1 of 43 DOCUMENTS 

CUMBERLAND DUGAN vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE--THE MAYOR AND CITY COUNCIL OF BALTIMORE vs. DUGAN & M'ELDERRY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 357; 1833 Md. LEXIS 12 

June, 1833, Decided 

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

The amended bill, which was filed in 1831 by the appellant in the first case, and Thomas M'Elderry, since deceased, and which by agreement was received as an original, and in lieu of the first bill, filed in September, 1806, stated, that before the 10th of February, 1794, a parcel of ground situate in the then town, now city of Baltimore, and opposite Harrison street, beginning in Baltimore street and running thence, &c. of the width of 150 feet to Water street, with the privilege of extending the same to the channel, was vested in the commissioners of Baltimore town and their successors, with power to hold the same for the benefit of the said town, under and by virtue of an act of Assembly of this State, of 1784, entitled "an act for establishing new markets, and building market houses in Baltimore town, and for the regulation of the said markets." That on or before the said 10th of February, 1794, the said Dugan was seized in fee of the ground now occupied by Pratt street, on the west side of Market space, and adjoining thereto, and running from the north side of the street to the water--and said M'Elderry was seized in like manner of [**2]  the ground on the east side of the aforesaid Market space, and also running from the north side of said street to the water. And that the said commissioners of Baltimore town, and the said Dugan and M'Elderry, being so entitled respectively, to the said several parcels of ground, they the said Dugan and M'Elderry, on the 10th of February, 1794, proposed to the aforesaid commissioners to extend the Market space at their own expense, in the water, to the channel, upon certain terms and conditions, which, with some modifications, were accepted and agreed to by the said commissioners, as will appear by a copy of the agreement herewith exhibited. That immediately upon making this agreement they proceeded to fill up the space, and to make the canal, wharves and streets mentioned therein, and fully completed the same in the year 1795 and 1796, and that they have in all things on their part complied with said agreement, at great personal expense to them respectively. That when these improvements were commenced, the usual and common tide at the said Market space, flowed up to, and over Water street, and that they filled up and made fast land, the whole space from Water street to the south side [**3]  of Pratt street, of the breadth of 150 feet, and extending into the water for the distance of 300 feet, and made canals, with wharves, and a street on each side, by means whereof an unwholesome marsh has been converted into firm ground, and become a convenient and commercial part of the city. That by virtue of the aforesaid contract, and the laws of this State, the complainants had a right to demand and receive wharfage from vessels lying at the wharves so made by them, and that such right will continue, until the right reserved by the commissioners in the contract, to fill up the said canal, and the whole space of 150 feet, shall be exercised, which has not yet been done, either by them or their successors, or by the Mayor and City Council of Baltimore. That from the time said wharves were in a condition to be used, the complainants have exercised the right to charge wharfage, and continued to do so, during the existence of the Board of Commissioners, and for some time after their powers were transferred to the Mayor and City Council of Baltimore, without hindrance or molestation. That by the act of 1796, the powers and authority which had been delegated to the Commissioners, were [**4]  all transferred to, and vested in the Mayor and City Council of Baltimore, who sometime thereafter began to suggest doubts of the title of complainants to the aforesaid wharfages, and finally prevented them altogether from receiving the same, and took them into their own possession. Prayer, for an account, an injunction, and for general relief.

Exhibit A, referred to in the bill, is as follows:

"To the Commissioners of Baltimore town,

GENTLEMEN,--We the subscribers, request your permission for making a canal and wharf, at our expense, in the Market space, from the south side of Pratt street to the channel, or warden's line. The canal to be 80 feet wide, and the streets on each side the same to be 35 feet wide. The said canal, wharf and streets to be made public for the use of the inhabitants, under the laws and regulations of your board, and the whole of the same to be relinquished up to the commissioners whenever the same, or any part thereof, may be wanted for market houses.

CUMBERLAND DUGAN,

THOMAS M'ELDERRY.

Baltimore, 10th February, 1794."

"The commissioners of Baltimore town having considered the above application, have no objection to Thomas [**5]  McElderry and Cumberland Dugan filling up the space of 150 feet wide, on a line with the present Market space from Water street, as far as a line drawn from the south side of Pratt street shall intersect or cross the said space, and after filling up the said space the commissioners have no objection to their making a canal from the same line of intersection to the channel, of 60 feet wide with wharves, and a street on each side of said canal of 45 feet wide, but with this express declaration, that the privilege of filling up said canal, and of the whole space of 150 feet wide, be fully reserved to the said commissioners and their successors, for the use of said town, as granted by the act of assembly of November session, 1784, ch. 62, entitled an act for establishing new markets, &c., and also on this express condition, that the said canal, wharves and streets, on each side of the said canal, be a common highway, and free for the public use, and subject to such regulations as the commissioners and their successors shall, from time to time, establish; and on this further express condition, that the said Dugan and M'Elderry extend Pratt street through their two lots of ground on each [**6]  side of Market space, and leave Pratt street of the width of 60 feet through their said lots forever, as a street for the public use."

The answer of the Mayor and City Council of Baltimore admits the preceding to be a true copy of the application to, and agreement between, the complainants and the commissioners of Baltimore town, and insists that under the same, and in virtue of the laws of this State, they are entitled to receive the wharfages which have, and may be received for the use of the wharves, at the head and sides of the canals, made as aforesaid by the complainants, they, the defendants being the sole owners of said wharves, and of the ground whereon they are erected. That by an ordinance, passed in 1801, it was enacted, that all monies, arising to the city from wharfages, be specially appropriated to the improvement and cleaning out of the particular wharves and docks, from which the same was collected, that the said ordinance has been duly carried into effect, and continued in force when the present bill was filed. That the Mayor, in virtue of said ordinance, appointed the complainants commissioners to execute the same in reference to the wharves mentioned in their [**7]  bill, and that they accepted the appointment, and continued to execute the powers thereby conferred on them until the time of its exhibition. That the defendants now have a right to all the ground on the south side of Baltimore street, and running south parallel to Gay street, for the width of 150 feet to Water street, with the right to extend the same to the channel of the basin of Baltimore, and that the commissioners erected a market house on the said piece of ground for the use and benefit of the inhabitants, which is now standing.

The bill of the Mayor and City Council of Baltimore against Cumberland Dugan, which was filed on the 1st of March, 1830, after alleging the facts contained in the foregoing bill and answer, and asserting the right to be in the complainants in this case, proceeds to state, that Dugan had received a considerable amount of wharfages, of which it prays an account, that a receiver may be appointed to receive and hold those thereafter to accrue, pending the controversy, and for an injunction, all of which was granted by the chancellor.

Dugan answered this bill, affirming the right to be in him.

The two cases were set down for final hearing together,  [**8]  and argued at the same time before the chancellor.

BLAND, Chancellor, on the 13th June, 1831.

These cases standing ready for hearing, and the solicitors of the parties having been heard, they were by consent, permitted to stand over, with leave to amend the pleadings, and the amendment having been made, they were submitted on the 4th inst. and the proceedings read and considered. Upon the whole, I am of opinion that the wharves in the proceedings mentioned, are public wharves, no more liable to wharfage, than any one of the streets of the city are liable to toll. That these wharves, like the streets, are to be regulated and kept in repair at the expense of the city alone, and that for the purpose of protecting the rights and interests of the public, each of these parties must be prohibited from collecting wharfage or toll of any description for the use of these wharves.

The chancellor thereupon ordered the cases to be consolidated, and prohibited and enjoined both parties from receiving any wharfage or toll for the use of the wharves in question.

From this decree Dugan and the City prayed an appeal to this court.  

DISPOSITION:
REVERSED AND REMANDED.  

HEADNOTES:

By the act of 1784, ch. 62, it was declared, that, &c. shall have power and authority to build and erect a market house on a parcel of ground, situate in the town of Baltimore, opposite Harrison street, beginning in Baltimore street and running thence S. of the width of 150 feet to Water street, with the privilege of extending the same to the channel; and that the market house, when erected, and the ground whereon the same shall be built, with the privilege aforesaid, shall be vested in the commissioners of Baltimore town, and their successors. In pursuance of this power a market house was built to Water street. The space south of the market house to the channel was a continuous marsh, covering the width of 150 feet. D and M owned lots on the east and west of the space adjoining the same, and extending south to the waters of the harbor of Baltimore. In 1794 they applied to the commissioners of the town of Baltimore for permission to make a canal and wharf, at their own expense, in the market space, from the south side of Pratt street, (which was in fact the south side of their own lot) to the channel or warden's line of the basin of Baltimore. The canal to be 80 feet wide, and with streets on each side of the same. The canal, wharf, and streets, to be made public for the use of the inhabitants, under the laws and regulations of the Board of Commissioners; and to be relinquished up to the commissioners whenever the same, or any part thereof, might be wanted for market houses. The Commissioners granted the request, with the declaration "that the privilege of filling up the canal, and of the whole space of 150 feet wide, be fully reserved to the commissioners and their successors, for the use of the town according to the act of 1784, ch. 62--and that the canal, wharves and streets on each side of the canal, be a common highway, and free for the public use, and subject to such regulations as the commissioners and their successors shall, from time to time, establish; and that D and M extend Pratt street through their lots of ground on each side of Market space, and leave Pratt street through those lots forever as a street for the public use." Under this authority D and M opened Pratt street, and made fast land from Water street south to the channel, and built a canal or dock with the streets adjoining, as contemplated. After this, both the corporate authorities and D and M claimed to collect wharfage from vessels using the dock--and upon cross bills filed, it was held.

