff was not entitled to recover more than £  1000, the penalty of the bond. It is not in every case that interest by way of damages is to be recovered on the penalty: and when the 

 [*281]  case occurs, as it most commonly does where the obligee is plaintiff, or is asking in some form [**44]  for relief, it may be considered as an exception to the general rule, which limits the recovery by the penalty of the bond. 3 Caine's Rep. 49. 1 Doug. 48. 2 Wm. Black. 1190. 6 Term Rep. 303, (no.) Equity Cases, 92. 3. Sergt. and Lowb. 297. That the recovery in this action was properly so limited is apparent to us, when we call to mind that the question arose on a prayer to instruct the jury, who were to assess damages for breaches assigned or proved in the condition of a collateral bond, and were wholly unauthorized by the issues to find damages for the detention of the debt. Over the last they had no cognizance, and it cannot in any way be received in this case, as a subject for the instruction of the Court.
We have a word or two more for this branch of the case, before we dismiss it: We have to beg that our proposition may not be misunderstood. When we state, that the responsibility of a surety cannot be extended further than the penalty of the bond, with interest thereon, by way of damages; our meaning is, to apply it to a question of recovery in a single case, and in no manner to affect the rights of other persons, who [**45]  may have just grounds to sue the same bond. If they have distinct demands, it is clear, that a recovery and payment in one suit can be no bar to other actions, in which the several claimants may recover to the same extent, and can only be limited by the penalty: and in particular cases, by the penalty and interest, as in Harris vs. Clap, et al.
Having decided on the exceptions taken by the State, we will now turn our thoughts, for a short time, to the four remaining exceptions, signed at the instance of the defendant. In the third exception the defendant's prayer is laid at the root of the action, and denies the State's right to maintain it. The plaintiff exhibited before the jury, sundry resolutions of the Legislature, authorizing the Governor and Council to contract, in the name of the State, 

 [*282]  with some person or persons, to record the unrecorded papers in the Chancery office: and offered the proceedings of the executive under the resolutions. And also offered in evidence the original records, made under the said resolutions and proceedings, and which had been returned to the Governor and Council, and accepted by them, and remained in the Council Chamber [**46]  for the purpose of binding up, before they were deposited in the Chancery office. He also offered in evidence that the proceedings in Chancery, before the end of the third week in November, 1816, required to be recorded by Thomas H. Bowie, and left unrecorded by him, had been recorded under the said resolutions and proceedings, and accepted by the Governor and Council, and deposited in the Council Chamber as aforesaid; and he produced the said records in Court, and offered further in evidence, that these last mentioned records cost the State about $ 725, which it had paid to the persons employed to make the same. The defendant on his part offered in evidence from the said records so produced, that many of the cases improperly omitted to be recorded by Thomas H. Bowie, were suits between individuals to which the State was not a party, and in which the State had no other interest than what belongs to it as the guardian of the rights of its individual citizens. And then prayed an instruction to the jury, that the plaintiff was not entitled to recover damages for the omission by Thomas H. Bowie, to record proceedings and decrees in suits, to which the State [**47]  was not a party, and on account of which nothing was paid to Bowie by the State, or by him demanded of it. Our reflections on this point, have satisfied us, that the Court were right in refusing this direction to the jury. To say nothing at present of the acts of 1716, ch. 1, and 1742, ch. 10, which in terms give the action to the public, it appears to us, it may be sustained by the State on one ground without the aid of others. The records of our Courts of Justice are to be considered as public property, and so important is it to the community that they should be made up correctly and 

 [*283]  preserved with care, that when a neglect in these particulars in any of its officers occurs, an obligation is imposed on the State to supply the defect, and have the work done at the expense of the Treasury. The defaults of the officers are thus visited on the public, and their bonds afford the only means of security for the State to resort to against loss.
The fourth and fifth exceptions present questions of evidence, and are of minor consideration, and will be disposed of at the same time. The defendant wished to give in evidence two record books, in [**48]  which were recorded proceedings required to be recorded by Thomas H. Bowie. He proved by the present Register, that two such books were in the Chancery office, and being unable to produce them, he endeavored, by testimony, to show they were lost, in order to let in the secondary proof of them, which he offered to lay before the jury. The point then is, whether his testimony was sufficient to answer the purpose he had in view. Whether the evidence of the loss of the books, was such as to authorize the admission of the proof offered. The Court below thought it was not, and we cannot but coincide in the opinion. The utmost extent to which the testimony went, was to prove that the books inquired after had been missed from the Chancery office, and that there was every reason to believe they had been taken out by, and were in the hands of, some of the persons engaged in recording the Chancery proceedings, under the resolutions of the Legislature: and that Joseph Mayo, the only one of the recording Clerks applied to for these record books, stated he did not recollect having taken them out, and did not know that he had ever seen them out of the office; and while the trial was going [**49]  on, that he made an unsuccessful search for them among the books and dockets in the committee room of the House of Delegates, which had been used by the Clerks when employed in recording the Chancery papers. This testimony is inconclusive and unsatisfactory, and leaves the mind in doubt, whether by a further 

 [*284]  search the record books sought for, might not have been regained. Several persons were employed in making up these records, and for some purpose, it is believed, had these books, and yet one of them alone was applied to for them, and the application to him was made at so late a period, that a confused and hurried examination for them could only be made. This is not the reasonable diligence the law requires in hunting up lost records, and is insufficient to let in, to the jury, the parol proof mentioned in the fifth exception, or the inferior evidence offered by the defendant in the fourth exception. The primary character claimed on the argument, for the reports and orders in the time of Chancellor Kilty, made under the act of 1817, ch. 119, and offered in the fourth exception, cannot be acceded to them. If they are evidence at all, a point upon which [**50]  it is unnecessary to make up an opinion, they must range in the subordinate class, and cannot be received to supply the place of a record, until conviction is produced on the minds of the Court of the loss of it. The principal objection made by the defendant in the last exception, to the instruction prayed by the plaintiff was, that the bond sued on was not required by the constitution or any then existing law, and therefore he was not legally responsible under the said bond, for the conduct of Bowie, as Register of the Court of Chancery, for any period of time. This is a question of some magnitude, and we must return again to the constitution for the solution of it. The sheriff is the only officer who is required, in express terms, by the constitution to give bond and security, and this, by the 42d section, he is bound to do, every year, "as usual." The form then in use was prescribed by the act of 1715, ch. 46, and it was constantly after used by the sheriff elected by the people, until the year 1794, when it was found expedient to increase the penalty and alter some parts of the condition. It was competent to the Legislature to prescribe a new form of bond for the [**51]  sheriff, immediately after 1776; but at that juncture, there was other business to occupy that body, and they 

 [*285]  were willing to repose upon the then laws of Maryland, which unquestionably formed the ground work of the constitution itself. How else are we to understand the before mentioned expression of the 42d section, as usual, which has a direct reference to the existing laws, or the practice under them. The County Clerks, by the constitution, are to hold their commissions during good behavior, and although they are not expressly directed to give bond and surety, as in the case of the sheriff, from the year 1776 to the year 1800, bonds were given by them, and that according to the form prescribed by the act of 1742, chap. 2. In the last mentioned year, the year 1800, a law was passed compelling the Clerks of the County Courts to give bonds in larger penalties, and with a different form of condition. The same may be said of the other officers named in the act of 1742, and in the constitution of the State; all of whom, at one period or other, within the last fifty years, have complied with the act, and given bond, pursuant to its provisions, without any respect [**52]  whatever to the tenure of their offices, which, under the Provincial government, it is believed, was only durante bene placito. Bordley vs. Lloyd, 1 H. & McH. 27. All this uniformity of proceeding, from the earliest times, goes forcibly to prove, that the acts of 1716, ch. 1, and 1742, ch. 2, were existing laws at the adoption of the constitution, and were so considered by those who were first engaged in carrying it into execution. If this wants further confirmation, we think it may be found in the 10th section of the constitution itself, which seems to point to those laws, and to imply strongly, that other officers than the sheriff were to give bond with security. The section gives to the House of Delegates power to direct all office bonds, which are to be made payable to the State, to be sued for any breach of duty. We clearly think, then, that the defendant was responsible under the bond, for the conduct of Bowie, as Register of the Court of Chancery, the first year he was in office. Other objections were started by the defendant to the plaintiff's prayer in the last 

 [*286]  exception, all of which we consider groundless, and as forming [**53]  no legal impediment to the instruction given by the Court to the jury. We do not deem it necessary to give them a particular notice.
JUDGMENT AFFIRMED.  

28 of 34 DOCUMENTS 

OWENS vs. COLLINSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 25; 1830 Md. LEXIS 46 

December, 1830, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery.

The appellant, Thomas Owens, a minor, by his prochein ami, filed his bill of complaint against the appellee, John Collinson, on the 9th of May, 1826. The bill stated that one Edward Collinson, of Anne Arundel county, died intestate, and without issue, sometime in the year 1823, possessed of a considerable personal estate, leaving the complainant, (a sister's son) and several brothers and sisters, his next of kin, and personal representatives. That John Collinson, the appellee, took out letters of administration on his estate; possessed himself as such, of the assets of the deceased, and disposed of the same to an amount more than sufficient to discharge all claims against him. That a large surplus remains in the hands of the administrator, subject to distribution among the representatives of the intestate. That instead of distributing the surplus, as bound by law to do, the administrator has converted the same to his own use, and refuses to pay complainant the share to which he is entitled; alleging that the assets of the intestate have all been paid away, or retained by the administrator for debts due him from the deceased; which debts so retained [**2]  for, the complainant charges to be false, and fraudulent; and he further charges that the intestate died indebted to a very inconsiderable amount, and that if pretended debts to a very large amount, have been paid by the administrator, it has been collusively done, and for the purpose, the more easily to convert the residue to his own use. Prayer, that said administrator may be compelled to account with complainant, and to pay him his distributive share, of whatever balance may be found to be due, and for general relief.

The subpoena which was issued on the above bill, was returnable to July term, 1826.

At that term the defendant filed his answer, admitting that Edward Collinson died intestate in the year 1823, leaving the complainant, the son of a sister, and several brothers and sisters, and the children of brothers and sisters, his personal representatives, as alleged in the bill. That said intestate died seized, and possessed of both real and personal estate, and that defendant became his administrator. That the intestate being largely indebted to the defendant, and various other persons, he applied to, and obtained an order from the Orphans Court, for the sale of his [**3]  personal estate, which was accordingly disposed of, and the proceeds applied, by the defendant, to the payment of the debts of his intestate, as will appear by copies of his accounts settled with the said court, marked exhibit (A) and the vouchers accompanying the same, numbered from 1 to 23, inclusive. That by said accounts it will appear, that the personal estate of the intestate was inadequate to the payment of his debts, and being so, the defendant alleges that application was made to the Court of Chancery for a sale of the real estate, to make up the deficiency; that a sale was accordingly decreed, and the proceeds thereof, after supplying the deficiency of the personal estate, were divided among the legal representatives of the intestate, all of whom, except the guardian of complainant, are perfectly satisfied, with the manner in which the defendant has conducted his administration.

The answer further states, that the intestate and defendant, for many years, were co-partners in all their various dealings and business, and that they continued so to be until a short time previous to the death of the intestate, when a dissolution, by mutual consent, took place, and an adjustment [**4]  and settlement of their transactions and accounts was made in the presence of William Collinson and Edward Harper, two of the representatives of said intestate, upon which settlement, said intestate became indebted to the defendant in the amount, for which he has been allowed in his settlements with the Orphans Court. The answer denied all fraud, &c.

Exhibit (A) contains the accounts settled by the defendant, as administrator of John Collinson, with the Orphans Court; the first proved and passed on the 8th February, 1825, the latter being the final account, on the 24th of June of the same year, by which the estate appears to be overpaid the sum of $ 3,958 91 1/2 cents.

Voucher No. 13, is a note signed by John and Edward Collinson, payable to Nathaniel Chew, on demand, for $ 228 50, dated May 22, 1812, which with interest to the date of its payment, by the administrator, on the 28th January, 1825, amounted to $ 347 54. For the whole of this sum the administrator obtained a credit.

No. 16, is a note similarly signed, in favor of William Collinson, for $ 550, dated July 14, 1814, and amounting the 7th January, 1825, when paid by the administrator, to $ 896 77, for the whole [**5]  of which a credit was likewise obtained.

No. 18, is an open account against John and Edward Collinson, due Nathaniel Chew, amounting when paid by the administrator, to $ 470 38, for which also a credit was obtained.

No. 19, is an account against the deceased, due John Collinson the administrator, shewing a balance due the latter on the 25th March, 1823, of $ 3,909 51, a credit for which was also obtained.

No. 21, is a similar account, exhibiting a balance due to the administrator of $ 580 35, for which likewise a credit was obtained.

The above claims were all proved, and passed by the Orphans Court, prior to the settlement of the accounts of the administrator.