1. That the act of 1745, ch. 9, sec. 10, which declared "that all improvements of what kind soever, made out of the water, shall, as an encouragement to such improver be forever deemed his inheritance," did not apply to this case--That the improvement in front of the market house lot was not such a one as was justified by the act of 1745.

2. That the entire parcel of ground from Baltimore street to the channel, 150 feet in width, by the act of 1784, ch. 62, was vested in fee in the town Commissioners and their successors, with power to reclaim the marsh for the convenience of persons frequenting the market house.

3. That it was not the design of the commissioners to give D and M any right of property in the proposed improvement, and that they have no right to wharfage.

4. That the improvements, when made by D and M vested in the town commissioners, in the same manner as they would have done if made by the commissioners, and that therefore, the corporation of the city of Baltimore had the right to collect wharfage from persons using the dock in question.

5. Over wharfage collected at private wharves, or wharves other than those owned by the town or city of Baltimore, or made at the ends or sides of public streets, lanes or alleys, the town or city officers have no control. Its imposition and collection is the exclusive privilege of the wharf owners. It is otherwise with wharfage collected at wharves owned by the town or city, or at the ends or sides of the streets, lanes or alleys--all these are called public wharves. 

COUNSEL:
Gill, for Dugan contended,  [**9]  

1. That he is to be considered as an improver, under the act of 1745, ch. 9, sec. 10, and entitled to an estate in fee in the wharf in question, of a qualified character; and though made without authority, it was not the design of the legislature, that the port wardens should destroy such improvements, without a previous judicial investigation, nor could they exercise such a power, under the act of 1783, ch. 24, sec. 9, consistently with the 18th section of the bill of rights. The mode of proceedings to procure a demolition of the improvement, is designated by the statute, and must be pursued. Cox's Dig. 639, 646. 2 Cranch, 358, 386. 3 Cranch, 338.

2. That the qualification annexed to the estate in Dugan, is the right of the corporation of Baltimore to extend the marsh market and market house to the channel. That is the only right which the corporation is at liberty to exercise. It can take the property and interrupt the right of Dugan for that, but for no other purpose. 1784, ch. 62. This right in the city is a mere incorporeal hereditament, and not a legal right to the soil, until it is taken and used for the purposes of the legislative grant. Canal vs. Rail Road Co. 4 [**10]  Gill and Johns. 1. It is a right which the commissioners had no power, either to transfer or trammel by contract or agreement, and consequently the arrangement between them and Dugan and McElderry in 1794, is a mere nullity and void.

3. That until the corporation does require the property in question for a market, Dugan has a right to wharfage, as a compensation for his improvement, as far as the public think proper to use the wharf, and this under the act of 1745, ch. 9, sec. 10.

4. That if upon the construction of the agreement between Dugan and the commissioners, Dugan had no right to wharfage, neither has the corporation of Baltimore.

5. By the act of 1784, ch. 62, sec. 1, certain persons were authorised to build and erect a market house on a parcel of ground, beginning on Baltimore street, and running south of the width of 150 feet to Water street, with the privilege of extending the same to the channel. The market house when erected--the ground whereon the same shall be built, and the privilege aforesaid is vested in the town commissioners. What is the true construction of this act? What estate does it give the commissioners? The legislature designed the market [**11]  house presently intended to be built, should stop at Water street. The house thereafter to be erected might extend to the channel--Hence, it vested a present estate in the house and the ground whereon the same shall be built, in the commissioners. It gave them no more estate. Then the privilege is introduced. That gives a right in future, when the privilege should come to be exercised. Its nature would carry the right to reclaim the marsh, and make fast land to the channel. The exercise of the privilege must carry the fee. But still, this is but a privilege, and no immediate estate in the soil. In the mean time it was subject to the act of 1745. It was not intended that this noxious marsh should not be reclaimed by the adjacent proprietors, as in other cases, reserving the public right whenever the trade, extent of population, or judgment of the town authorities should make it necessary to extend the market house. That time has not arrived; and hence, the improvers, who have conferred a great benefit upon the public at large, out of their private fortunes, ought to have the incidental advantage of wharfage. The court can only regard the privilege created by the act of 1784, as a limitation [**12]  upon the right which the improvers, as water lot proprietors have, under the act of 1745. Their estate to continue valid until the privilege comes to be exercised; and this view does justice to all. If these views are erroneous then there is no equity, looking to the letter and spirit of the permission of 1794, in giving the city of Baltimore wharfage, while it is refused to the proprietors. The word "free," in the permission, means free to all, and free for all purposes. Common highways are not burthened with tolls, except where the law enacting them, expressly so declares, which is not the case here.

Belt and Johnson, for the Mayor and City Council of Baltimore.

The bill of 1831 is alone to be regarded, and that bill asserts no right under the act of 1745. It refers, for the rights of Dugan and McElderry, exclusively to the agreement of 1794. There can, therefore, be no necessity for inquiring into rights which may have been acquired under the act of 1745, though none such as is asserted on the other side, could have been so acquired; because the act of 1784, ch. 62, vested the right to improve the property in question, in the city commissioners. After the passage of the [**13]  act of 1784, it is impossible that Dugan and M'Elderry could be authorised to make these improvements, without the consent of the commissioners, as the whole power was conferred on them by that act. The case therefore depends on the agreement of 1794--act of 1762, ch. 34. All the rights and powers of the commissioners were by the act of 1796, ch. 68, transferred to the present corporation of Baltimore. By the answer of the commissioners to the application of Dugan and M'Elderry in 1794, all the rights of the former, under the act of 1784, are reserved. If Dugan has a right to charge wharfage, he has an equal right to charge tolls for navigating the canal, and from passengers on the streets. The terms of the act are the same with respect to each. By the permission granted by the commissioners, the wharf, &c. is to be free for the public use, and yet if the right claimed exists, the charges may be so extravagant as to preclude the public altogether from the use of them. If the act of 1745 gives Dugan the right demanded, then as that act in relation to the subjects to which it applies, gives a fee in the property improved, he might have appropriated the whole to himself as private property.  [**14]  There can be no doubt that the improvement was made under the agreement, or permission of 1794, the only construction of which is, that the wharves, &c. thereby authorised to be made, should be for the public use, free of expense.

On the appeal of the city they contended that the act of 1784 expressly gives to the commissioners the privilege of extending the 150 feet front to the channel, and not merely to extend the market house, and the ground when extended, vested in the commissioners, to be applied by them to any purpose they might think proper, for the advantage of the town of Baltimore. And the rights conferred by the act of 1784, never have been attempted to be impaired by subsequent legislation. It will not do for Dugan to say that the wharf is free under the permit of 1794, because he is now himself asserting the right to exact wharfage for his own emolument. By the permit, Dugan was only to make the improvements. He was under no obligation to keep them in repair. This the city is bound to do, and it would be strange if they are not entitled to the profits, out of which they might do so. These profits are the appropriate fund for defraying the expense--act of 1783, ch.  [**15]  24. And in point of fact, the funds thus derived, have been so applied by the city. Ord. 24th April, 1797--19th March, 1798--21st March, 1801.

The true construction of the agreement of 1794 is, that as to Dugan, the wharf was to be free, but as, under the reservation, it was to be subject to such regulations, as the commissioners should prescribe, the right of the city to charge wharfage was not impaired. The right to regulate carried with it the right to collect wharfage, as a necessary part of the power reserved. There can be no doubt, that when the wharf was completed, the fee was in the commissioners; they having the right to resume it, when, and for any purpose they pleased; and of course they could resume it for the purpose of charging wharfage. The agreement of 1794 dedicates the wharf, when made, to the public. Dugan, as an individual, can claim no right under that agreement. The public by the contract is the grantee, and it might of course, impose any incumbrance it thought fit upon its own rights, and the right of the corporation is admitted by the act of 1813, ch. 118. By this act the past right of the city is conceded, and the act only denies, the right for the future;  [**16]  and the law being found injurious was repealed by the act of 1827, ch. 162, which expressly confers upon the city the right to charge wharfage for the future. The ordinance of 27th February, 1826, authorised the Mayor and City Council to collect wharfage on this identical wharf, and this ordinance was in force when the act of 1827 was passed.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*367]  DORSEY, J., delivered the opinion of the court.
The appeal of Dugan and M'Elderry against the Mayor and City Council of Baltimore, will first be considered. The right of the appellants to collect the wharfage in question, has in the argument, been asserted to arise under the act of assembly of 1745, ch. 9, sec. 10; which, in reference to the town, now city of Baltimore, declares "that all improvements, of what kind soever, either wharves, houses, or other buildings, that have, or shall be made out of the water, or where it usually flows, shall, as an encouragement to such improvers, be forever deemed the right, title, and inheritance of such improvers, their heirs and assigns forever." But this act of assembly gives no [**17]  support to the claims, in aid of which it has been invoked. The improvement made by Dugan and M'Elderry, in front of the market house lot, is not such an improvement as is justified by that act of assembly. So to construe it, would be to give it a literal, not a sound, or rational interpretation. The improvements 