Commissions issued by consent, to Anne Arundel and Baltimore counties.

With one of those commissions the complainant filed a copy of the administration bond of the defendant, by which it appeared that Edward C. Harper and William Collinson, were his securities for the faithful performance of his trust, and under the same commission, persons of the same name were examined as witnesses on the part of the defendant.

There was evidence that the administrator had received, after the death of the [**6]  intestate, dividends on bank stock, standing in his name, to the amount of $ 355 50, with which he had not charged himself in his settlements with the Orphans Court; and it was further proved under the commissions, that the proceeds of a crop of tobacco sold by one Norris, on account of the intestate, were received by the administrator, with which in his said settlements, he had failed also to charge himself.

On the 8th of March, 1828, the auditor in obedience to the Chancellor's order for an account, stated an account between the defendant and complainant, by which, charging the defendant with the proceeds of the tobacco sold by Norris, the dividends on the bank stock, and the sums specified in the before mentioned vouchers, there appeared to be a considerable amount due the complainant, as his distributive share of the said intestate's estate.

Exceptions were filed by the defendant to this account, and the auditor in obedience to specific instructions given him by defendant, stated another account on the 31st May, 1828, according to which, crediting him with the disputed vouchers, and omitting to charge the proceeds of said tobacco and bank dividends, he is made to have [**7]  overpaid the estate the sum of $ 4077 80 cents.

BLAND, Chancellor, on the 2d of June, 1828, rejected both of those accounts, and directed the auditor to state another, upon certain principles prescribed in the order.

On the 3d of June, 1828, the auditor, in conformity with this order, stated a third account, by which the estate appeared to be overpaid $ 3132 32. On the same day, BLAND, Chancellor, rejected this account, as not being in accordance with his order, passed the day before; but being of opinion that the defendant had distributed all the assets which came to his hands, he dismissed the bill with costs.

From this decree the complainant appealed to the Court of Appeals.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The securities on an administration bond, in a suit brought by a distributee against the administrator, are not competent witnesses to prove, that the assets of the deceased have been consumed in the payment of debts.

It is not true as a uniform rule, that a creditor is a competent witness for administrators. He is only so, where the assets are sufficient for the payment of debts. When they are not, whether the administrator be plaintiff or defendant, if the verdict swells the fund to which he must look for the payment of his debts, his incompetency is manifest; he is only competent when the verdict cannot affect his interest.

The bail of the defendant is not a competent witness for him.

In an action upon an administration bond against a surety, the administrator is not a competent witness for the defendant. The witness is responsible for costs, in case of a recovery against the defendant.

An administrator, who, being called upon in Chancery to account, comes promptly into court, answers the bill, and submits all his accounts and vouchers, and furnishes the means of detecting the errors which are fairly attributable to him, is not to be presumed guilty of a fraudulent concealment of credits actually omitted.

Accounts settled in the Orphans Court, by executors, administrators and guardians, are prima facie evidence in all suits touching the matters therein contained, to which they are parties; and the onus probandi rests on him who seeks to impeach their correctness.

The Orphans Courts are the tribunals invested by law, with the power of passing claims against the estates of deceased persons.

If an executor or administrator, bona fide, without any knowledge of its injustice, pay a claim previously passed by the Orphans Court, though not proved in the manner prescribed by the testamentary system, such payment is not made at his risk. To a credit therefor, he is not only prima facie entitled, but his right to it cannot be controverted. So if he retain the amount of his own claim thus passed.

When the accounts of an executor are under an examination in Chancery, if it should appear on the face of vouchers passed by the Orphans Court, that a claim paid, was not a just one against the deceased, it is as much the duty of a Court of Equity to reject it, as if the illegality of its allowance were established by proof dehors.

I, as executor of E, claimed an allowance for the payment of a note signed I and E, which was admitted by the Orphans Court; I passed his account accordingly, and was credited for the whole amount. This account being under investigation in Chancery, and it being admitted that the signature I and E, was in E's hand writing, in the absence of proof of partnership between them: HELD, that the prima facie character of the account was not impeached.

Where two are bound for the payment of a specific sum, and one pays the whole, he can either at law or equity, call upon the other to contribute, and thus recover a moiety of what he has paid.  

COUNSEL:
Alexander, for the appellant, contended,

1. That the appellant was entitled to a proportion of the dividends of the bank stock, and of the proceeds of the tobacco, which the appellee was proved to have received, and with which he is not charged. 2. That there is no evidence that appellee's vouchers, Nos. 13, 16 and 18, were legal and equitable claims against the intestate. 3. That the appellant is entitled to a proportion of the amount of vouchers, Nos. 19, 20 and [**8]  21, there being no evidence that said vouchers were just and equitable claims against the estate of the intestate; and because if said claims are proved once to have had existence, they furnish no evidence of the balance due by intestate to appellee on the settlement of all their accounts and dealings, which is charged in the answer, to have taken place between them. 4. The appellant relies on the pleadings and proofs, as evidence that the accounts passed with the Orphans Court, by the appellee as administrator, are not correct; and also to support the charge of fraud, as set forth in his bill. 5. The appellant admits that he cannot recover beyond the amount of the personal assets, which came into the possession of the appellee, deducting the legal expenses of administration. He contended also that the securities in the administration bond were not competent witnesses for the appellee. On this point, he referred to Ferguson vs. Cappeau, 6 Harr. and Johns. 394. Ib. 402. 1 Philips' Ev. 52. Craig vs. Cundell, 1 Campb. 381. He referred also to Ringgold vs. Ringgold, 1 Harr. and Gill, 81. Hart vs. Ten Eyck, 2 Johns. Ch. C. 67. The act of 1798, ch. 101, sub-ch. 8 and 9. 1785, ch. 46. 1802,  [**9]  ch. 101, sec. 9. Bean vs. Jenkins, 1 Harr. and Johns. 135. Morton vs. Beall, 2 Harr. and Gill, 136. He further insisted, that the defendant's interrogatories were leading, and to show that answers to such interrogatories are not evidence, he referred to 2 Madd. Ch. P. 413, 442. Morse vs. Royall, 12 Vesey, Jr. 360. Newland's Prac. 297, 298. Objections of this description, may be made at the hearing. Gilbert's Rep. 150. 1 Harr. Ch. 455. 1 Ambler, 585. Collins vs. Elliott, 1 Harr. and Johns. 1. Stevenson vs. Myers, Ib. 102. 1 Ball and Beatt. 413.

Brewer, Jr., for the appellee.

The settlements in the Orphans Court, are at least prima facie evidence for the appellee. 1798, ch. 101, sub-ch. 9, sec. 13, 15. Scott vs. Dorsey, 1 Harr. and Johns. 231. Spedden vs. The State, 3 Harr. and Johns. 276. Gist vs. Cockey and Fendall, 7 Harr. and Johns. 134.

The competency of a witness should be objected to, at the examination; it is too late, after the return of the commission. A copy of the administration bond is not evidence to shew, that Harper and Collinson were sureties; that fact should have been proved by the subscribing witnesses. But if the fact of their being sureties was sufficiently [**10]  proved, still as there is no direct interest in the result of the suit, the objection to their competency cannot be sustained. King vs. Prosser, 4 Term Rep. 17. Scott vs. Dorsey, 1 Harr. and Johns. 232. If the interrogatories are supposed to be leading, the objection should be made at the examination, as both parties are present, or notified to be present. On the subject of leading interrogatories, he referred to 1 Ambler, 585. Morse vs. Royall, 12 Vesey, Jr. 360. Gilb. Rep. 150.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*32]  DORSEY, J., delivered the opinion of the court.
The first question to which our attention is called in the consideration of this case is, are the securities in an administration bond, in a suit brought by a distributee against the administrator, competent witnesses to prove that the assets of the deceased have been consumed in the payment of his debts? Upon principle and analogy, this question is simple and easy; but when viewed in reference to decisions on the subject, it cannot be regarded as free from difficulty. In Carter vs. Peace, 1 Term. R. 163, it was decided, that [**11]  in an action against an administrator, one of his securities, for the due administration of the effects, is a competent witness to defeat the action. And this case is cited as establishing that principle in 2 Stark. Ev. 775. The grounds assigned by the court in support of their opinion, were, that "the bare possibility of an action being brought, is no objection to competency;"--"that in order to disqualify a witness, it is necessary to show that he will derive a certain benefit from the result, one way or other;"--"that even the creditor of the administrators, which is a stronger case, would be a competent witness." With great deference to authority so imposing, it does appear, that the grounds upon which the decision of the court is placed, are not sufficient to sustain it. In the first place, it is not true as an uniform rule, or principle of law, that a creditor is a competent witness for administrators. He is only so where the assets are sufficient for the payment of debts. Where they are not, whether the administrators be plaintiffs or defendants, if the verdict swells the fund to which he must look for the payment of his debt, his incompetency is manifest. He is 

 [*33]   [**12]  only competent, therefore, where the verdict cannot affect his interest. Can it be said then, that the admission of a creditor to testify for the administrator, (under the circumstances in which only his testimony is admissible,) is a stronger case, than that of a surety in the administration bond testifying for the administrators, defendants; when it is considered that a verdict for the defendants is a discharge pro tanto, of his liability on his bond; and that a verdict for the plaintiff is evidence against him the witness, in a suit on his administration bond. Can it be a bare possibility that an action will be brought, that the interest is too remote, when the liability is so immediate, the interest so obvious, the benefit so certain?
The case at bar, is not one, where the recovery against the administrator, is an indispensable preliminary to the institution of a suit against the securities; but one in which their responsibility, (except in amount) is already fixed. Where they might have been sued before, or may be sued after the decree of the Chancellor, where the amount which ought to be recovered against the defendant, is identical, with that which should be recovered against [**13]  them; where the decree too, may be used in evidence against them. But even admit it were the case, where a recovery against the principal is a pre-requisite to the commencement of an action against the security, as in the case of a creditor suing an administrator; upon principle and analogy, the decision should be the same. The interest is direct; as by defeating the suit, he discharges himself from all claim for its amount. His liability is immediate; as upon failure to make the money of the administrator, his bond may be put in suit. That the bail is an incompetent witness for the defendant, is a principle so universally admitted, that authorities need not be cited to prove it. In 2 Stark. Ev. 786, it is laid down as text law, that "where a surety would be immediately liable, in case of decision against the principal, his interest is obvious, and therefore a bail is incompetent in an action against his principal." In what respect 

 [*34]  is the bail's responsibility more immediate than that of a security in an administration bond, where his principal is sued by a creditor? After judgment, and a return of a non est to ca. sa. and not before, can process be had against [**14]  the bail. After judgment, a return of nulla bona upon a fi. fa. and not before, can you sue the security, in an administration bond. If the verdict be for the defendant, the bail is absolutely discharged from all liability for the debt sued for--if for the defendant administrator, his security is equally so. But the bail has this obvious advantage; his liability is not absolutely fixed and certain. At any time before, or within a few days after the return of the scire facias against him, he may surrender his principal, and thereby is absolutely discharged. Not so with the security in an administration bond; he has no such means of self-exoneration. But the present is a much stronger case, than even that of bail or surety in an administration bond, the administrator being sued by a creditor. Here if the plaintiff had any cause of action, the liability of the surety was fixed, and certain, and his only means of exonerating himself, was by defeating the claim of the plaintiff. Is it possible he can be deemed a competent witness for that purpose? Without violating all analogies, and the best established rules of evidence upon this subject, we think the testimony of the securities [**15]  in the administration now before us, cannot be received. That the views of this court have heretofore been in accordance with the present determination, we think inferable, from their opinions in the cases of Seegar's Ex'rs vs. the State use of Betton, 6 H. & J. 162, and Ferguson vs. Cappeau's Adm'r, 6 H. & J. 394.
A liability for costs of suit renders a witness incompetent. In a suit by an indorsee against an accommodation indorser, the maker of the note is not a competent witness for the indorser; because in defeating the suit, he discharges himself from the costs, for which he would be answerable, in case judgment were rendered against the indorser. Or to speak more immediately on the facts before us, if a 

 [*35]  suit were instituted on the administration bond against the surety, the administrator is an incompetent witness for the defendant, his testimony going to exonerate himself from the payment of costs, for which he would be liable to the defendant, in case a recovery were had against him. But if the administrator were sued as in this cause, on his administration bond, for the claim now in litigation, according to the principle now contended [**16]  for, the security would be a competent witness for the defendant, although by his own testimony, he absolves himself from all liability for the debt, or cause of action. If such be the law, it has neither reason nor justice to sustain it. In Miller vs. Falconer, 1 Campb. 251, an action on the case for negligence in running against plaintiff's cart, with a dray. The plaintiff's servant, who drove the cart, being called as a witness, was rejected by Lord Ellenborough, on the ground, "that the witness certainly comes to discharge himself." In Morish vs. Foote, 8 Taunt. 454, an action on the case for negligently driving a mail coach against the plaintiff's wagon-horse, whereby it died, the plaintiff's wagoner was rejected for incompetency, as being interested in the event of the suit, inasmuch as "he would be placed in a state of security," by a verdict against the defendant. If in these cases, the witnesses were incompetent, (without a particle of proof showing aught for which an action would lie against them) on the ground that the verdicts to be rendered would "discharge them," "or place them in a state of security;" does not the same objection [**17]  apply with still stronger force, to the competency of the witnesses, in the record before us. They are interested in the event of the suit, because the decree of the Chancellor, if in favor of the defendant, absolves them from all liability; if against the defendant, it is evidence against them when sued on their bond. Iglehart vs. State use of Mackubin, 2 G. & J. 235. In Morton vs. Beall's adm'r, 2 H. & G. 136, it was determined that the security in a replevin bond, is not a competent witness for the plaintiff in the action of replevin. If the point 