 [*368]  authorized and encouraged were those made by improvers in front of their own lots, not of their neighbors. The legislature never designed such invasion of the rights of private property; nor indeed had they the power to legalize it, if such had been their intention. But if this act of assembly could have sustained the appellant, he has waived all claim to relief under it, by withdrawing his first bill of complaint, and filing his third as a substitute therefor. His title to wharfage, if it existed at all, is derived from the permission for his improvement, granted in 1794, by the commissioners of Baltimore town. This permission, or contract, if it may be so called, is, it has been insisted, on the part of the appellants, a nullity, and discharged of all obligation as respects Dugan; because the town commissioners having, under the act of 1784,  [**18]  ch. 62, no power to extend their grounds but in the extension of the market house, could confer no such authority as that which had been exerted by Dugan and M'Elderry. This assertion is in direct contradiction to the positive allegations contained in their bills. To ascertain its correctness, however, it becomes necessary to examine into the nature and extent of the interest of the town commissioners in the market house property, and the "privilege" of extension therewith conferred. If, as is alleged, this "privilege" was nothing more than the extending the market house to the channel of the basin, it is evident that Dugan and M'Elderry derived from the commissioners no such authority as that which has been exercised under the permission.
The solution of this inquiry depends entirely on the true construction of the second section of the act of 1784; which enacts that Samuel Smith and others, "shall have full power and authority by this act, to build and erect a market house on a parcel of ground, situate in the said town, opposite Harrison street, beginning on Baltimore street, and running thence south, parallel with Gay street, of the width of [**19]  one hundred and fifty feet, to Water street, with the privilege of extending the same to the channel; and 

 [*369]  that the said market house, when erected, and the ground whereon the same shall be built, with the privilege aforesaid, shall be, and is hereby declared to be vested in the said commissioners of Baltimore town and their successors forever, from and immediately after the said market house shall be built and erected; to hold, possess, and enjoy the same market house, ground and privilege aforesaid, to and for the use and benefit of the said town, in as full and ample manner as if the said commissioners had been legally constituted a body politic and corporate, in deed and in name; provided always, that the said Samuel Smith and others, shall erect and build the said market house in a good substantial workman-like manner, according to such plan and dimensions as the commissioners of Baltimore town shall approve, on or before the first day of March, in the year one thousand seven hundred and eighty-seven." What vested in the commissioners of Baltimore town, under this legislative provision, is the question to be determined?
That the market house, when [**20]  built, passed to them is undeniable; but what quantity of ground was transferred with it, is a matter not so self-evident. To give to this enactment a superficial examination, a literal interpretation, and it might be said, that no more ground passed to the commissioners than that which the market house built, actually occupied. But when we advert to the size of the ground, the privilege conferred as to its extension, the nature of a market house, its probable dimensions, the facilities necessary to its beneficial enjoyment, and the benevolent designs of the legislature manifested in relation thereto; it is impossible to doubt that they intended to vest in the commissioners the entire ground described. Give to their act a different exposition, and the market house is stripped of its most valuable, nay, inseparable appendages; it no longer exists as of public utility. Houses might be built in immediate contact with its sides; and wagons, carts, and such other vehicles as usually attend a public market, are wholly excluded, 

 [*370]  there being no place appropriated for their reception. Whoever saw, or heard of a market house without public avenues, or highways on its sides, for the [**21]  accommodation of the public? That it was intended for the market house to cover the entire ground by being erected of one hundred and fifty feet in width, is an idea too absurd to be indulged for a moment; indeed, it is distinctly repudiated by the conclusion of the foregoing section of the law, which provides, that the market house shall be built of such plan and dimensions as the commissioners shall approve. If the legislature meant to convey nothing more than the ground actually covered by the market house, what motive could have prompted them to transfer the privilege, not only of extending to the channel the lot occupied by the market house, but also the water front of the lots on the east and west sides of it? Our construction of this clause of the act of assembly, in relation to the limits of the ground which was granted, is not only consistent with the spirit and objects of the law, but is in accordance with its terms and expressions. It describes the ground suitable for the purpose, authorizes the erection of the market house thereon, and then grants the market house, with the ground on which it is built. On what ground was it built? On that ground which was described and [**22]  appropriated for that purpose. The entire parcel of ground clearly passed to the town commissioners.
It was contended in the argument that in the grant of the "privilege of extending the same to the channel," the relative term "same," there used, referred to the market house, and not to the ground whereon it was to be erected. If such was the design of the general assembly, it is difficult to conceive by what motives they were actuated. What? extend a market house fourteen hundred feet through the marsh, and into the water, to the very channel of the basin, and leave in contact with each side of it, such a marsh and depth of water as would preclude all possibility of approaching it, but through its northern extremity. It has been common to grant the privilege of extending lots of ground into 

 [*371]  the basin; but it is perhaps the first time that it was ever alleged, that an authority was granted to extend houses into navigable water. There is, however, nothing to warrant this construction. According to the obvious meaning and grammatical interpretation of the sentence, the relative, "same," agrees with its more immediate antecedent "ground;" and the ground referred to, is the [**23]  market house lot of one hundred and fifty feet wide. That the "privilege" thus conferred, with the ground which might be reclaimed under it, were vested in the town commissioners in fee simple, there is no room for the suggestion of a doubt. But it is insisted on in the bills of complaint, and in the argument at bar, that its use and enjoyment by the city, is exclusively limited to the erection of a market house thereon. If such was the intention of the legislature, it is impossible to collect it from their act. They have used no words of limitation, or restriction, as to the purposes to which this extension of ground was to be appropriated, nor can any be inferred from the nature of the grant, its subject matter, nor any of the circumstances attending it. On the contrary, they declared that this "privilege," shall vest in the commissioners of Baltimore town and their successors forever, "to, and for the use and benefit of the said town." Thus leaving the mode of its enjoyment, the purposes to which it was to be applied, to the sound discretion of those, who were created the trustees, or guardians of the interests of the town. These commissioners acting in its behalf, and for its [**24]  benefit, might have improved this "privilege" themselves, by filling up from time to time, or at any time, this immense space, or any part of it; or employed, or permitted, upon such terms and conditions as to them seemed reasonable and just, other persons to do so. Under this power, and in virtue of their permission, the improvement of Dugan and McElderry has been effected. Their rights then, over the wharves and ground, extended in front of the market house lot, depend altogether upon the construction that may be given to the permission they 

 [*372]  received from, or in other words, the contract they made with the town commissioners. Upon this subject, as far as Dugan and McElderry's claim to wharfage is concerned, we think the permission or contract under which they acted too explicit, and unambiguous, to permit us to entertain even a momentary doubt. In the wharves and canal to be constructed, the town commissioners neither gave, nor intended to give to Dugan and McElderry, any right of domain, or of property. Their attempt to charge wharfage, therefore, has no colorable pretext to support it, and is a violation of the spirit and meaning of that condition [**25]  imposed by the town commissioners, which declares, "that the said canal, wharves, and streets on each side of said canal, be a common highway, and free for the public use." A distinct annunciation to Dugan and McElderry, that they had no right therein, but in common with the rest of the community. Great stress appears to be placed on the fact, that the canal and wharves were made by Dugan and McElderry at an immense expenditure of money, and that the health, and commerce of the city, have been greatly promoted by their "improvement," and we are left to infer, that all this has been done with the most patriotic public spirit, and disinterested motives; with a single eye to the public benefit;--that this effort by the corporate authorities of the city of Baltimore to deprive them of this wharfage, their only return for this enormous expense of money and labor, is an act of ingratitude, persecution, oppression, and injustice, which should excite the indignation and sympathies of this court.
Are these grievances complained of, well founded? Were these the considerations that induced the complainants to engage in their laborious and expensive undertaking? Is this wharfage [**26]  the only remuneration they receive for their inordinate sacrifices? A slight comparison of their condition before, and after the completion of their improvement, will rectify any misapprehension on this subject, that might otherwise arise.

 [*373]  In 1794, Dugan and McElderry were the owners of two lots fronting on the water, and adjoining the market house, the one being on the west side of it, the other on the east. Whether the front of each of those lots was 30, 40, 50, or 100 feet on Water street is not shown by the record. Suppose Dugan and McElderry had extended their lots into the basin to the channel, or port wardens' line, without any additional extension under the town commissioners' privilege; how many feet of water front, or wharf property would they have been entitled to? As many feet, and no more, as their lots fronted on Water street. What length of wharf would they have been compelled to make to attain that object? Precisely the same length of wharf, except eight feet on Pratt street, which they have now made; the wharves on the sides of their lots, binding on the market house lot "privilege" being indispensable to prevent the earth,  [**27]  with which their lots was filled, from washing away and filling up, and destroying the navigation of the basin. Their net gain of water front, or wharf lots under the permission of the town commissioners is two thousand feet, perhaps ten times as much navigable front on the water, as they could legally have acquired, by availing themselves only of their own water rights. By this operation they have rendered their property, in all probability, at least four or five times as valuable as it would otherwise have been. And what compensation do the Mayor and City Council of Baltimore, (who under its charter are clothed with all the powers of the town commissioners,) receive as territorial proprietors of their "privilege;" for its enjoyment by Dugan and McElderry? According to the pretensions of the latter, not one farthing. And furthermore, agreeably to that part of the chancellor's decree, relative to the repairing of these wharves, (which is unquestionably correct,) the corporation are bound to bear the whole burden of repairs. This to be sure, would be a left handed, unilateral bargain with which it would be difficult to find a parallel. Seeing no equity in the claims of the [**28]  complainants, 

 [*374]  Dugan and McElderry, their several bills of complaint against the Mayor and City Council of Baltimore ought to be dismissed with costs, as concerns Dugan and McElderry, both in this court and in the Court of Chancery; but without costs so far as the widow and heirs of McElderry are concerned; and the injunction issued in those cases is dissolved.
Having disposed of the cases of Dugan and McElderry against the Mayor and City Council of Baltimore; our next duty is to examine, upon the bill filed by the latter against Cumberland Dugan, what right the corporation of Baltimore have to collect the wharfage to which, by their bill, they have made claim. To make this examination, we must settle the true construction of the permission, by which the commissioners of Baltimore town authorized the "improvement" made by Dugan and McElderry; according to which we think, that no right of property or domain passed to them, in the canal, wharves, and streets constructed under the commissioners' "privilege." But that the same, vested in the said commissioners, in the same manner, that they would have done, had the "improvement"  [**29]  been made by themselves; except so far, as their powers were abridged, by that condition attached to their permission, by which it was declared that "the said canal, wharves and streets, on each side of the said canal, be a common highway, and free for the public use, and subject to such regulations as the commissioners and their successors shall from time to time establish." If to ascertain the meaning of this stipulation, we could look to the acts of the parties from the time when their stipulation could have been brought into operation, until the present moment, it is most manifest, that neither party supposed the right of wharfage was extinguished. Both parties admitted the existence of the right; the only controversy was, by whom it should be exercised. Over the wharfage collected at private wharves, or wharves other than those owned by the town or city of Baltimore, or made at the ends or sides of public streets, 

 [*375]  lanes and alleys, the town or city officers have no power or control. Its imposition and collection, is the exclusive privilege of the wharf owners; with it, the officers of the town or city have no concern. It is otherwise with wharfage collected at [**30]  wharves owned by the town or city, or at the ends or sides of the streets, lanes or alleys: all these are called public wharves; are common highways, free for the use of the public; but at which tolls were collected by the town, now city, officers.
In declaring the wharves on Market space, common highways, and free for the public use, the commissioners never designed to surrender their proprietary right; further than that the wharves should not be held as private wharves, under the absolute dominion of their owners; to which no vessel can approach, or make fast without the consent of the proprietors: but that they should be "free," that is, (according to its obvious as well as literal sense,) open for the public use. They meant nothing more, than that the use of those wharves should be the common privilege of all; but never intended to relinquish the natural, inherent right, incident to their title of collecting a reasonable and customary wharfage. They do not agree that it shall be a highway for the use of the public, free of wharfage, or expense; but simply, that it should be a common highway, "free," or (to use another word of the same import,) open for the public use; [**31]  leaving to the proprietors of the soil, their natural, inherent right of collecting a wharfage. All our turnpike roads are common highways, and free for the public use, but not free from the collection of tolls. A wharf may be free from wharfage, and yet not a highway, or free for the public use; or it may be a highway, and free for the public use, and yet not free from wharfage.
From the nature of the permission, and circumstances attending it, granted to Dugan and McElderry by the town commissioners, ought we to infer a surrender of their rights of domain, beyond the terms of their stipulations? Dugan and McElderry acquired, what was clearly the object of 

 [*376]  their application, an immense additional water front, and highways, or streets in front of their numerous warehouses, which they had in contemplation; and which they have told us, they subsequently built. It was no part of their application, that "the canal, wharf, and streets when made should be free for the public use." The only requisition, in their application was, that they should "be made public for the use of the inhabitants, under the laws and regulations of the town commissioners." Is it [**32]  then rational to presume, that when it was not even asked for, these commissioners by using the word "free" where they have used it, designed to relinquish an inherent, and unquestionable right, of great value to the town, and their only direct advantage, or income resulting from the "improvement," whilst at the same time, they imposed upon Baltimore the new burden of keeping these wharves and streets in repair, and of furnishing at its own expense, officers to enforce such regulations as the said canal, wharf, and streets might render it necessary for them to establish? Strip them of this claim to wharfage, the essence of their right of domain, and there is no more reason, or justice in holding them bound to repair these wharves, and incur the expense of these regulations; than there would be in requiring them to repair and regulate every private wharf in the city.
Was this asserted exemption from wharfage, deemed essential or appurtenant to the warehouses; the erection of which was the great object of the improvement? The acts of Dugan demonstrate the contrary. He always denied its enjoyment to the occupants of the warehouses, and exercised himself the right of collection, [**33]  as separate from, and independent of such occupation.
Can any thing be more reasonable and just, than this claim to wharfage? The city of Baltimore as proprietor is bound to cleanse the canal, and to regulate and repair those wharves and streets. The natural fund to defray the necessary expenditure of which, is what? The wharfage; an income derived from those who enjoy the benefit of this 

 [*377]  expenditure. We cannot then by a technical strained construction of the word "free," which those who used it could not have intended it to bear, invert the natural order and fitness of things, and deprive the city of Baltimore as a freeholder, of its inherent rights of emolument, and at the same time impose on it all the correlative burdens.
In doing so we think the chancellor erred, and therefore reverse his decree, with costs to the appellants in this court, and in the Court of Chancery. the injunction issued against Cumberland Dugan should have been made perpetual, and a decree to account, passed in the usual form; for which purpose, and that the chancellor may pass such orders and decrees in the case, as are requisite to give full and final relief to the complainants,  [**34]  according to their equities, this cause is remanded to the Chancery Court.
DECREE REVERSED, AND CASE REMANDED TO THE COURT OF CHANCERY FOR FURTHER PROCEEDINGS.  

2 of 43 DOCUMENTS 

JAMES FLACK vs. CHARLES GREEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 474; 1831 Md. LEXIS 35 

December, 1831, Decided 

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

Assumpsit by the appellant, as endorsee, against the appellee, as the endorser of a promissory note for $ 482 80, dated Washington, March 3d 1825, payable at eleven months, of which one John Pic, of that place, was the maker. The general issue was pleaded.

1. At the trial the plaintiff proved the endorsement of Charles Green, who resided in the city of Baltimore at the time the note became due; and also proved the signature of said Pic, the maker; and then read in evidence the testimony of John G. McDonald, notary public, residing in the city of Washington, taken under a commission issued for that purpose, viz: "I find by reference to my notarial book, that a similar note to that now exhibited to me, marked A, was delivered to me by the President and Directors of the Bank of Washington, to be presented for payment, to the drawer thereof, and that after the hour of three o'clock in the afternoon, on the 6th day of February, 1826, I presented the said note for payment, at the store of John Pic, in Washington city, and demanded payment of it, and was answered by a lady officiating therein, and believed by me to be the wife of the said John [**2]  Pic, that Mr. Pic was not within, and that it could not be paid. I then prepared a notice of the non-payment, addressed it to Charles Green, and a similar notice addressed to Henry Payson & Co. the second endorsers on the note; which notices I enclosed and put into the post office in the city of Washington, on the evening of the same day, addressed to Henry Payson & Co. Baltimore, Maryland; the next morning I returned the note to the President and Directors of the Bank of Washington, accompanied with the protest made by me." And for the purpose of shewing that the notice of non-payment addressed to Charles Green, the defendant, and mailed at Washington, on the 6th day of February, 1826, under cover to Henry Payson & Co. the next succeeding endorsers to the said defendant, as set forth in the evidence of John G. McDonald, was transmitted to the defendant in due time, the plaintiff offered to prove by Henry P. Sumner, a member of the mercantile house of Henry Payson & Co. that it was the invariable and uniform practice of that house, to forward such notices immediately upon receipt of them, and that he had no doubt, from the course of their business, that they had forwarded this particular [**3]  notice to Charles Green, but that he had no recollection upon the subject of forwarding this particular notice to the defendant. That from the general course of their business, and from the particular custom of their counting house, in respect to such notices, he believed that the notice in question had been duly transmitted to the defendant. And the plaintiff further offered similar evidence, by all the clerks of the house of H. P. & Co. To this evidence the defendant objected, as being incompetent, and inadmissible to prove that notice of the non-payment of the said note was received by, or given to, the defendant: which objection the court (ARCHER, Ch. J.) sustained, and refused to permit the said evidence to be given to the jury. The plaintiff excepted.