 [*36]  there adjudged, be in principle distinguishable from that now under consideration, the shade of distinction is so feint, as to be discernible only by minds peculiarly adapted to the investigation of legal subtleties. Rejecting the testimony of the witnesses in the administration bond, the enquiry presents itself, are there any other grounds upon which the decree of the Chancellor, dismissing the appellant's bill of complaint, can be sustained? That the answer of the defendant with the accompanying exhibits, are sufficient for that purpose, we entertain no doubt. In May, 1826, the bill is [**18]  filed, charging the fraudulent misapplication of the effects of the deceased, and conversion thereof to the defendant's own use, and praying that he may answer the allegations in the bill, and account with the complainant, &c. The defendant at the earliest moment that it could be done, appears in the Chancery Court, files his answer, denies the fraud with which he had been charged, makes a full disclosure of the manner in which he had settled the estate of the deceased, and files copies of the accounts which he had passed with the Orphans Court, and exhibits all the vouchers for which he had obtained credit; although no requisition for that purpose had been made by the complainant. This promptitude and willingness in the defendant, to submit all his proceedings to the inspection of his adversary, and of the Chancellor, strongly repels the imputation of fraud, and entitles him to the favorable consideration of a Court of Equity. Nor do we think, under the circumstances of this case, the proof that he has, in his settlements with the Orphans Court, omitted to charge himself with $ 355 50, received as dividends on bank stock, and $ 471, the proceeds of a crop of tobacco from Thomas  [**19]   Norris, of Baltimore, and his charging in this account No. 19, the whole, instead of the one half of $ 385, the difference in value between the lots of negroes divided, such conclusive evidence of wilful misconduct on the part of the defendant, as to divest him of all claim to the favor and protection of a Court of Chancery, and so to taint with perjury and 

 [*37]  fraud, his accounts and vouchers from the Orphans Court, as utterly to discredit them. The charge of $ 385, manifestly originated in mistake, as appears by the endorsement on the voucher, on which it is founded, and is an error into which he might very innocently have fallen. The failure to debit himself with the tobacco money received of Thomas Norris, appears also to have proceeded from carelessness or forgetfulness, as if fraud had been designed, he furnished the means of its detection, by charging in his account No. 21, against Edward Collinson's estate $ 238 07, the one half of $ 477 34, the net proceeds of the tobacco, excluding the articles paid for by Norris, for Edward Collinson. Candor compels us to regard his omitting from his accounts, the $ 355 50 of bank dividends, as an unintentional [**20]  act. In accounting as he did for the bank stock, those interested in the estate, were naturally led to an inquiry as to payment of dividends. That a fraudulent concealment was intended, is therefore not to be presumed.
In argument for the appellant, it has been contended, that the proceedings in the Orphans Courts, are not evidence of any thing for the appellee, and that he is bound to prove in this case, not only the actual payment of every claim for which he has received credit, but that such claims were justly due and owing from the intestate. After the solemn decisions made in this State, and reported in Scott, et ux. vs. Dorsey's Ex'rs, 1 Harr. and Johns. 227. Spedden vs. The State use of Marshall, and ux., 3 H. & J. 251. Gist's adm'r d. b. n. vs. Cockey and Fendall, 7 Harr. and Johns. 134, the doctrine insisted on, is no longer a subject for discussion in our courts. If any principle has been conclusively settled by our decisions, it is, that the accounts settled in the Orphans Courts by executors, administrators, and guardians, are prima facie evidence, in all suits touching the matters therein contained, to which such executors, administrators [**21]  or guardians, are parties; and that the onus probandi, rests on him, who seeks to impeach their correctness. The great controversy 

 [*38]  relative to such accounts, heretofore has been, not whether they were evidence at all, but whether they were not conclusive evidence.
The appellant's counsel next urged that the "vouchers," on which the credits in the Orphans Court were allowed, being produced, and it appearing upon the face of them, that though passed by the Orphans Court, previous to their payment, they were not proved in the manner required by our testamentary system, as a pre-requisite to their passage; that the defendant paid them in his own wrong, and is entitled to no allowance therefor. The inconsistency and injustice of such a position is so glaring, that it is scarcely necessary to say it is wholly untenable. The Orphans Courts are the tribunals invested by law, with the power of passing claims against the estates of deceased persons, and the act of assembly of 1798, ch. 101, sub-ch. 8, sec. 22, declares, "that no executor or administrator, shall discharge any claim against the deceased, (otherwise than at his own risk,) unless the same shall be [**22]  passed by the Orphans Court, granting the administration, or unless the said claim be proved according to the following rules." The irresistible inference is, that if an executor or administrator, bona fide, without any knowledge of its injustice, pay a claim, thus passed or proved, that the payment is not made at his risk. To a credit for such a payment, under such circumstances, he is not only prima facie entitled, but his right to it, cannot be controverted. It has also been insisted, that admitting the settlements made with the Orphans Court, are prima facie evidence, to sustain the credits for all payments made, in satisfaction of debts due third persons, yet they are no evidence to support an allowance made to the administrator for his own claim. This court can see nothing to warrant such a discrimination. In the act of 1798, ch. 101, sub-ch. 8, sec. 19, it is stated, "that in no case shall an executor or administrator, be allowed to retain for his own claim against the deceased, unless the same be passed by the Orphans Court, and every such 

 [*39]  claim shall stand on equal footing with other claims of the same nature." As full power is delegated [**23]  to the Orphans Court, to allow an account of an executor or administrator, against the deceased, as if a like claim had been preferred by any other person. The claims of an administrator in this case, in common with all other claims against the deceased, being accredited to him in the settlement of his accounts with the Orphans Courts, such accounts must be regarded by us, as the acts of a court of competent jurisdiction, but whose proceedings being wholly ex-parte, are not conclusive, but rest on the principle that, "omnia rite acta fuisse presumunter, donec probitur in contrarium." With the vouchers all before him, the appellant has not attempted to offer any testimony, (although several commissions were issued, giving him that opportunity) to impeach or discredit any of them; but founds his objections, exclusively on suggestions arising on their inspection. This is a strong circumstance to repel the allegation of fraud, which has been urged against the appellee. He was guilty of no concealments with regard to the credits which have been allowed him, but furnished the Orphans Court with the same grounds for suspecting and rejecting his vouchers, which he so promptly afforded [**24]  the appellant. It cannot be denied, that if it appear on the face of a voucher, that it is not a just claim against the deceased; it is as much the duty of a court of equity to reject it, as if the illegality of its allowance were established by proof dehors. Looking to vouchers Nos. 13 and 16, independently of any proof in the cause, or admission of the counsel on record, it must be admitted that the Orphans Court erred, in allowing the administrators credits for their whole amount; because they show debts due by Edward and John Collinson, and not by Edward alone. But it cannot be denied, that if the whole of those claims were paid by John, after Edward's death, that the Orphans Court would be justified in crediting John with a moiety of the amounts paid by him, upon the ground that Edward and John, being both principal debtors, 

 [*40]  if one pay the whole, he can either at law or in equity, call upon the other to contribute, and thus recover a moiety of what he had paid; but connecting the admission made by the appellant's counsel, that the signatures to the notes, are in the hand-writing of Edward Collinson, the Court of Chancery were [**25]  right in crediting the administrator with the whole payment made on those notes, it not appearing that Edward Collinson had any authority to sign the name of John; he is the debtor, being alone answerable for the payment of the notes. In thus considering the case, we put out of view all the testimony taken by the appellee to sustain his vouchers, upon the objections to its admissibility raised by the appellant, on the ground that the whole of it must be suppressed, as being given in answer to leading interrogatories, and that William Collinson and Edward C. Harper, being securities in the administration bond, are incompetent witnesses. But it is insisted on in behalf of the appellants, that these claims, and also No. 18, were debts due by Edward and John Collinson, under a general partnership, subsisting between them, and that John is not entitled to claim a moiety of any particular partnership debt, he may pay; but his claim, if any, must be for the balance due on a final settlement between the partners of the partnership concerns, or upon a full exhibition of all their company transactions, and thus ascertaining the general balance, to the payment whereof [**26]  he is entitled. Upon what does the appellant rely for establishing the fact, that a general partnership existed between Edward and John Collinson. He has offered no evidence for that purpose, and he can insist on it only in two ways. First, that it is proved by the testimony taken by the defendant in support of his defence, or that the defendant had stated it in his answer, (though in a part not responsive to the bill.) If he relies upon the proof to which he has objected, he waives his objection to its competency; his whole equity is disproved, and he has nothing in the record to give him a moment's standing before this court. If he relies upon the defendant's answer, 

 [*41]  his predicament is equally deplorable. The whole equity of the bill is sworn away, and he has nothing to sustain it, which could produce any possible change in the decree of the Chancellor. Upon whatever grounds, therefore, the appellant may choose to rest his case, the vouchers Nos. 13 and 16 are sustained; but if he repudiates the answer and suppresses the appellee's testimony, taken under the commissions, he is entitled to claim a deduction of one-half from voucher No. 18, amounting to $ 235 [**27]  19, which being added to the one-half of $ 385, and the amount of bank dividends, and the price of the crop of tobacco of 1823, received by John Collinson, will make the sum of $ 1260 53, which amount is properly chargeable against the administrator, and being deducted from $ 4077 80, the amount of the estate over paid, as per auditor's statement of the 31st May, 1828, will leave the estate overpaid by the sum of $ 2817 27. As to objection to vouchers Nos. 13 and 18, that the receipts thereon were signed by Nathaniel Chew of John, for Nathaniel Chew of Joseph, and that the appellee has adduced no proof to show an authority in the former to act for the latter, we have only to observe, that by allowing credits for these claims, the Orphans Court have recognized the validity of those receipts, which recognition has been supported by the oath of the administrator, that he has paid the creditor; and that fortified too, by the possession and production of the note, and account, with the receipts thereon. Under such circumstances, and in the absence of all proof on the subject on the part of the appellant, we are not bound, and certainly feel no disposition to doubt the [**28]  authority of the agent.
DECREE AFFIRMED.  

29 of 34 DOCUMENTS 

EBENEZER L. FINLEY vs. CHARLES L. BOEHME.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 42; 1830 Md. LEXIS 47 

December, 1830, Decided 

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

This was an action of covenant brought by C. L. Boehme, the appellee, against E. L. Finley, the appellant. The plaintiff's declaration stated that "whereas by certain articles of agreement made the 17th February, 1820, at &c. between the said plaintiff and defendant, (which said articles, sealed, &c.) the plaintiff, for the considerations therein mentioned, did covenant with the defendant, to make and burn for him, the defendant, on a certain farm of the defendant, called Canton, lying and being in the county aforesaid, 300m bricks in a workman-like manner, and of the following proportions:--not less than one-fifth to be of salmon bricks, two-fifths of red bricks, and two-fifths of black brick--the first kiln of bricks to be ready for delivery in the month of May next; ensuing, the day and year aforesaid--the number of bricks to be ascertained by the carters' tickets, to be given up on the delivery of each load. And the defendant, on his part, for and in consideration of the premises, covenanted and agreed to and with the plaintiff, that he, the defendant, would furnish free of expense to the plaintiff, all the scantling and planks necessary [**2]  for making the said bricks; and would pay the plaintiff, five dollars and a half for every thousand of good merchantable bricks, made in the manner described in the said articles of agreement--one-half of said bricks to be paid for in pine wood, delivered at the stump when called for, on said farm, at two dollars and fifty cents per cord--three hundred dollars to be paid to the said plaintiff when the first hundred thousand bricks should be delivered--three hundred dollars when the second hundred thousand bricks should be delivered--and the balance to be paid when the said contract should be completed." 1st breach, And the plaintiff in fact saith, that afterwards, viz. on the 10th day of May, in the year aforesaid, at &c. he did make and burn, in a workman-like manner, on the farm of the defendant, called Canton, one kiln of bricks containing 100m bricks; and then and there had the same ready for delivery to the defendant, and did then and there offer to deliver the same to the defendant. 2nd breach, And the plaintiff in fact further saith, that on the day and year last aforesaid, at &c. he the plaintiff, did make 120m bricks, and was then and there ready and prepared to burn the same,  [**3]  but was, by the said defendant, hindered, prevented, and forbidden from burning the same, and from making and burning the residue of the said 300m bricks. 3d breach, And the plaintiff in fact saith, that although he hath always, from the time of making the said articles of agreement, well and truly performed all things therein contained, on &c. yet protesting that the said defendant hath not, &c. the said plaintiff avers, that although he did, on the tenth day of May, in the year aforesaid, make and burn in a workman-like manner, 100m bricks, on the farm of the defendant, called Canton; and then and there had the same ready for delivery, and offered to deliver the same to the said defendant; yet the said defendant did not, and would not pay, and as yet hath not paid to the said plaintiff, the sum of three hundred dollars; and although the said defendant, on the day and year last aforesaid, at, &c. and on the farm aforesaid, did make 120m bricks, and was then and there ready and prepared to burn the same; yet the defendant hindered, prevented, and forbid the plaintiff to burn the same, or to make and burn the residue of the said 300m bricks; and although afterwards, viz: on, &c. at,  [**4]  &c. the plaintiff did demand of the defendant, and require him to deliver to the plaintiff, on the farm aforesaid, 350 cords of pine wood at the stump; yet the defendant wholly neglected and refused to deliver the same to the plaintiff, and still refuses. And so the said plaintiff saith, that the said defendant hath not, &c.