2. In addition to the testimony given in the preceding bill of exceptions, and which is hereby made a part of this exception, the plaintiff still further to support the issue on his part, proved by Henry W. Kiser, a legal and competent witness, that the following notice--

Mr. Charles Green,--"Baltimore, 9th February, 1826. Dear Sir: The note of John Pic, for $ 482 80, of your endorsement, has come to hand protested. I [**4]  now feel you, as the endorser, bound for the payment of the note, and I shall hold you as such, and shall expect the payment of the same in the course of to-day or to-morrow. James Flack." is in his hand writing, and that at the time it bears date, he was a clerk in the employ of the plaintiff, and that by the direction of the plaintiff he delivered a notice, of which the above is a true copy, on the 9th of February, 1826, at the store of Coley and Green, of which firm the said defendant was a partner. And the plaintiff then proved by Henry P. Sumner, that soon after Messrs. Flack & Co., of which firm the plaintiff was a partner, became known to Henry Payson & Co. Mr. Samuel B. Coley, the partner of the plaintiff, stated, that from the nature of their business as brewers, or mixers of liquors, and manufacturers of cordials, that they would require foreign liquors and wines, to use in their establishment, and that he stated at the same time, that they were strangers in Baltimore, and did not wish to keep a bank account, and would therefore wish Henry Payson & Co. to collect their bills receivable, and that in purchasing such articles as suited their business, they would buy from Henry [**5]  Payson & Co. when they could get them upon as favorable terms as from other persons; that after such understanding, the house of James Flack & Co. dealt largely with Henry Payson & Co., purchasing various articles of merchandise, on credit, and placing with them various promissory notes, from time to time, as they received them in the course of their business; that Henry Payson & Co. occasionally advanced sums of money to said Flack & Co. as they required them, which they so advanced, as well for their personal confidence in Flack & Co. as in the faith of the said notes, which they had deposited with them in the course of their dealings as aforesaid. And also proved by the same witness, that the amount of notes credited Flack & Co. in their account current with the house of Payson & Co., included the note on which the present suit is instituted; and that the charge therein afterwards stated of the said note, to the debit of James Flack, was in consequence of the said note having been returned protested for non-payment, by the drawer, who resided in the city of Washington, and that the dealings of the said house of Henry Payson & Co. with James Flack, continued after the dissolution [**6]  of the partnership of James Flack & Co., without any new understanding between them as regards advances, and that such advances were made after such dissolution, in the same manner as before; that they kept a mutual interest account with each other, both before and after the dissolution aforesaid, and that from the nature and course of their dealings with the said house of Flack & Co. and with the said plaintiff, after the dissolution aforesaid, they considered themselves as the bankers of the said Flack & Co. and of the plaintiff, after the dissolution aforesaid; and the said witness being asked by the counsel for the defendant, to give a definition of the word "banker," as he applied it to this particular case, stated, that he meant thereby to express "a sort of combined agency in the purchase of goods, and collection of notes, and making advances of money." It was proved on the part of the defendant, by the cross examination of the said witness, that Henry Payson & Co. when they received the notes for collection from Flack & Co., placed them in their books as bills receivable, and when they were paid, placed the amount thereof to the credit of Flack & Co.; that Henry Payson & Co.  [**7]  did not consider themselves in any way bound by the receipt of such notes, unless the money due on them was paid at their maturity; that all the expenses of collecting said notes were paid by Flack & Co.; that no advance was made by Henry Payson & Co. on the note on which the suit was brought, and that if the same had been paid at maturity, and Flack had called for the money paid thereon, it would have been given to him as his own money; and that if the note had not been paid, and Flack had asked for the advance of that amount of money, it would have been given to him on his personal credit; that Henry Payson & Co. were not in the habit of receiving notes for collection from persons residing in the city of Baltimore, and that witness had no knowledge that any other note was placed in the hands of Henry Payson & Co. for collection, except those received from Flack & Co., and that they were not the bankers of any other house in the like manner in which they were the bankers of Flack & Co.; and further proved, that the store of Coley and Green was about five hundred yards distant from the store of Flack; and further proved, that the said note was not endorsed by James Flack, the plaintiff,  [**8]  at the time it fell due; and that the mail from Washington for Baltimore, left the former place early in the morning, every day for the latter, where it arrived at an early hour in the same afternoon: whereupon the defendant prayed the court to instruct the jury, that the plaintiff is not entitled to recover, and assigned the following reasons: 1. That the plaintiff had not used due and reasonable diligence in the delivery of notice to the defendant, of the dishonor of the note on which this suit was brought. 2. That such notice being delivered on the 9th of February, 1827, was one day too late; and 3. That there was no evidence of notice, to charge the defendant as endorser of the note on which this suit was brought; which instruction the court (ARCHER, Ch. J.) accordingly gave.

The plaintiff excepted, and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The promissory note of I, endorsed by G and P, fell due at Washington, on the 6th, where payment was then demanded, and refused. The notices to the endorsers were enclosed in a letter addressed to P, at Baltimore, and mailed at Washington on the evening of the 6th. The mail left Washington every morning, and arrived at Baltimore at an early hour the same afternoon. Both the endorsers lived in Baltimore, and notice was delivered to G, the first endorser, on the 9th. HELD, that G was discharged from his liability as endorser, the notice being one day too late; in legal presumption the notice reached P on the 7th.

After evidence had been given, that a letter containing two notices for endorsers upon a dishonored note, had been mailed under cover to one of them, at W, directed to B, where they both resided, it was proposed to prove, that it was the invariable and uniform practice of the endorser's house and counting room, to which the notices had been directed, to forward such notices immediately upon the receipt of them, and the witnesses who were employed in such counting room, had no doubt, and believed, from the course of their business, that they had forwarded one of the notices to the other endorser. HELD, that the proposed evidence was incompetent, to prove the delivery of a notice in due time to the other endorser.

No person can become a party to a bill, unless his name appears on some part of it.

One whose name is not upon a bill, though interested in it, is not entitled to the benefit of the rule, that each party is entitled to an entire day, for the purpose of giving notice to the person preceding him, on a dishonored note or bill.  

COUNSEL:
Johnson, for the appellant, cited Miller vs. Hackly, 5 Johns. 375. Pritt vs. Fairclough, et al. 3 Camp. 305. Hagedorn vs. Reed, Ib. 379. Scott vs. Lifford, 1 Ib. 246, 249. Chitty on Bills, 213, 225, 318, 319. Longdale vs. Trimmer, 15 East. 291. Mead and Rogers vs. Engs, 5 Cow. 303.  [**9]  3 Kent, 73.

Gill, for the appellee, cited, The Cumberland Bank vs. McKinley, 6 Harr. and Johns. 527, 3 Kent, 46, 75, Chitty on Bills, 22, 23, 316. Bank of Columbia vs. Magruder, 6 Harr. and Johns. 181. Bank of Columbia vs. Fitzhugh, 1 Harr. and Gill, 248. Vincent vs. Harlock, et al. 1 Camp. 442, 443, note 1. Smith vs. Mullett, 2 Camp. 208. Darbishire vs. Parker, 6 East. 5, 6, 7. U. States vs. Barker, 12 Wheat. 560. Morgan vs. Woodworth, 3 Johns. Cas. 89.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*479]  STEPHEN, J., delivered the opinion of the court.
This suit was instituted in Baltimore County Court, by the appellant, against the appellee, upon a promissory note drawn by a certain John Pic, in favor of the appellee, by whom it was endorsed to the appellant. The general issue was pleaded, and on the trial of the cause, the plaintiff proved the endorsement of the payee on the note, who resided 

 [*480]  in the city of Baltimore at the time the note became due, and also the hand writing of the maker. John Pic, the maker of the note, residing in the city of Washington, the note was transmitted to [**10]  the bank of Washington for collection, by Henry Payson & Co. of Baltimore, as the agents of James Flack, by whom it had been placed in their hands, for a similar purpose. When the note became due, it was placed by the bank, in the hands of a notary, who demanded payment thereof, which being refused, he prepared a notice thereof, addressed to Charles Green, and a similar notice addressed to Henry Payson & Co., who were endorsers on the said note; which notices the notary endorsed, and put in the post office, in the city of Washington, on the evening of the same day, addressed to Henry Payson & Co. at Baltimore. In this case, two bills of exceptions were taken in the court below. In the first exception, for the purpose of showing that the notice of non-payment, addressed to Charles Green, the defendant, and put into the post office at Washington, on the 6th February, 1826, the day the note became due, under cover to Henry Payson & Co. the next endorsers, was transmitted to the defendant in due time; the plaintiff offered to prove by sundry witnesses, that it was the invariable, and uniform practice of that house, to forward such notices [**11]  immediately upon receipt of them, and that they had no doubt from the course of their business, that they had forwarded this particular notice to Charles Green, the defendant, but that they had no recollection upon the subject of forwarding this particular notice to the defendant. That from the general course of their business, and from the particular custom of their counting house, in respect to such notices, they believed the notice in question had been duly transmitted to the defendant. To this evidence the defendant objected, as being incompetent, and inadmissible to prove that notice of the non-payment of the said note was received by, or given to him; which objection the court sustained, and refused to permit the said evidence to be given to the jury. 

 [*481]  In this opinion of the court we do not think there is any error.
In the opinion given by the court in the second exception, we also entirely concur. The note became due on the 6th February, 1826, and the proof offered in this exception established the fact, that Green, the defendant, never received notice, until the 9th of that month, which was unquestionably one day too late. The name of Flack was not endorsed [**12]  upon the bill; and in Chitty on Bills, 23, the principle is stated to be a general one, "that no person can become a party to a bill, unless his name appears on some part of it." For this rule he refers to the opinion of Buller, in the case of Fenn vs. Harrison, in 3 Term. R. 759, where he says: "In the case of a bill of exchange, we know precisely what remedy the holder has, if the bill be not paid. His security appears wholly on the face of the bill itself. The acceptor, the drawer, and the endorsers are all liable in their turns, but they are only liable, because they have written their names on the bill." The law seems to be well settled, that where all the parties reside in the same place, each party has a day to give notice. In 1 Wheat. Selw. 295, the law is laid down to be, "where there are several endorsements, and the holder gives notice of dishonor to his endorser, neither that endorser, nor any prior endorser is bound to transmit the notice of dishonor on the very day on which he receives it. Each successive endorser will be considered as having used due diligence, if he transmit the notice of dishonor, on the day after it is received, in a case [**13]  where all the parties live in the same place; but if he neglect giving the notice on that day, and the day after, it will be too late." In Jameson vs. Swinton, 2 Camp. N. P. C. 373, the same rule was recognized by LAWRENCE, J. viz: "that each party to the bill has a day to give notice." The name of Flack not being upon the bill in this case, he was not entitled to the benefit of the principle, that each party is entitled to an entire day for the purpose of giving notice. 

 [*482]  "The putting of a letter into the post office, giving the notice, is sufficient, without proof of its having been actually received, and if the party to be affected with the notice, reside in a different place from the holder, the notice may be sent through the post office, to the post office nearest the party entitled to such notice;" 1 Wheat. 298. Bank of Columbia vs. Magruder, 6 H. & J. 172. According to the admission of the parties, it appears, that the mail left Washington city early in the morning, and arrived in Baltimore, at an early hour the same afternoon. In legal presumption, the notice must have reached Payson & Co. on the 7th February,  [**14]  who were legally bound to deliver notice to Green on the following day. This not having been done, we are of opinion, that the court below were right, in the opinion expressed by them in the second exception, and affirm their judgment.
JUDGMENT AFFIRMED.  

3 of 43 DOCUMENTS 

HICKLEY, TRUSTEE OF THOMAS CLAGETT vs. THE PRESIDENT AND DIRECTORS OF THE FARMERS AND MERCHANTS' BANK OF BALTIMORE, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 377; 1833 Md. LEXIS 13 

June, 1833, Decided 

PRIOR HISTORY:
 [**1]   The present bill was filed by the appellant, Robert Hickley, permanent trustee of Thomas J. Clagett, on the 1st of October, 1829. It alleged, that Thomas J. Clagett on the 26th of May, 1829, applied to the commissioners of insolvent debtors for the city and county of Baltimore, for the benefit of the insolvent laws, and that the complainant in the due course of said application, and proceedings thereunder, was appointed his permanent trustee, and that he has given bond with approved security as such. That the debts due from the insolvent at the time of his application remain unsatisfied, and that his effects in the hands of his trustee are wholly insufficient for that purpose. That said insolvent being about the 1st of May, 1829, indebted to the Farmers and Merchants' Bank of Baltimore, in about the sum of $ 1600, and being then, as was known to said Bank, in fact insolvent, was induced by it to confess a judgment for the amount of the said debt, for the purpose of giving to said Bank an undue and improper preference over the other creditors. That at the time this judgment was confessed, the said Clagett had it in contemplation to apply for the benefit of the insolvent laws; and that [**2]  it was a part of the arrangement between the said Clagett and the Bank, that an execution should immediately issue on said judgment, which did in fact issue, and a great part of the personal property of the insolvent was taken under it, and sold, and the proceeds applied to the payment of the aforesaid debt. The prayer of the bill is, that the Bank account and pay over to the complainant, the value of said property so seized, and sold under the aforesaid execution, and for general relief.

The answers of the Bank and Clagett admit the judgment, the execution, and sale of the property of the latter, and that the proceeds thereof was paid over by the sheriff, towards the satisfaction of the debt due the Bank, as charged in the bill. Clagett, in his answer, denied that he contemplated, at the time the judgment was confessed, being or becoming an insolvent debtor, or giving the Bank an undue and improper preference; and the Bank denied that they had any understanding with that view with Clagett; their object being, as they alleged, merely to secure their own claim, without any reference to the rights of others, and without knowing that Clagett contemplated applying for the benefit [**3]  of the insolvent laws. The application by Clagett, for the benefit of the insolvent laws, at the time stated in the bill, and the appointment of complainant as his trustee, was also admitted.

A commission issued to take evidence, under which Clagett, the insolvent, was examined under an order for that purpose, passed by the chancellor, upon the application of the complainant. He stated among other things, that at the time he agreed to confess the judgment to the Bank, he was in fact insolvent, but that he hoped at that time to be able to settle with his creditors, and that he had not then the slightest idea of taking the benefit of the insolvent laws. That he contemplated no such alternative, not having thought on the subject at the time referred to.

BLAND, Chancellor, at March term, 1831, dismissed the complainant's bill with costs, who thereupon, brought the case by appeal to this court.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

By the common law, and apart from the provisions of the insolvent laws of this State, a debtor may secure one creditor to the exclusion of others, either by payment, or a bona fide transfer of his property.

Under the settled construction of the acts of 1812, ch. 77, sec. 1, and 1816, ch. 221, sec. 6, the words, "with a view or under an expectation of being or becoming an insolvent debtor," used in those acts, are held to mean, with a view or under an expectation of taking the benefit of the insolvent law.

Where the permanent trustee of an insolvent debtor proceeded in equity to set aside the judgment confessed by the insolvent prior to his application for a release under the insolvent laws, upon the allegation that the judgment was confessed under the expectation of becoming an insolvent debtor, and enabled the plaintiff, creditor, to pay himself by his levy upon the defendant's property in preference to other creditors, and in support of his case examined the insolvent as his witness, who deposed, that he was in fact insolvent when he confessed the judgment, "but that he hoped at that time to be able to settle with his creditors; that he had not then the slightest idea of taking the benefit of the insolvent laws, and contemplated no such alternative, not having thought on the subject at the time referred to;" there being no evidence in the record to control the insolvent's proof, or showing the existence, at the time of the confession, of any such expectation: HELD, that the transaction must be left to its operation at common law, and being bona fide, and for a sufficient consideration must be sustained.

By the act of 1827, ch. 70, sec. 7, confessed judgments were declared within the operation of the insolvent laws, except in the city and county of Baltimore; and by the acts of 1830, ch. 65, and 1831, ch. 316, sec. 5, the like principle applies to confessed judgments in the city and county of Baltimore; prior to these acts judgments had not been considered preferences within the meaning of the insolvent laws.  

COUNSEL:
Mayer, for the appellant.

The confession of the judgment by agreement, and the seizure of Clagett's effects under it, constitute an undue preference from him to the Bank; and under the provisions of the insolvent laws; and independent too, of any [**4]  provision of those acts against preferences to creditors, the proceeding in question, on the part of the Bank, and Clagett is, as to the appellant, as permanent trustee, a nullity, and the Bank is answerable to the trustee for the full value of the property thus unduly appropriated. He referred to the acts of 1807, ch. 55, sec. 2, 1812, ch. 77, sec. 1, 1816, ch. 221, sec. 6, 1805, ch. 110. The Wm. King, 2 Wheat. 141. Sheps. Touch. 145. 1 Bac. Abr. 429. 3 Com. Dig. 110. 3 Bac. Abr. 297, 298, 321. Rob. on Frauds, 489. Frasier, Jr. vs. Frasier, 9 Johns. Rep. 80. Wilkinson vs. Wilkinson, 3 Swanst. 529. Benson vs. Le Roy, 4 Johns. Ch. Rep. 651. Livingston vs. Hubb, et. al. 2 Johns. Ch. Rep. 512.