To this declaration the defendant pleaded, 1st, general performance.

2nd. That the said plaintiff never did deliver to the said defendant, any good merchantable bricks whatever, and of this, &c.

3d. And for further plea to the first count or breach in the declaration contained, the said defendant, by leave, &c. says that the plaintiff ought not, &c. by reason of any thing in the said first breach of the declaration contained; because he says, that, protesting, &c.; yet the said defendant in fact saith, that the said defendant did not hinder, prevent, or forbid, the said plaintiff from burning the 120m bricks, or from making and burning the residue of the 300m bricks in the declaration mentioned; and of this he puts himself upon the country.

4th. And for further plea to the second breach or count in the declaration, the said defendant, by leave,  [**5]  &c.--the said defendant, protesting as in the last plea, says that the plaintiff, for any thing in the said second count or breach contained, ought not, &c. because he saith that he, the said defendant, did pay to the said plaintiff the sum of three hundred dollars, in the said second count or breach mentioned, and all other sums of money which, by the said agreement he ought to pay him; and of this he puts himself upon the country, &c.

Upon these pleas issues were joined.

At the trial of the cause the following exceptions were taken:--1st. The plaintiff gave in evidence the following contract, to wit: "Agreement between Charles L. Boehme and E. L. Finley. E. L. Finley, intending to build a dwelling house and other houses, on his farm at Canton, and to have all the bricks for such houses made on the farm; and Charles L. Boehme being desirous of contracting for the making of said bricks, the said Charles L. Boehme and E. L. Finley, have mutually contracted with each other, and by these presents do hereby contract with each other, in the following manner--that is to say: Charles L. Boehme, contracts to make for the said Ebenezer L. Finley, 300m bricks, on said farm; the bricks [**6]  to be made and burnt in a workman-like manner, and in the following proportions:--not less than one-fifth to be of salmon bricks, two-fifths of red bricks, and two-fifths to be of black bricks. The first kiln of bricks to be ready for delivery in the month of May next--the number of bricks to be ascertained by the carters' tickets, which are to be given on the delivery of each load--in consideration of which E. L. Finley contracts with the said Charles L. Boehme, to furnish, free of expense, to said Boehme, all the scantling and plank necessary for making the said bricks, and to pay the said Charles L. Boehme five dollars and a half for every thousand of good merchantable bricks, made in the manner heretofore described; in the following manner:--one-half of said amount of bricks to be paid for in pine wood, delivered at the stump when called for, on said farm, at two dollars and fifty cents per cord--three hundred dollars to be paid to the said Charles L. Boehme, when the first 100m bricks are delivered--three hundred dollars to be paid when the second 100m bricks are delivered--and the balance to be paid when the contract is completed. As wit-witness our respective hands and seals,  [**7]  this seventeenth day of February, 1820."

And then proved by Charles Brown, a competent witness, that he examined the bricks manufactured by the plaintiff, for the defendant, at Canton farm: that there was a clamp of bricks burnt--he recommended Boehme to take off nine inches from the clamp, which Boehme did--79,300 remained; there was six cords of wood remaining, and casing sufficient for all the raw bricks--then 120,000 bricks in the shed, as nearly as they could ascertain--the 79,300 bricks were burnt as well as the clay would admit, the clay was weak, the bricks were merchantable--the unmerchantable bricks taken down, were seven or eight thousand. That Finley refused to deliver the wood to burn the other bricks with, unless paid for in cash--that the bricks under the shed were well prepared for burning, and were not burnt for want of wood. The conversation with Finley was on the 3d day of November. That the bricks would have worked up well on the ground, but would not bear transportation--merchantable bricks were from $ 5.50 to $ 6--would have made no difference in price by selling 300,000. Finley told Boehme that he had not complied with his contract--that he, Finley, was [**8]  in advance, and would furnish no more wood unless paid for in cash--half a cord of wood requisite to burn 1000 bricks. And also proved by James Shields, that the witness is a brickmaker--selected the clay himself--commenced where he found the best clay, convenient to water--dug clay for 300,000 bricks--was detained three or four weeks for want of plank--the clay was all dug and the floors ready--applied to the carpenter for plank--never saw Finley at the brick yard, although he staid there constantly, the carpenter furnished the plank--he applied to Finley at his office--in two or three days the plank came-- he moulded about 200,000 bricks--Mr. Boehme would not have more moulded--after they stopped, Boehme and witness called on Finley--Finley refused to deliver wood unless for cash--clay was selected with care--there is none better there--and more bricks have been since made out of it--the bricks were well burned, well moulded, and well tempered--115,000 to 120,000 in the clamp--shed would hold 160,000 to 170,000--never saw Finley at the yard--when he applied to Finley for plank, Finley said he thought he had it, and in two or three days the plank came--they were afterwards delayed [**9]  six or seven days from burning for want of plank--he never applied to Finley for plank, for the clamp--Boehme was there once or twice a week--there was wood enough cut upon the place, in the same field, to have burnt another clamp. The plaintiff also offered evidence to the jury, that he delivered 4100 bricks to defendant, which were received by defendant. The defendant to support the issue on his part, gave evidence of the following payments, to wit:

________________________________________________________________________________
Cash payments made C. L. Boehme.	
1820,	May 9,	Cash paid him	$ 100 00	
"	May 11,	Cash paid him	200 00	
"	June 17,	Cash paid him	250 00	
________________________________________________________________________________

And of the delivery of 43 1/2 cords of wood, at $ 2.50 per cord. The defendant then moved the court to direct the jury, that if they believed that the defendant Finley, was in advance in money to the plaintiff upon the contract, he was not bound to deliver the wood demanded, until paid for--which direction the court [ARCHER, C. J., HANSON, and KELL, J.] refused to give; but instructed the jury, that the defendant under the contract was bound to deliver any wood demanded, which might be necessary for the burning of the bricks, in the progress of the contract--the [**10]  defendant excepting.

2d Exception. The plaintiff and defendant, having given the evidence as stated in the defendant's first exception, the defendant prayed the court to direct the jury. 1st. That the plaintiff is not entitled in this case, to recover any other damages than the excess between the price of so much fire wood delivered at Canton farm, as would have been necessary to burn so much of the 300,000 bricks, as were not burnt by plaintiff; and the price at which said wood was by the contract in this case, to have been furnished by defendant. 2d. That the plaintiff is not entitled to recover, unless the jury shall find from the evidence, that the first clamp of bricks was ready for delivery by the time stipulated in the contract, provided they find that the delay was not caused by the defendant; or that if entitled to recover at all, nothing on account of the bricks burnt in said first clamp, which directions and each of them, the court refused to give. Defendant again excepting, and the verdict and judgment being for the plaintiff, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

F, intending to build on his farm at C, and have the bricks made there, agreed with B under seal as follows: that is, "B contracts to make for the said F 300 m bricks on said farm, in the following proportions: not less than one-fifth salmon; two-fifths red; two-fifths black. The first kiln to be ready for delivery in the month of May next. In consideration of which, F contracts with B to furnish free of expense, all the scantling and plank necessary for making the bricks; and pay B $ 5,50 for every thousand of good merchantable bricks in the following manner: one-half of said amount of bricks to be paid for in pine wood, delivered at the stump, when called for, on said farm, at $ 2 50 per cord; $ 300 to be paid when the first 100 m are delivered; $ 300 when the second 100 m are delivered; and the balance when the contract is completed." HELD, upon the construction of this contract, that the engagement for the delivery of the wood, was an independent covenant on the part of F, with which he was bound to comply, without waiting for the burning of the first kiln of bricks.

In an action upon a contract under seal, where the declaration assigns and relies upon specific breaches, on which the issues are made up, the court will not consider whether the plaintiff has delivered the articles for which he claims compensation within the time limited by the contract, if that inquiry is not necessarily involved in the issues as joined, nor determine the effect of such an omission upon the rights of the parties.

The plea of general performance, when relied on as an answer to a specific breach assigned in a declaration in covenant, must either be regarded as a nullity or as putting in issue the acts of commission or omission imputed to the defendant as violations of his contract.  

COUNSEL:
Johnson, for the appellant, abandoned the first exception, and contended for a reversal [**11]  of the judgment upon the second exception. 1st. Because to entitle the plaintiff to recover at all in this form of action, it was necessary for him both to aver and prove that the first kiln of bricks, mentioned in the agreement given upon, was ready for delivery in May, 1821, the time stipulated for that purpose in the agreement. 2d. That if he was entitled to recover upon other parts of the agreement in relation to the remainder of the bricks, he was not authorised to recover for this first kiln. He cited, 1 Saund. Rep. 320. [m 4.] 10 Johns. Rep. 213. 7 Pick. 181. 8 Ib. 178. 6 Harr. and John. 38. Saund. P. and C. 121.

Scott, for the appellee, cited, 1 Wheat. Sel. 383. 2 Hen. Black. 389. 10 Johns. Rep. 203.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*48]  DORSEY, J., delivered the opinion of the court.
After adverting to the state of the pleadings, he said that at the trial of this cause, two bills of exceptions were taken by 

 [*49]  the defendant, the first of which he has abandoned in this court, as also the first prayer in his second bill of exceptions.
The first branch of the second prayer in the second bill of exceptions [**12]  is, "that the plaintiff is not entitled to recover, unless the jury shall find from the evidence, that the first clamp of bricks was ready for delivery by the time stipulated in the contract, provided they find that the delay was not caused by the defendant." This instruction is predicated upon the concession, that the testimony offered was sufficient to warrant the jury, but for this objection as to time, in finding for the plaintiff on all the issues. To test the correctness of the court below, in refusing this direction, the only inquiry to be made is, does the agreement between the parties make this stipulation, as to the time, within which, the first hundred thousand bricks were to be ready for delivery, a condition precedent, the performance of which by the plaintiff, must precede his right to require the defendant to comply with any of the covenants, the infraction of which is made the basis of this action? That such is not the construction given to this contract by the appellant's counsel is obvious, or he would not have made the prayer he did, in the first bill of exceptions; nor the first part of the prayer in the second bill of exceptions; both of which are founded on the [**13]  admission, that the defendant's engagement to deliver the wood is an independent covenant, not at all depending on the time of the burning of the first kiln of bricks. That it was the design of the contracting parties that a portion of the 350 cords of wood should be used in burning the bricks, will not be denied. If so, a part of it must of necessity be delivered before the burning of any bricks. But there is nothing in the contract itself, nor in the intention of the parties to be collected from it, to show that the wood was to be delivered in parcels, as the burning of the bricks progressed. If so, the agreement would have been shaped accordingly, and not have provided, as it has done, that it should be delivered at the stump "when called 

 [*50]  for." Its terms negative such an interpretation. The wood was to be given as a payment of half the price of the whole quantity of bricks to be burnt, and not merely to be used in burning them: as for that purpose, 150, instead of 350 cords, would have been sufficient. We regard therefore, this engagement for the delivery of wood, as an independent covenant on the part of Finley, and with which, he was bound to comply, without [**14]  waiting for the burning of the first kiln of bricks within the time limited by the articles of agreement. This disposes of the first branch of the second prayer, in the second exception. But the second part of that prayer presents a different question. It concedes the plaintiff has a right to recover, but it invokes an instruction of the court to the jury, that nothing is recoverable on account of the bricks burnt in the first clamp. If this point could arise under the pleadings in this cause, it would distinctly present the question, whether the stipulation as to time, is to be regarded as of the essence of the contract, and in the nature of a condition precedent; or as a mutual or independent covenant. Believing as we do, that we are not imperiously required to decide this question as to time, under the issues in the case before us, we mean to express no opinion upon that subject; and we are the more inclined to do so, from the consideration that this point has not been fully argued, and that it will come before us in a much more important suit, now upon our docket. Under the issues joined on the 2d, 3d and 4th pleas, it is manifest as regards time, that no question [**15]  could arise, as those pleas by legal implication admit the truth of all the facts stated in the declaration (of which the time, &c. is one,) except those, which they specifically deny.
It is under the issue joined then, on the plea of general performance, that the appellant must avail himself, if at all, of the violation of the stipulation as to time. And in considering his right to do so, it may not be amiss to premise, that the plaintiff can recover damages for no other breaches than those charged in the declaration, as the specification thereof 

 [*51]  is an implied admission, that the defendant, in all other respects, has complied with his contract. It follows, as a corollary, that the plea of general performance in this case, applies only to those covenants which are alleged to have been broken. If it were otherwise, and according to its literal import, the plea of general performance put in issue every covenant on the part of defendant to be performed, it might produce this strange absurdity, that the plaintiff would recover damages for breaches of covenants, whereof he had never complained; but on the contrary, the performance of which by legal intendment, he had admitted [**16]  by his declaration. To any imaginable declaration which could be framed on the articles of agreement, that form the ground work of the present action, the plea of general performance is inapplicable and vicious. If it be pleaded, even to a debt on a bond conditioned for the performance of covenants, and issue be taken thereon, a verdict on such issue forms no basis on which a judgment can be entered, but a repleader must be awarded. To a declaration like that before us, assigning specific breaches, it must either be regarded as a nullity, or as putting in issue, the acts of omission or commission imputed to the defendant, as violations of his compact. In either aspect, the court below were right in refusing the instruction. The plaintiff avers in conformity to the agreement, that in the month of May, "he did make and burn in a workman-like manner, on the said farm of the said defendant, called Canton, one kiln of bricks, containing 100m bricks, and then and there had the same ready for delivery to the defendant, and did then and there offer to deliver the same." Instead of traversing this fact as he ought to have done, if he intended to rely upon its falsehood as a bar to a recovery,  [**17]  either in whole or in part, the defendant pleads "that the said plaintiff never did deliver to the said defendant, any good merchantable brick whatever;" thus, by legal intendment distinctly admitting the allegation, that the first kiln of bricks was burnt and ready for delivery at the time stipulated. This fact therefore, 

 [*52]  the plaintiff need not prove, and the defendant is precluded from controverting it on the trial. The County Court then, could not do otherwise than refuse the direction to the jury which they were called upon to give. Concurring with them in their opinions in both bills of exceptions, we affirm their judgment.
JUDGMENT AFFIRMED.  

30 of 34 DOCUMENTS 

THE STATE vs. SCHARFF, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 95; 1830 Md. LEXIS 52 

December, 1830, Decided 

PRIOR HISTORY:
 [**1]   This was an appeal from Baltimore County Court, decided at June, 1829.  

HEADNOTES:

In an action upon a collector's bond given to secure the collection of taxes, the collector cannot place his defence on the non-delivery, by the clerk of the County Court, to him, of the rate of the assessment and list of taxable inhabitants, unless he states in his plea, that he had applied for the rate and list to the proper officer, and that he either refused or neglected to furnish them. It is the duty of the clerk to deliver the lists at his office, where all his official acts are done, and the collector should apply for them there.  

COUNSEL:
By Taney, (Attorney General) and Gill for the State.

No counsel appeared for the appellee.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*95]  The opinion of the court, deciding the above question, was delivered by ARCHER, J.  

31 of 34 DOCUMENTS 

GLENN, Trustee of PEASE vs. VON KAPFF.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 132; 1830 Md. LEXIS 3 

June, 1830, Decided 

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

Action of Trover. The declaration stated that the plaintiff, (now appellant) on the 29th of June, 1824, was lawfully possessed, as of his own property, of the lease of two small brick buildings, and one frame building and shed, one steam boiler, &c. and sundry other articles then contained in the said brick and frame building and shed, of great value, &c. and being so possessed thereof, he afterwards, to wit, &c. casually lost the said lease, and the above recited and enumerated goods, &c. out of his possession; and the same afterwards, &c. came to the possession of the defendant, (the appellee) by finding. Yet, &c. The defendant pleaded not guilty, and issue was joined.

At the trial the plaintiff offered in evidence, the petitions and insolvent papers of Adriel Pease and John N. Schultze. The petition of Pease to the commissioners of insolvent debtors, was dated 7th January, 1824. The appellant was appointed his permanent trustee, before the institution of this suit, and Pease was finally discharged by the County Court, under the insolvent debtors' act, on the 25th September, 1824. Similar proceedings were proved in relation to Schultze;  [**2]  and also that the various articles mentioned in the declaration in this cause, were on the     day of January, 1824, the property and in possession of Pease the insolvent. The name of the defendant was not mentioned as a creditor in the insolvent's petitions and papers.

The defendant gave in evidence certain contracts between him and the insolvents, which need not be stated, and a bill of sale, dated 5th January, 1824, from the insolvents to him for the articles mentioned in the declaration. The plaintiff then called John N. Schultze, one of the parties to the said bill of sale, who released to his trustee all his interest in and to said property, and to any residue of his estate which might remain after paying his debts, and offered to prove by such witness, that at the time the said bill of sale was executed, Pease and Schultze contemplated becoming insolvent debtors, and apprised the defendant of such intention, who advised them to make the bill of sale to him, and then to apply for the benefit of the insolvent laws; and also promised to aid them as soon as they obtained the benefit of said laws; and that the said bill of sale was executed with intent to give the defendant [**3]  an undue and improper preference over the other creditors of Pease and Schultze, and every of them. To the admissibility of which witness to prove all or any of the above facts, the defendant objected, 1st. Because the said witness was a party to the said bill of sale, and cannot be heard in a court of law, to impeach his own deed; and 2d. Because it was not competent for him to give evidence to show that he contemplated being or becoming insolvent, within the view of the Acts of Assembly for the relief of insolvent debtors. And the Court (ARCHER, Ch. J., and HANSON, A. J.) being divided in opinion as to the admissibility of the said witness to prove the aforesaid facts, the said witness was rejected. The plaintiff excepted; and the verdict and judgment being against him, he appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

An insolvent debtor who has obtained his final discharge, and released to his trustee all his interest in the property in dispute, and residue of his estate after paying his debts, is a competent witness in an action in which his trustee is plaintiff, to prove, that at the time a certain deed was executed by such witness and his partner to the defendant, who was their creditor, they contemplated becoming insolvent debtors, and apprised the defendant of such intention, who advised them to make such deed, and then apply for the benefit of the insolvent laws, and promised to aid them thereafter, though the effect of such testimony would be to avoid his deed, under our insolvent system.  

COUNSEL:
Johnson and Frick, for the appellant, contended,

1. That John N. Schultze was a competent witness to shew that he contemplated being and becoming an insolvent debtor, within the view of the Acts of Assembly, at the time of the execution of the bill of sale to the appellees. 2. That he was a competent witness, to impeach and [**4]  invalidate the said bill of sale. They referred, in their arguments, to Butler vs. Cooke, Cowper's Rep. 70. Archbold's Digest, 435, 438. Masters vs. Drayton, 2 Term Rep. 497. Walton vs. Shelly, 1 Term Rep. 496. They insisted, that the rule, that a man cannot be heard to impeach an instrument to which he has signed his name, is restricted to negotiable securities. They also cited, Bent vs. Baker, 3 Term Rep. 32. Kenyon's Opinion, 34. Pleasants vs. Pemberton, 2 Dallas's Rep. 197. Baring vs. Shippen, 2 Binney, 154, 168. Winton vs. Saidler, 3 Johns. Cas. 185. Jackson vs. Frost and Haff, 6 Johns. 135. 1 Phillips' Ev. 33, 34, (note a.) Wilson vs. Lenox, 1 Cranch, 201. Ringgold vs. Tyson, 3 Harr. and Johns. 172. 3 Stark. Evid. 17, 37. Rands vs. Thomas, 5 Maule and Selw. 244. 2 Stark. Ev. 298. (note e.) 1 Harrison's Index, 511, 513. Howard vs. Mitchell, 14 Mass. Rep. 241.

Mayer and Learned for the appellee, referred to the act of 1805, ch. 110. The act of 1812, ch. 77. 1816, ch. 121, sec. 6. They contended, that the deed to the appellee did not give a preference, so as to invalidate it under the Act of Assembly. McMechen vs. Grundy and Sons, 3 Harr. and Johns. 185. They cited likewise,  [**5]  Graves vs. Delaplaine, 14 Johns. 146. Wesley vs. Thomas, 6 Harr. and Johns. 24. 2 Stark. Evid. 211. Revere vs. Leonard, 1 Mass. Rep. 91. 1 Day Rep. 17. 2 ib. 121. Cantee vs. Sumter, 2 Bay South Car. Rep. 93. 1 Stark. Evid. 206, 302.  

JUDGES:
This cause came on to be argued before BUCHANAN, Ch. J., EARLE, and MARTIN, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*134]  BUCHANAN, Ch. J., delivered the opinion of the Court.
It is a settled, general rule of evidence in this State, that every person not interested in the event of the suit is a competent witness; the objection going to his credibility rather than to his competency. Here the suit was brought 

 [*135]  by the trustee of an insolvent debtor; it is an action of trover for certain goods held by the defendant, under a bill of sale executed to him by the insolvent, two days before the date of his application for the benefit of the insolvent laws. And the insolvent himself, being produced to prove, that at the time of executing the bill of sale to the defendant, (who is stated to have been a creditor,) he contemplated becoming an insolvent debtor, and so informed him. His testimony was objected to, on the ground that he could not be heard in a court [**6]  of law to impeach his own deed, and his testimony was rejected, upon a misapprehension we think of the rules of evidence before stated, as prevailing in this State, there being nothing that we can perceive, to exempt it from the operation of that rule. The party offered as a witness having released to the trustee all his interest in the property in dispute, and in any residue of his estate which might remain after paying his debts, he had no apparent interest in the event of the suit, and the objection, if any, was to his credibility, and not to his competency. This as a general rule must be acceded to from necessity, if not for the preservation of consistency in the practical application of the law of evidence.
If there are cases in which a man shall not be called to impeach or invalidate an instrument which he has signed, they are exceptions; and we can perceive nothing to bring this case within the exception.
By the insolvent laws a deed or assignment made to a creditor or security, with the expectation of becoming an insolvent debtor, and with the intent to give an under preference to such creditor or security, is declared to be void, and the property attempted to be conveyed [**7]  or assigned, to vest in the trustee of the insolvent debtor. The intention of the insolvent at the time of making the bill of sale in question, was the matter proposed to be proved, and that lying in his own breast, and being a matter difficult, if ever to be proved in such cases, except by disclosures by the party himself, it would seem to be a case peculiarly fit for 

 [*136]  the admission of his testimony; and we think the court below did wrong in rejecting it.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

32 of 34 DOCUMENTS 

THE STATE OF MARYLAND vs. SCRIBNER, and STATE vs. BARKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 246; 1830 Md. LEXIS 14 

June, 1830, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Baltimore City Court.

The indictment in the first case stated, "that Samuel Scribner, late of the said city, a dealer in lottery tickets, on the 7th day of May, in the year 1828, with, &c., at, &c., did sell to a certain Nathaniel F. Downing, within this State, a certain ticket, being then and there part of a lottery ticket of a certain lottery, then and there called the Union Canal Lottery, fourth class, for 1828, and then and there numbered 11, 25 and 33, and which said lottery was not then and there of a lottery granted, or authorized by this State, 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 second count stated "that the said Samuel Scribner, late of, &c., on the 7th day of May, in the year 1828, with, &c., at, &c., did negotiate with a certain Nathaniel F. Downing, one quarter ticket of a certain lottery, called the Union Canal Lottery, fourth class, for the year 1828, which said quarter ticket, was then and there a part of a lottery ticket, of the lottery aforesaid, numbered 11, 25 and 33, and was then and there of a lottery not granted, or authorized by this State,  [**2]  contrary, &c." Third count "that the said Samuel Scribner, late, &c., on the 7th day of May, 1828, with, &c., at, &c., was concerned with a certain other person, to the jurors unknown, in negotiating a part of a ticket, to wit, one quarter of the ticket, numbered 11, 25 and 33, of a certain lottery, then and there called the Union Canal Lottery, fourth class, for the year 1828, which said lottery then and there was not granted or authorized by this State, contrary, &c." The defendant pleaded not guilty, and there was a special verdict which stated the facts of the case, but which need not be repeated here, further than that the paper sold by Scribner was as follows: "E pluribus Unum, No. 1, Policy of Insurance--Sir, please transfer to order of    , that part of the policy of insurance of No. 1, effected at your office, on my account, which relates to, and insures the payment of such prize as may be drawn to quarter 11, 25, 33, as therein named, in Union Canal Lottery, 4th class, for 1828. S. Scribner, 182. D. D. Arden, Washington City."