Dulany and G. H. Brice, were stopped by the court.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*380]  BUCHANAN, Ch. J., delivered the opinion of the court.
By the common law, and apart from the provisions of the insolvent laws of this State, (the bankrupt laws of England not being in force here) a debtor may secure one creditor to the exclusion of others, either by payment or a bona fide transfer of his property. The 9th section [**5]  of the insolvent act of 1805, ch. 110, denies the benefit of that act to any debtor found guilty of having given to any creditor or security, an "undue and improper preference," leaving doubtful what constituted an undue and improper preference. 

 [*381]  And to remove that doubt, the act of 1807, sec. 2, provides that any deed, &c. made by any person, to any creditor or security, with a view, or under an expectation of being, or becoming an insolvent debtor, shall be taken to be an undue and improper preference to such creditor or security, within the meaning of the original act of 1805. Neither the original act of 1805, nor the supplement of 1807, renders void or inoperative a deed, &c. given bona fide by a debtor, to secure a favored creditor or security, but they rather virtually recognize the validity of such a deed. The act of 1807, only declaring what shall be deemed an undue and improper preference, and the act of 1805, doing no more than by way of punishment, denying to a debtor giving such preference, the benefit of its provisions, without impairing the rights of the preferred creditor under such deed, and leaving it to its operation at common [**6]  law.
But the acts of 1812, ch. 77, sec. 1, and 1816, ch. 221, sec. 6, the latter relating to the city and county of Baltimore, provide, that any deed, &c. made to a creditor, or security, by any person, with a view or under an expectation of being, or becoming an insolvent debtor, and with intent thereby, to give an undue and improper preference to such creditor or security, shall be void, and that the title to the property shall vest in the trustee of such insolvent debtor. Thus for the first time making void such a deed of preference, given with a view, or under an expectation of being or becoming an insolvent debtor; which would have been supererogation, if such deeds had been considered void before. Under the settled construction of those acts, the words, "with a view, or under an expectation of being or becoming an insolvent debtor," are held to mean, with a view, and under the expectation of taking the benefit of the insolvent laws; and if the judgment confessed by Thomas J. Clagett, who was a resident of the city of Baltimore, could be considered as within the intent and meaning of those acts, and had been given with a view, or under an expectation  [**7]   

 [*382]  of taking the benefit of the insolvent laws, and with an intent thereby to give an undue and improper preference to the Bank, it would have been null and void, and the property taken under the execution sued out upon it, would have vested in his trustee.
But the appellant thought proper to make Thomas J. Clagett a witness, and to examine him as such, and he has positively, and unequivocally sworn, that he did not confess the judgment with a view, or under an expectation, or intention to take the benefit of the insolvent laws; and there is no evidence in the record, to control his showing the existence at the time, of any such view or expectation. It is therefore a transaction wanting the ingredients of such an undue and improper preference, as is declared by the insolvent laws to be void; and is consequently left to its operation at common law, by which, being bona fide, and for a sufficient consideration, it is sustained.
The act of 1827, ch. 70, sec. 7, provides that the voluntary confession of a judgment in favor of a creditor, or security by any person, with a view, or under an expectation of being or becoming an insolvent debtor, shall be an undue [**8]  and improper preference, within the intent and meaning of the act of 1805; with a proviso, in the 9th section, that it shall not extend to the city and county of Baltimore. Thus showing, that before that time, such judgments had not been considered as being within the meaning of the act of 1805; and by the proviso, giving validity and effect to such judgments in the city and county of Baltimore.
But by the act of 1830, ch. 65, a judgment so confessed in the city or county of Baltimore, is declared to be an undue influence, an improper preference, and null and void. And by the act of 1831, ch. 316, sec. 5, the provisions of the 7th section of the act of 1827, ch. 70, are extended to the city and county of Baltimore,--so that the judgment in this case, which was confessed by Thomas J. Clagett, in the city of Baltimore, on the first day of May, in the year 1829, before the passage of the acts of 1831, is protected 

 [*383]  by the proviso in the 9th section of the act of 1827, and would not be void under the provisions of the insolvent laws, even if it had been confessed with a view, or under an expectation of being or becoming an insolvent debtor. [**9]  
DECREE AFFIRMED WITH COSTS.  

4 of 43 DOCUMENTS 

JAMES BOSLEY vs. The CHESAPEAKE INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 450; 1831 Md. LEXIS 34 

December, 1831, Decided 

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

This was an action of Covenant, brought upon a policy of insurance effected by the appellant, Bosley, with the appellees, The Chesapeake Insurance Company. The original writ was sued out upon the 12th of July, 1823. The plaintiffs declaration contained three counts. The first count alleged that on the 12th day of December, 1822, at Baltimore, &c. by a certain policy of insurance, then and there made and sealed with the seal of the Chesapeake Insurance Company aforesaid, which the said Bosley here brings into court, &c. the Chesapeake Insurance Company did insure the said James Bosley, lost or not lost, at and from a port or ports in Europe to Baltimore, $ 15,000, upon the body of the good ship called the General Smith, whereof was the master for that voyage,     Robinson; beginning the adventure upon the said vessel, at and from the ports aforesaid, and so should continue and endure until the said vessel should be arrived at Baltimore aforesaid, and there moored twenty-four hours in safety. And it was by said policy declared and agreed, that it should and might be lawful for the said vessel, in her voyage, to proceed and sail to, touch and [**2]  stay at any ports or places, if thereunto obliged by stress of weather, or other unavoidable accident, without prejudice to the said insurance; the said vessel, her tackle and appurtenances, for so much as concerned said insurance, by agreement between the assured and assurers in the said policy, was valued at the sum insured. The perils and adventures which they, the assurers, took upon themselves, and were contented to bear in the said voyage, were of the seas, men of war, fire, &c. and all other such perils, losses and misfortunes as had or should come to the hurt, detriment or damage of the said vessel, or any part thereof, for which assurances are legally accountable; and in case of any loss or damage, it should be lawful for the assured, their factors, servants and assigns, to sue, labor and travel for, in and about the defence, safeguard and recovering of the said vessel, or any part thereof, without prejudice to the said assurance: to the charges whereof they, the assurers, should contribute, according to the amount of the sum thereby assured. And so they, the assurers, were content, and did thereby bind the Chesapeake Insurance Company to the assured, their executors, administrators [**3]  and assigns, for the true performance of the premises, confessing themselves paid the consideration for the assurance by the assured, at and after the rate of two and a half per cent.; to return one per cent. if from one port: in case of loss, the same was to be paid in ninety days after proof and adjustment thereof; the amount of the note for premium, if unpaid, being first deducted, provided such loss should amount to five per cent., under which no loss or damage was to be paid on ship, unless general, &c. And the said James in fact says, that the said ship or vessel then and there being the property of the said James, and so ever after continuing to be, until and up to, and at the time of the loss hereinafter mentioned, and said James being then and continually as aforesaid interested in said ship, to the value of all sums insured thereon, was heretofore, to wit, on the 3d day of December, 1822, at a port in Europe, to wit, at the port of Rotterdam, to wit, at, &c. and then and there being the property as aforesaid of the said James Bosley, and being so the property of the said Bosley at the time of making said insurance, and said policy of insurance did, to wit, on the said 3d [**4]  day of December, 1822, depart and set sail from a port in Europe as aforesaid, to wit, from the port of Rotterdam, on her said voyage in said policy mentioned, for and towards Baltimore aforesaid; and that afterwards, and whilst the said vessel was proceeding on said voyage, to wit, on the 4th day of February, 1823, to wit, in Helvoet roads, to wit, at, &c. and before the completion of the voyage aforesaid, the said vessel was by the force and violence of the winds and waves, and by the perils and dangers of the seas, forced, driven and cast upon and against certain shoals and banks, and thereby, and by drift of ice, then and there, became strained, disjointed, broke and damaged, insomuch that the said vessel thereby then and there was wholly lost to the said James, and a large sum of money, to wit, the sum of $ 2,000, was then and there expended by the said James, in and about the safeguard, recovery, defence and preservation, and toward the reparation of said vessel; which said sums of money so paid, laid out and expended, and the said sum of $ 15,000, the defendants became and were liable to pay the said James according to the tenor and effect of the said policy of insurance; of [**5]  all which premises the said Chesapeake Insurance Company, to wit, on the 4th day of February, 1823, had notice, to wit, at, &c.

2d Count. After referring to the same policy, it averred,--And the said James does in fact say, that the said ship or vessel was, to wit, on the 3d day of December, 1822, in good safety at a port in Europe, to wit, at the port of Rotterdam, and that afterwards, to wit, on the said 3d day of December, in the year last aforesaid, the said ship departed and set sail from the port in Europe aforesaid, to wit, from the port of Rotterdam aforesaid, for and toward Baltimore aforesaid, on her voyage in said declaration mentioned; and that whilst the said ship was proceeding on her said voyage, and before the completion thereof, and her arrival at her port of destination aforesaid, to wit, on the 4th of February, 1823, to wit, in Helvoet roads, &c. by the perils and dangers of the seas, was stranded, and wholly lost to the said James, and that large sums of money, to wit, to the amount of $ 2,000, were then and there expended by said James, in and about the safeguard, defence, recovery, and preservation and reparation of said ship, which said sum of money, and [**6]  the said sum of $ 15,000, the defendants became and were liable to pay to the said James, according to the tenor and effect of said policy of insurance; and the said James in fact says, that at the time of making the said policy of insurance, and continually thence up to and at the time of the loss aforesaid of said ship, the said ship was his property, and that he was interested therein as valued, to the value of all the sums insured thereon as aforesaid, of all which premises the Chesapeake Insurance Company, to wit, on, &c. at, &c. had notice.