A motion was then made, on behalf of the said Scribner, in arrest of judgment, which stated among other reasons, that the writing charged to [**3]  be negotiated by the traverser, and that given in evidence to the jury, are neither of them set forth in the indictment, and because the indictment does not charge the lottery ticket, or part of a lottery ticket therein mentioned, to have been in the possession of the traverser, nor is there any such fact found by the jury.

The City Court, (BRICE, Ch. J., M'MECHEN and NISBET, A. J.) sustained the motion in arrest.

The indictment in the second case charged "that Ephraim Barker, late of the city aforesaid, a dealer in lottery tickets, on the 26th day of May, in the year 1828, with, &c., at, &c., did sell to a certain Nathaniel F. Downing, within this State, a certain ticket, being then and there part of a lottery ticket, of a certain lottery, then and there called the Grand Consolidated Lottery, sixth class, for the year 1828, and then and there numbered 26, 39 and 44, and was then and there of a lottery not granted, or authorized by the laws of this State, 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 second count charged "that the said Ephraim Barker, late, &c., on the 26th day [**4]  of May, 1828, with, &c., at, &c., did negotiate with a certain Nathaniel F. Downing, one quarter ticket of a certain lottery, called the Grand Consolidated Lottery, sixth class, for the year 1828, which said quarter ticket, was then and there part of a lottery ticket of the lottery aforesaid, numbered 26, 39, 44, and was then and there of a lottery not granted or authorized by this State, contrary, &c. concluding as the first count. Third count, "That the said Ephraim Barker, late, &c., on the 26th day of May, 1828, with, &c., at &c., was concerned with a certain other person, to the jurors unknown, in negotiating a part of a lottery ticket, to wit: one quarter of the ticket numbered 26, 39, 44, of a certain lottery, then and there called, the Grand Consolidated Lottery, sixth class, for the year 1828, which said lottery, was not then and there authorized, or granted by this State, contrary," &c. concluding as the first count.

To this indictment the defendant, Barker, demurred, and the City Court ruled the demurrer good, whereupon, the present writs of error were sued out by the State.  

DISPOSITION:
JUDGMENTS AFFIRMED.  

HEADNOTES:

By the Act of 1826, ch. 251, declaring that "It shall not be lawful for any person within this State, to have in possession any ticket of any lottery, not granted or permitted by this State, with intent to sell, negotiate or dispose of the same, to sell, negotiate, or advertise in any way whatever, any such ticket or part of a ticket, &c." it was the great object of the legislature to prevent the sale of unauthorized tickets, and for that purpose the law prohibited both the possession of such tickets with intent to sell, and the selling of them: HELD, therefore, that the word "such," did not refer to the possession of the seller, as part of the description of the ticket which it would be unlawful to sell, for that would legalize the selling of tickets by any person, who at the time of the sale had not possession, and defeat the obvious intent of the law.

In an indictment under the above Act of Assembly, the lottery ticket or part of a ticket should be set out--the sale of only such tickets, as are not authorized by the State, is prohibited, and it would be proper that the ticket should be set out, that the Court might see whether it were a ticket, the sale of which was authorized or prohibited.

In all cases of larceny, very particular descriptions of the goods taken have never been considered necessary, and the description given in the law which enacts the offence in statutable larcenies, has in general been deemed sufficient--this doctrine is founded partly on the fact that the prosecutor is not considered as in the possession of the article stolen, and is not therefore enabled to give a minute description; and principally because notwithstanding the general description, it is made certain to the Court from the face of the indictment, that a crime has been committed, if the facts be true.  

COUNSEL:
Taney (Att'y Gen'l.) and Gill, for the State, contended,

1.  [**5]  That the paper writing set forth in the special verdict is a lottery ticket in effect.

2. That in an indictment for selling a lottery ticket, it is not necessary to set out such ticket. They referred to the act of 1826, ch. 251, by which they said three distinct offences were created, and prohibited.

1. The being in possession of a ticket of an unauthorised lottery, with intent to sell. 2. The actually selling of such a ticket, and 3. The being concerned with any other person in such sale. The Legislature intended to put down the sale of these unauthorised tickets; and they forbid not only the being in possession with intent to sell, but the sale of them, even through the intervention of a third person, and though the seller might not be in the possession of them. The object of the Legislature was two-fold; the one was to protect our citizens from the hazards and losses of adventuring in distant lotteries, and the other to increase the revenue derived from the sale of domestic tickets. Upon the subject of the interpretation of penal laws, they referred to 5 Wheat. 76, 94, 96. Cox Digest, 641, sec. 32, 33. They referred also to the Act of 1819, ch. 163. In the case against [**6]  Scribner, the City Court decided, that the question whether the paper was a ticket, or not, was a question of law. They referred to Johnson's Dictionary, definition of ticket, to show that the paper set out in the special verdict, is a lottery ticket. To show that the ticket need not be set out in the indictment, they cited, 2 Harr. and Gill, 407. They referred also to U. States vs. Gooding, 12 Wheat. 474, 476, the act of 1809, ch. 138, sec. 6, 1 Stark. Ev. 217.

Mitchell and Gwynn, for the defendants in error, contended, 1. That the question to be decided is, whether it is lawful to transfer the policy of a ticket, when the assignment is not to be made in the State. The policy they said was effected beyond the jurisdiction of the State, and the transfer was equally beyond it. The holder of a lottery ticket, and the holder of a policy, look to different securities; the first looks to the manager of the lottery; the latter to the underwriter. The assignor of a policy, guaranteeing the payment of a prize, has no interest in the ticket. They insisted, that a law prohibiting an act, not malum in se, cannot be said to be evaded. Where the thing is indifferent in itself, the forbidding [**7]  act can be extended no farther than its very letter will carry it. The principles of criminal justice should be so clearly established, as that whilst the citizen may abstain from what it forbids, he may enjoy what it permits. The question then, is, what does the Legislature forbid? They say you shall not have a foreign ticket in your possession, and that you shall not sell such ticket. The word such, means a foreign ticket in possession of the vendor. The law does not say, you shall not sell foreign tickets at all, but that you shall not sell them whilst you are in possession. U. States vs. Gooding, 12 Wheat. 476. The word such applies to the whole description, and therefore the unauthorised ticket must be in possession of the party, or the mere fact of selling is no offence under the statute. King vs. Munoz, 2 Strange, 1127. 1 East. P. Crown, 453. 1 Hale, 660. 2 Leach. 890. 2. The indictment should have averred that the ticket was not drawn. 2 East. P. C. 601, 600. To show that the indictment should have set the ticket out, they referred to 1 Stark. C. Law, 143, 144. 2 East. P. C. 1114. 2 Maul. and Selw. 386. 1 Leach. 377. Davy vs. Baker, 4 Burr. 2471. They referred also to the act [**8]  of 1809, ch. 154. 1826, ch. 228. 3 Barn and Cress, 183. 1 Black. Com. 88. 1 Chitty C. Law, 198. The act of 1828, ch. 129, sec. 16, and 1826, ch. 67.  

JUDGES:
These causes came on to be argued together, before BUCHANAN, Ch. J., EARLE, STEPHEN, and ARCHER, J.  

OPINIONBY:
ARCHER 

OPINION:

 [*251]  ARCHER, J. delivered the opinion of the Court.
We conceive that there cannot be a reasonable doubt about the construction of the act, upon which these indictments are framed. They are founded upon the act of 1826, ch. 251, which is as follows: "It shall not be lawful for any person within this State, from and after the passage of this act, to have in possession any ticket, of any lottery, not granted or permitted by this State, with intent to sell, negotiate, or dispose of the same, to sell, negotiate or advertise, in any way whatever, any such ticket, or part of a ticket, or in any way or manner, or as an agent, factor, broker, or attorney, for or on behalf of any other person, or persons, to aid, assist, or in any way to have any concern, with any other person in selling any ticket, in any lottery, not granted or authorized by this State." The great object of the Legislature was to prohibit the [**9]  sale of unauthorized tickets, and for that purpose the law prohibits both the possession of such tickets with intent to sell, and the selling of them. To give such an interpretation to the law, as would make the word "such" refer to the possession of the seller, as part of the description of the ticket, which it should be unlawful to sell, would legalize the selling of tickets by any person, who at the time of sale had not the possession. Such an interpretation would defeat the obvious intent of the law. The phraseology of the law, although its construction (being a criminal law) must be strict, does not demand such an interpretation. By the use of the word "such," it was intended to refer to that which had been previously described,--a ticket in a lottery not granted or permitted--that it should be in possession of the seller is no part of the description of the ticket, and the word "such," does not refer to the possession, and it is not therefore necessary to charge the fact of possession in an indictment which makes the sale the alleged offence.
But we conceive that the lottery ticket, or part of a ticket, should be set out in the indictment. It must be recollected that the sale [**10]  of all lottery tickets are not prohibited by law; 

 [*252]  it is only the sale of such as are not authorized by the State; and it would be proper that the ticket should be set out, that the Court might see whether it was a ticket, the sale of which was authorized, or prohibited. It has been supposed, that there can be no greater reason for setting out the lottery ticket in such cases as these, than there would be to set out a bank note in the case of an indictment for larceny of a bank note; but such cases appeared to stand on peculiar grounds. In all cases of larceny, very particular descriptions of the goods taken, have never been considered necessary; and the description given in the law which creates the offence, has in general been deemed sufficient. If one be indicted for stealing a handkerchief, it will not be necessary to describe either its dimensions, or its color; or if he be indicted for stealing a piece of cloth, it would not be necessary to give its length, breadth, or color; and this doctrine is founded in part, probably on the fact, that the prosecutor is not considered as in possession of the article, and is not therefore enabled to give a minute and particular [**11]  description. But in the case before the Court, the presumption of possession would be the reverse, and there would be no inability, or difficulty, to give a minute description, or to set out the instrument.
But the principal reason upon which this law in relation to indictments for larceny is founded, is because, notwithstanding this general description, it is made certain to the Court, from the face of the indictment, that a crime has been committed, if the facts be true. As in the case put of a larceny of bank notes, it is punishable to steal the note of any bank. The crime therefore appears complete, be it the note of what bank it may--so in the other cases put, a crime appears upon the face of the indictment, if the allegation that a handkerchief, or piece of cloth has been stolen, be true, without any other description, for be its kind what it may, it is equally a felony. But had the statute made it felony to steal the note of a particular bank, it would perhaps, notwithstanding the difficulty in general, of giving 

 [*253]  a particular description of any stolen article, have been necessary to have set it out, in order that the Court might see whether it was a note of such [**12]  a description, that a larceny of it might be committed.
These principles will be found to be applicable to all offences, created by statute, where it does not contain a complete description of the offence. As in cases where the counterfeiting of certain instruments, is made forgery. The instrument is set out that the Court may see whether it is within the statute. So also where frauds by means of false tokens, and false pretences are punishable, as there are false tokens, and false pretences not punishable, it is demanded that the particular tokens and pretences be set out, that the Court may see whether the offence is brought within the statute. And the same doctrines are applicable to indictments, under the statute of 9 Geo. 1 ch. 22, for sending menacing letters. The letters must be set out. Now applying these principles to the cases before the Court, for any thing that appears to the Court upon the face of these indictments, the tickets there referred to may have been authorized by the State. It is true, that there is an averment that they are unauthorized, but this will not be sufficient. The tickets must be spread out, that the Court may perceive whether [**13]  they be authorized or not; for if this sweeping averment were received, that which is matter of law, would be given to the determination of the jury.
JUDGMENTS AFFIRMED.  

33 of 34 DOCUMENTS 

THE PLANTERS' BANK OF PRINCE GEORGE'S COUNTY vs. SELLMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 230; 1830 Md. LEXIS 12 

June, 1830, Decided 

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

Assumpsit by the holders, the appellants, against the appellee, John Sellman, the endorser of an inland bill of exchange, commenced July 17th, 1826. The general issue was pleaded.

At the trial the plaintiffs read in evidence the following bill of exchange: "$ 550. Tracey's Landing, August 2d, 1823. Thirty days after date, pay to John Sellman, or order, five hundred and fifty dollars, for value received, and place the same to my account. T. Tongue. Messrs. B. D. and R. Mulliken, Baltimore. Endorsed, John Sellman. Pay to James L. Hawkins, Esquire, Cashier, or order. T. Tyler, Cashier. Accepted, B. D. and R. Mulliken." And proved the hand-writing of the defendant, the endorser of the said note. They also proved, that the same was in due time presented for acceptance, and was accepted; also the demand of payment of the drawer, protest for non-payment and notice thereof to the defendant in due time. The defendant thereupon read in evidence, a letter written by the Cashier of the Planter's Bank of Prince George's County, the plaintiffs in this cause, bearing date the 10th February, 1826, and directed to the administrator of the drawer, Thomas [**2]  Tongue, informing him that the plaintiffs had agreed with the said Thomas Tongue, to receive the amount of the said note, and other notes drawn by him and protested, by installments, to wit, $ 300 every sixty days, and requiring payment of two installments then due.

Thereupon the defendant by his counsel prayed the Court to instruct the jury, that by reason of the said agreement with, and extension of credit to the drawer aforesaid, without the consent of the defendant, the latter was discharged from all liability, and their verdict must be for the defendant, of which opinion the Court (KILGOUR and WILKINSON, A. J.) were, and so instructed the jury.

The plaintiffs excepted, and the verdict and judgment being for the defendant, the present appeal was taken.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action against the endorser of an inland bill of exchange, payable after date, which had been protested for non-payment, and due notice thereof given to the defendant, a letter from the plaintiff to the administrator of the drawer of the bill, dated some time after the bill became due, was given in evidence by the defendant, which stated that the plaintiff "had agreed with the drawer to secure the amount of the said bill, and others, drawn by him and protested, by installments, to wit, $ 300 every sixty days, and requiring payment of two installments then due"--HELD, that in the absence of proof of any consideration to support the agreement mentioned in the letter, the County Court erred in giving an unqualified instruction to the jury, that the defendant was discharged from all liability.

The holder of a bill of exchange may by an agreement with the drawer to give him further time for payment, discharge an endorser.

But it is not every mere naked agreement, by the holder with the drawer for delay, that will discharge the endorser after he has been fixed in his responsibility by non-payment, and due notice given.

It is clear, both on principle and authority, that it must be a binding engagement, without the assent or concurrence of the endorser, and one that will suspend the holder's remedy, and restrain him from bringing suit against the drawer before the expiration of the time given, to the prejudice of the endorser, or so as to affect his rights.

To do this, it must have a sufficient consideration to support it, otherwise it is nudum pactum, and does not affect or suspend the rights of any of the parties.  

COUNSEL:
Magruder, for the appellants, contended,

That admitting that such an agreement, as that referred to in the bill of exceptions, founded on a valuable consideration, would have discharged the endorser, yet in this case, it was an agreement without any consideration, nudum pactum, and therefore does not release the endorser. McLemore vs. Powell, 12 Wheaton, 554, 556.

Alexander,  [**3]  for the appellee.

In the case in Wheat. there was positive proof of the absence of consideration. In this case, the letter of the cashier of the appellants speaks of an agreement, and that term imports a consideration. Wain vs. Warlters, 5 East. 10. The word agreement being introduced in the record, must receive its technical definition. Cabell vs. Vaughan, 1 Saund. 291, (note 1.) Tongue, the drawer, was bound by his agreement to pay the bills, by instalments as stipulated, and if he was bound, so was the bank, mutuality being of the essence of the contract. The promise by Tongue was to pay a precedent debt, or rather debts, first consolidating them and thereby changing the nature of his original undertaking. He referred in his argument to Clopper vs. Union Bank of Maryland, 7 Harr. and Johns. 100. Cro. Chas. 504, 548. Gould vs. Robson and Keymer, 8 East. 576. Wheat. Selw. 36. Boultbee vs. Stubbs, 18 Ves. Jr. 20. Rees vs. Berrington, 2 Ves. Jr. 540.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*232]  BUCHANAN, Ch. J., delivered the opinion of the Court.
This suit was originally brought on a bill of exchange drawn by  [**4]  Thomas Tongue, on Messrs. B. D. and R. Mulliken, payable to the defendant, John Sellman, or order, and by him endorsed to the plaintiff, and protested for non-payment, of which due notice was given to the defendant. The general issue was pleaded, and at the trial the defendant 

 [*233]  gave in evidence a letter written by the Cashier of the Planters Bank of Prince George's County, to the plaintiff, dated after the protest for non-payment and notice, and directed to the administrator of Tongue, the drawer, informing him that the plaintiff had agreed with Tongue to receive the amount of that bill, and other notes drawn by him, and protested, in installments of $ 300, every sixty days, and requiring payment of two installments then due. And upon the prayer of the defendant's counsel, the Court below instructed the jury, that by reason of that agreement with, and extension of credit to the drawer, without the consent of the defendant, the defendant was discharged from all liability, and their verdict must be for him. To this instruction a bill of exceptions was taken on the part of the plaintiff, on which the only question presented to this Court arises; and that [**5]  is, not, whether the holder of a bill of exchange may, by an agreement with the drawer, to give him further time for payment, discharge the endorser, which is a doctrine too well settled now to be examined, but what kind of agreement it must be to work that effect. And we think it is not every mere naked agreement, by the holder with the drawer for delay, that will discharge the endorser, after he has been fixed in his responsibility by non-payment, and due notice given; but clear both on principle and authority, that it must be a binding engagement, without the assent or concurrence of the endorser, and one that will suspend his remedy, and restrain him from bringing suit against the drawer, before the expiration of the time given, to the prejudice of the endorser, or so as to affect his rights--and to do this, it must have a sufficient consideration to support it, otherwise it is nudum pactum, and does not affect or suspend the rights of any of the parties for a moment; but (like any other agreement that is void for want of consideration,) not being binding on the holder, he is not restrained from suing, but is left free to prosecute his rights, as if no such agreement to extend [**6]  the time of payment had been made. And the ground upon which an extension of time by the holder 

 [*234]  to the drawer is held to discharge the endorser after notice of non-payment, being, that the agreement for delay ties up the hands of the holder, and suspends his present rights; it follows, that an agreement which, for want of consideration, is not obligatory on the holder, and does not suspend his remedy or rights, will not have the effect to discharge the endorser. Chitty on Bills, 371, 373, (ed. 1821,) 379, (note C.) Arundel Bank vs. Goble. Walwyn vs. St. Quintin, 1 Bos. & Pull. 652. M'Lemore vs. Powell, 12 Wheat. 554. And why should it? The holder is under no obligation of active diligence. As long as he is passive, all his remedies remain, and he may forbear to sue as long as he pleases; and such forbearance will not operate to discharge the endorser, whose rights are not suspended; but by paying the bill he may regain the possession, and reinstate himself in the ownership of it, and thus become entitled to a remedy on the instrument, against all the antecedent parties. So in the case of a naked agreement by the holder to give time,  [**7]  which being void for want of consideration, is not binding upon him, and does not suspend the rights or remedies of any of the parties. And being therefore no more to the prejudice, and not affecting the rights of the endorser, more than a mere forbearance by the holder to sue, without any express agreement, there is no reason why the endorser should be discharged in one case, more than in the other. But not so in the case of a valid agreement for delay, having a sufficient consideration to support it; which being binding on the holder suspends his remedy on the bill, until the expiration of the time agreed upon. And if in the mean time the endorser discharges the bill, he only places himself in the situation of the holder, with no other rights, and he takes the bill subject to all the equity of the drawer, as against the holder himself, whilst it was in his hands, whose right to sue was suspended by the agreement. Such an engagement therefore does injuriously affect the rights of the endorser, and discharges him from his liability, if made without his concurrence. The only evidence in the record 

 [*235]  in this case, touching the agreement relied upon by the defendant, between [**8]  the plaintiff and Tongue, the drawer, for an extension of credit, is that which is furnished by the letter of the Cashier of the plaintiff, which does not inform us upon what consideration, if any, that agreement was made; if it was for a sufficient consideration, and binding upon the plaintiff so as to restrain him from bringing suit, the defendant was thereby discharged from his liability as endorser; an agreement to receive the amount of the bill by installments being clearly an agreement to give time; but if on the contrary it was for want of consideration nudum pactum, and not obligatory upon the plaintiff, his remedy was not suspended, and the endorser therefore was not discharged. And in the absence of proof of any consideration to support it, we think the Court before whom the cause was tried, erred in the unqualified instruction to the jury, that the defendant was discharged from all liability.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

34 of 34 DOCUMENTS 

IGLEHART vs. STATE use MACKUBIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 235; 1830 Md. LEXIS 13 

June, 1830, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Anne Arundel County Court.

This was an action of debt instituted on the 4th day of September, 1823, in the name of the State use of George Mackubin, on the testamentary bond of William Warfield, executor of Thomas Warfield, bearing date on the 5th of April, 1819, against the appellant, James Iglehart, Junior, one of the securities in said bond. To the plea of general performance by the defendant, the plaintiff filed the following replication: "for plea nevertheless by way of replication, the said State saith, that at a County Court of Anne Arundel County, begun, &c. on the 3d Monday of April, 1822, the said George Mackubin, named in the endorsement of the original writ in this cause, at whose instance and for whose use the same was impetrated, by judgment of the said Court, recovered by confession against the said William Warfield, by the name of William Warfield, late of said County, merchant, executor of the testament and last will of Thomas Warfield, deceased, as well the sum of $ 11,313 50, a certain debt, as the sum of $ 6 52, as for his costs and charges by him about his suit, in that behalf laid out and expended, to be levied of the goods and chattels which were [**2]  of the said Thomas at the time of his death, in the hands of the said William, remaining to be administered, if so much thereof in the hands of the said William to be administered he had, and if so much thereof in his hands to be administered he had not, then the costs and charges aforesaid to be levied of the proper goods and chattels of the said William Warfield; and the said George Mackubin did then and there agree to release the said judgment, upon the payment of the sum of $ 5656 75, current money, with interest thereon from the 19th day of November, 1818, and the said costs; as by the record and proceedings of the said Court now remaining at the city of Annapolis, aforesaid, manifestly appears, which said judgment, in form aforesaid rendered, was for a just and bona fide debt, due to the said George Mackubin by the said Thomas Warfield, in his life-time, and then and not yet being paid or in any manner satisfied; and the said judgment still remains in full force and effect, no ways reversed or annulled. And that after the death of the said Thomas, and at the time of rendering the said judgment, the said William as executor as aforesaid, had of the goods and chattels, which were [**3]  of the said Thomas at the time of his death, in his hands to be administered, to the value of the debt, costs and charges aforesaid, in the said judgment and release thereof mentioned, wherewith the said William, executor as aforesaid, the said debt costs, and charges aforesaid, could have satisfied, to wit, at Anne Arundel County aforesaid. And the said State further saith, that after the rendition of the said judgment, to wit: on the 28th day of June, 1822, the said William Warfield, for reversing the said judgment, prosecuted and sued forth out of the High Court of Chancery of this State, a certain writ of the State, for correcting errors in the record and process, and also in the rendition of the said judgment, directed to the judges of Anne Arundel County Court aforesaid. By which said writ the said judges of the said County Court were commanded, that if judgment be thereof rendered, that then the record and process of the said plea, with all things touching the same, under their seals distinctly and openly they send, and that writ, so that the same might be had before the judges of the Court of Appeals for the Western Shore, to be held at the city of Annapolis, on the first Monday [**4]  of December, then next, that the record and process aforesaid being inspected into, the judges of the Court of Appeals might further do therein for the correcting of that error, which of right and according to the laws and customs of this State ought to be done. And the said William Warfield, immediately on suing out the said writ of error as aforesaid, entered into bond with sufficient sureties approved by the Chancellor in double the sum recovered by the said judgment, with a condition "that if the said William Warfield should not pursue the directions of the act entitled, 'An act for regulating writs of error, and granting appeals from and to the Courts of common law within this province,' at the next Court of Appeals for the Western Shore, and prosecute the same writ with effect, and also satisfy and pay, to the said George Mackubin, his executors, administrators and assigns, in case the said judgment should be affirmed, as well all and singular the debt, damages and costs adjudged by the said County Court, as also all costs and damages that should be awarded by the said Court of Appeals, then that the said bond should be and remain in full force and virtue, otherwise of no effect.  [**5]  " By virtue of which said writ of error the said judges of the said County Court here, afterwards to wit, on the said 8th day of June, 1822, transmitted the record and process of the plea and judgment aforesaid, with all things touching the same, unto the judges of the said Court of Appeals at the city of Annapolis aforesaid. After which, and before the said judgment was affirmed by the said Court of Appeals, the said William Warfield died, and such proceedings were had on the said record in the said Court of Appeals, that at June term, 1823, of the said Court, the said William Warfield's death was suggested, and the said writ of error abated, and was entered abated, as by the said record and proceedings in the said Court of Appeals remaining, more fully appears. And the said State further saith, that after the death of the said William Warfield, to wit, on the 24th day of January, 1823, administration of all and singular the goods and chattels, rights and credits which were of the said Thomas Warfield at the time of his death, left unadministered by the said William Warfield, deceased, executor as aforesaid, was by the Orphans Court of Anne Arundel County, in due form of law granted [**6]  to the said James Iglehart, Jun. and one David Ridgely of the County aforesaid; who on the 11th day of March, 1823, at the County aforesaid sold, and returned to the said Orphans Court in due form of law an account of their sales of, all the goods, chattels and personal estate of the said Thomas Warfield, left unadministered by the said William Warfield, deceased, executor as aforesaid, which came to their hands to be administered, amounting to the sum of $ 71 74 1/2, which said sum is not sufficient to pay to the said George Mackubin the said sum of $ 5656 75, current money, with interest thereon from the 19th day of November, 1818, and the said sum of $ 6 52 costs, in the said judgment, and the release thereof mentioned. And the said State further saith, that after the death of the said William Warfield, to wit: on the 2d day of November, 1822, administration of all and singular the goods and chattels, rights and credits which were of the said William Warfield, deceased, at the time of his death, was, by the Orphans Court of Anne Arundel County, granted to a certain John W. Duvall of the county aforesaid; who, on the 12th day of November, 1822, returned to the said Orphans Court [**7]  in due form of law, an inventory of the goods, chattels and personal estate of the said William Warfield, amounting to the sum of $ 5943 62 1/2, and an additional inventory amounting to the sum of $ 489 33, and on the 3d day of March, 1823, an account of the sales of all the said goods, chattels and personal estate, amounting to the sum of $ 5855 79; and on the 9th day of April, 1824, duly returned to the said Court a list of debts due from the said William Warfield, amounting to the sum of $ 12,420 96, and the said State saith that the amount of the said sales, and of all the goods and chattels, rights and credits, and personal estate, which were of the said William Warfield at the time of his death, are not sufficient to discharge and pay to the said George Mackubin, the said sum of $ 5656 75, current money, with interest thereon from the said 19th day of November, 1818, and the said sum of $ 6 52, costs in the said judgment, and the release thereof mentioned, and also to discharge and pay the other debts due from the said William Warfield at the time of his death. And the said State further says, that execution of the judgment aforesaid, yet remains to be made to the said George [**8]  Mackubin. Nevertheless the said William Warfield, as executor as aforesaid, although often thereunto requested, by the said George Mackubin, hath not yet paid or satisfied to the said George Mackubin, the debt, damages, costs and charges aforesaid, in the judgment aforesaid mentioned; but hath altogether refused to pay the same to the said George Mackubin. And so the said State says, that the said William Warfield, executor as aforesaid, hath not paid the debts of the said Thomas Warfield, which he did owe at the time of his death, so far forth as the goods, chattels and credits, which were of the said Thomas Warfield at the time of his death, would extend, and the law would charge, as he ought to have done, but hath wasted and misapplied the same, contrary to the form of the condition of the writing obligatory aforesaid; and this the said State is ready to verify, &c. Wherefore, &c."

To this replication the defendant rejoined as follows:

"And the said James Iglehart, Jr. comes, &c. and as to the replication of the said State he saith, that the said State ought not, &c. because he the said James saith, that the said William Warfield in the condition of the writing obligatory [**9]  mentioned, had no goods or chattels which were of the said Thomas Warfield, at the time of his death, in his hands to be administered, nor had at any time thereafter, and this he is ready to verify. Wherefore he prays judgment, &c." General demurrer by the plaintiff to the defendant's rejoinder, and joinder in demurrer. The County Court ruled the demurrer good, and rendered judgment for the plaintiff. Whereupon the defendant sued out the present writ of error.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

G obtained judgment by confession against W, as executor, who thereupon stayed execution by a writ of error and bond. While the case was pending in the appellate Court, the executor died, and the writ of error was abated. The executor, who had received assets sufficient to pay the judgment, died insolvent, and the administrator d. b. n. of the first deceased, did not find assets sufficient to discharge the debt. In an action upon W's testamentary bond, against his surety, for the use of G, a replication disclosing the above facts, was held sufficient on general demurrer and a compliance with the act of 1720, ch. 24.

In this case the defendant rejoined, "that the said executor had no goods or chattels which were of the deceased testator, at the time of his death in his hands to be administered, nor had at any time thereafter:" HELD, on demurrer, that this rejoinder could not be received as a general plea, extending over the whole time from the death of the testator to the death of the executor, that no goods of the deceased ever came to the executor's hands; for its relative expressions "nor at any time thereafter" evidently indicated a particular point of time, when the executor was without goods or chattels with which to pay the debt, as they implied a period of time when he had such goods and chattels--that it could only be considered as a plea of plene administravit, or a substitute for such a plea, and as such, it was materially defective.

Upon general demurrer, it is the duty of the Court to look to, and adjudicate upon all the pleadings in the cause.

The confession of a judgment by an executor is conclusive on him, as well as to the debt confessed, as to the sufficiency of the assets to pay it; but in relation to his surety, in his testamentary bond, it is only prima facie evidence, either as to the debt, or sufficiency of assets to pay it.  

COUNSEL:
Magruder and Shaw, for the appellant, contended,

1. The court below erred in ruling the demurrer to the defendant's rejoinder to be good. 2. That the matters set forth in the replication do not preclude the appellant from shewing a deficiency of assets of the estate of Thomas Warfield. 3. That the appellee cannot maintain this action, it being too rigorous a prosecution of the testamentary bond. 4. That the first error in pleading was committed by the appellee. 5. That the rejoinder is good. 6. That the appellant cannot be made responsible beyond the condition of his bond.

By demurring to the plea of no assets, the plaintiff has admitted, that the executor confessed a judgment when there were [**10]  not sufficient assets in his hands, and this admission by the plaintiff should do away the effect of the judgment, as evidence of assets against the executor. If, however, the judgment should be deemed conclusive as against the executor, it cannot be so with respect to his surety, otherwise the rule that no man shall be bound by a judgment which he could not defend, will be destroyed. This is not like the case of a surety on an appeal bond, who stipulates positively to pay, if the judgment be affirmed. The actual amount of the assets is the limit of the responsibility of the surety, and the executor cannot extend it, by confessing judgment for a larger amount. Confessions in court are entitled to no more weight than confessions out of court. They are merely prima facie evidence. Drummond vs. Prestman, 12 Wheat. 515. It does not follow, that because the party confessing the judgment is concluded, that others interesting in defeating it, shall be equally concluded. 2 Bro. Ch. 610. If the defendant cannot plead a want of assets, then the judgment against the executor must be an estoppel, and in that case, it should have been pleaded as such. 2 Chitty Plea. 592. The plea of no assets,  [**11]  is a legal defence, and the defendant should be allowed the benefit of it, unless he has once before had an opportunity of doing so, and waived it, but this is not the case, as he is now for the first time in Court--the judgment set forth in the replication does not amount to an admission of assets--it is nothing more than an admission of the debt, Act 1798, ch. 101. The replication does not show the estate to be insolvent--the list of debts returned is not evidence of their existence, and many of them may have been defeated; 1820, ch. 174, sec. 7. In proceeding against a surety, it is indispensable to show a devastavit, by the executor--now non-payment of a debt is no devastavit, because the executor may not have been able to get in the assets, 1 Saund. 219, (B) note 8. The replication does not charge that the administrator d. b. n. of Thomas Warfield, had not paid the debt, and he was the party to pay upon the death of William, the first executor, during the whole of whose life the debt was in litigation; if the administrator d. b. n. is the party liable, then the plaintiff has sued the wrong person, and his replication is totally defective. They referred to the Acts of 1820, ch.  [**12]  24--1802, ch. 101, sec. 1--1806, ch. 90--1815, ch. 149. Seegar vs. The State, 5 Harr. and Johns. 488. Quynn vs. The State, 1 Harr. and Johns. 37. M'Mechen vs. Mayor of Baltimore, 2 Harr. and Johns. 41. Johnson vs. State, 3 Harr. and M'Hen. 223. Beall vs. Beck, Ib. 242. 1 Com. Dig. 215. 3 Stark. Ev. 1387, note (3.) Ib. 1300. 1 Phil. Ev. 242, 248. Drummond vs. Prestman, 12. Wheat. 515.

Taney (Att'y Gen'l) and Brewer, Jr. for the appellee.

1. The case is so presented by the record, that this Court cannot reverse the judgment. The Act of 1825, ch. 117, was designed to make the Court of Appeals purely an appellate Court, and the appellant must show, that the points which he urges here, were actually raised, and decided by the County Court; now the question of assets, and whether there was a devastavit or not, do not appear to have been raised in the Court below--the decision there, may have been on the defectiveness of the rejoinder. 2. The judgment is conclusive as to assets, whatever may be said of the devastavit, and being conclusive, supposing both the replication and rejoinder to be good, the plea of plene administravit, or no assets, could not be pleaded. 3. Whenever an [**13]  executor or administrator is bound, de bonis propriis, his sureties are equally bound--if this suit was against the administrator, he would be held liable de bonis propriis, and if so, the sureties being liable in the same bond, and for the performance of the same duties, are equally bound. If there be any case in which a judgment against one person, should be evidence against another, it is a case of this sort--the party against whom the judgment must first be obtained, is he who has the best, and only means of disputing either the debt, or assets--suppose the creditor is defeated in his suit against the administrator, is he not bound by it? can he afterwards sue the security?--he certainly could not, and it would seem to be right, that as a judgment in favor of the administrator would be conclusive evidence for him, that a judgment against the administrator should be conclusive against him. 4. But suppose the judgment is only prima facie evidence, still the judgment below must be affirmed--the replication states a good cause of action, and the rejoinder is defective in not averring that the administrator had no assets, at the time of the institution of the suit--2 Saund. 216, note [**14]  (1.) It is not pretended that a nulla bona was indispensable to suing the bond. Act 1820, ch. 24--they referred also to 2 Chitty Plea. 451, the Act of 1802, ch. 101, sec. 1. 1 Saund. 219, (A) note (8) (C.) Erving vs. Peters, 3 Term. Rep. 685.  

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

OPINIONBY:
EARLE 

OPINION:

 [*244]  EARLE, J., delivered the opinion of the Court.
The controversy between these parties, arises from an action by the appellee against the appellant, as a surety in the testamentary bond of William Warfield, executor of Thomas Warfield, to recover the amount of a judgment obtained against the executor. The judgment was appealed from, and pending the appeal the executor died, not leaving sufficient estate to pay his debts. All this matter is set forth at large in the replication, as well as an administration de bonis non, on the unadministered estate of Thomas Warfield, which amounted to a very trifling sum, wholly inadequate to the payment of the appellee's judgment. To this replication the defendant, now the appellant, put in a rejoinder, (ante 240) which drew from the adversary pleader a general demurrer, and its legal [**15]  sufficiency is the first question to be decided by this Court. This rejoinder is clearly not to be received as a general plea of nulla bona devenerint ad manus, extending over the whole time from the death of the testator to the death of the executor for its relative expressions, "nor at any time thereafter," evidently indicate a particular point of time, when the executor was without goods or chattels with which to pay the debt, as they imply a period of time, when he had such goods and chattels. We can consider it only as a plea of plene administravit, or a substitute for such a plea, and so considering it, the plea appears to us to be materially defective. The point of time, when the executor was without goods or chattels to answer the demand against him is not specified, and is left in uncertainty and doubt; and the plea omits the words "and that he had not any goods or chattels of the testator, on the day of issuing out of the original writ, or ever after," which words are essential, and without which, it is bad on demurrer. 2 Saund. Rep. 216, note 1. A general demurrer having been put in to the rejoinder, it became the duty of the Court below, to look to, and [**16]  adjudicate upon all the prior pleadings in the cause, and presuming they did so, we proceed in the next place to examine the replication 

 [*245]  in the record, and give our ideas of it. The matter of this plea is ample, comprising all that is made requisite by the act of 1720, ch. 24, with which we have carefully compared it; and it appears also to us to be well pleaded. The fieri facias was arrested by the appeal, and no return of course was made of nulla bona, but its equivalent is fully stated, and satisfactorily demonstrates, that the creditor was remediless by any other reasonable means, save that of suing the testamentary bond. Our judgment must consequently be in affirmance of the judgment of Anne Arundel County Court; yet before we leave the case, we think it right in a short way to express our opinion on a point argued before us, which is closely connected with this subject, and is interesting to the public to be settled. The confession of a judgment by an executor is conclusive on him, as well as to the debt confessed, as to the sufficiency of the assets to pay it; but what legal effect it has on the rights of his surety, in the testamentary bond, is the [**17]  question to be solved? Not being a party to the judgment, he cannot be concluded by it, although his liabilities depend on the acts and confessions of his principal. It seems to us, therefore, that in determining his rights, the judgment against the executor, ought to be considered to have but a prima facie influence, either as to the debt recovered, or the sufficiency of the assets to pay it. As to him it is nothing more than the declarations or confessions of the principal, clothed with legal solemnities, and should only be deemed in all respects correct, until the contrary is made to appear. This opinion is in accordance with Drummond vs. Prestman, 12 Wheat. 515, and apparently so, with a case there cited, from 15 Mass. 6, which book unfortunately we have been unable to procure. It is opposed, however, to Beall vs. Beck, 3 H. & McH. 242; unless that case is to be understood, as construed by the Supreme Court of the United States in Drummond vs. Prestman, in which sense we acknowledge its authority.
JUDGMENT AFFIRMED.