3d Count. Alleged as a breach of the covenants in the same policy--that before the completion of her said voyage, to wit, on the 4th of February, 1823, to wit, at Helvoet roads, to wit, &c. at, &c. before the arrival at her port of destination, Baltimore aforesaid, by the perils and dangers of the seas, and by stormy and tempestuous weather, and the violence of the winds and waves, was bulged, broken, and damaged, and destroyed, insomuch that the said vessel then and there became wholly lost to the said James, and a large sum of money, to wit, the sum of $ 2,000, was then and there expended by the said James, in and about the safeguard,  [**7]  defence and recovery, and preservation and reparation of the said vessel; which said sum of money, and the said sum of $ 15,000, the defendants, according to the tenor and effect of the said policy, became and were liable to pay said James; of all which premises the Chesapeake Insurance Company aforesaid had notice, to wit, &c.; yet the said the Chesapeake Insurance Company, although, &c.

To this declaration, the defendants below pleaded that they had not broken their covenant, upon which issue was joined.

1. At the trial of this cause, a variety of depositions, documents, and letters, were read, which the reporters do not deem it necessary, for the understanding of the points ultimately decided by either court, to introduce, but have prepared the following general statement of the evidence offered to the jury.

The plaintiff, to support the issue on his part, proved his property in the ship, the policy of insurance declared upon, and that he had tendered a deed of cession to the defendants, for his interest in the ship General Smith, which they refused to accept. He then read to the jury the following copy of a letter sent to the defendants:

"Baltimore, 4th February,  [**8]  1823.--Gentlemen--I observe by the Boston newspaper of the 29th January, that the ship General Smith, insured in your office pr. policy No. 7661, was driven ashore in a heavy gale of wind the 6th of December, and by a Charleston paper of the 26th of January, that on the 13th she was not got off. In so dangerous a situation as Helvoet roads, it is to be feared that a total loss has ensued. I therefore, as a measure of precaution for both your interest and my own, do hereby abandon to you, and claim a total loss. Respectfully, gentlemen, your obedient ser'vt. (Signed,)     James Bosley.

To the President and Directors of the Chesapeake Insurance Company."

The plaintiff then further offered proof, that the ship General Smith, upon the voyage mentioned in the policy of insurance declared upon, set sail in ballast from Rotterdam for Baltimore, on the 3d of December, 1822, and anchored about four miles below Rotterdam, on the same day; that on the 5th of December, being at anchor at Helvoet roads, with a pilot on board, a violent squall from the S. and W. struck the ship and drove her aground; that on the 6th, a violent gale coming on, notwithstanding the exertions of the master [**9]  and crew, the ship was driven 100 fathoms upon a mud bank by the force of the wind; that on the 7th the gale moderated; that every exertion was made to get the ship off, without avail; that she fell on her beam ends; at low water the bank was dry, and the people from the ship could walk around her, when she was from 200 to 300 yards from the edge of the water; that ice began to form about the middle of December, and made around the ship in large banks. The ship's ballast was, while she was aground, thrown overboard; assistance was procured from the shore, but with every exertion, the ship was not got off. She remained aground until from the 1st to the 4th of February, when she was at times afloat in her bed on the mud bank. On the 5th the ship floated, but as the ice had then broken, and there was much danger from getting among it, every exertion was made to keep her on the bank, and prevent her getting into the channel way. On the 13th of February, the ship was finally got off, and proceeded to Williamstadt, and afterwards to Dort, where she was hove out, both sides caulked at a heavy expense, and on the 13th of March again set sail for Baltimore, where she arrived on the 6th April,  [**10]  in a leaky condition. There was evidence that while the ship was aground, she was materially injured, strained and hogged; that the place on which she grounded, was very much exposed, the weather cold and severe, the crew greatly exposed and frostbitten; that the master was a man of skill and intelligence in his profession, faithful and attentive to his duties. After the ship's arrival at Baltimore, she was libelled by the seamen for wages, condemned, and sold under a decree of the District Court of the United States. The ship after being sold under the decree, was repaired in Baltimore, at considerable expense, and went to sea again.

The defendants offered evidence that the place where the ship was aground, was a soft mud bank, and that she could have been got off the bank at any time with proper exertion, and with little or no damage, and at no great expense; that she was not hogged by being ashore, and that she is still a good ship. Thereupon the plaintiff by his counsel, prayed the court to instruct the jury as follows;

First. If the jury find from the evidence that Captain Robinson, the commander of the ship in question on the voyage insured, was a man of integrity,  [**11]  and competent skill in his profession, and that after the ship was driven on shore in the manner stated in the testimony, he acted according to the best of his judgment for the interest of all concerned; and if the jury also find, that on the 4th of February, 1823, the time of the plaintiff's abandonment, the ship still continued on shore, and also continued on shore until the 13th of that month, and was at the time of said abandonment, and for some time before and after, in imminent danger of being wrecked and lost, that then the plaintiff is entitled to recover for a total loss, notwithstanding the ship was afterwards saved, and notwithstanding the jury may find that said Robinson might have erred in not choosing other means within his power, better fitted to the saving of his said vessel; provided they be of opinion, from all the evidence, that said error was such as a man of ordinary skill and judgment, and experience in the commanding of ships, might, under like circumstances, have committed.

Second. If the jury, find from the evidence, that the ship General Smith, on or about the 4th day of December, 1822, sailed from Rotterdam for Baltimore, on the voyage mentioned in the [**12]  policy of insurance on which this suit is brought, and while on the said voyage was, on or about the 5th of December, 1822, driven on shore near Helvoet, in the manner stated in the testimony; and if the jury also find, that the ship continued on shore until February 13th, 1823, and that during all that time while she was thus on shore, captain Robinson, the master of said vessel, acting according to the best of his skill and judgment, for the interest of all concerned, endeavored to get the vessel afloat to pursue her voyage, whenever he supposed it to be practicable, and safe to do so; and in, and as, to said endeavoring, acted as a man of ordinary skill and judgment, and experience in the commanding of ships, would, in like circumstances have acted; and if the jury also find, that the said Captain Robinson was a man of integrity, and of competent skill in his trade and business as master and commander of such a ship as the General Smith, for the voyage insured, and that notwithstanding the exertions so made, the said vessel, at the time the abandonment was made, continued aground and on shore, and incapable, therefore, of pursuing her voyage; and if the jury also find, that at the [**13]  time of said abandonment, it was, and continued to be, uncertain and doubtful, whether she could ever be got off in safety, then the said abandonment is valid, and the plaintiff entitled to recover for a total loss.

Third. If the jury find from the evidence, that the ship General Smith, on or about the 4th of December, 1822, sailed from Rotterdam for Baltimore, on the voyage mentioned in the policy of insurance, on which this suit is brought, and while on the said voyage, was, on or about the 5th of December, 1822, driven on shore near Helvoet, in the manner stated in the testimony; and if the jury shall also find, that the said ship continued on shore until the 13th of February, 1823, and that during all that time, while she was thus on shore, Captain Robinson, acting according to the best of his skill and judgment, and as a man of ordinary skill and judgment, and experienced in the commanding of ships, would, in like circumstances, have acted, endeavored, whenever it appeared to have been practicable and safe to do so, to get the ship afloat, to pursue her voyage; and if the jury also find, that the said Captain Robinson was a man of integrity, and of competent skill in his [**14]  profession, as commander of such a ship as the General Smith, for the voyage insured, then, that the ship was by being so cast on shore, arrested, and restrained in her voyage by perils insured against, and on the 4th of February, 1823, had been detained for an unreasonable length of time from the free use and possession of the plaintiff, and therefore the said abandonment is valid, and the plaintiff is entitled to recover for a total loss.

Fourth. If the jury find from the evidence, that the ship in question was driven on shore on or about the 4th of December, 1822, near Helvoet, when pursuing the voyage described in the policy of insurance on which this suit is brought, and continued on shore from that time until February 13th, 1823, and was thereby strained, broken and injured, to the extent and amount of more than half her value, that then the abandonment is valid, and the plaintiff is entitled to recover for a total loss, provided the jury shall also find, that during all the time the said ship was thus on shore, Captain Robinson, the master of said vessel, acted according to the best of his skill and judgment for the interest of all concerned, in and as to endeavoring to [**15]  get the vessel afloat to pursue her said voyage, and as a man of ordinary skill and judgment, and experience in the commanding of ships, would, in like circumstances, have acted; and provided also, that they find that the said Captain Robinson was a man of integrity, and of competent skill in his trade and business as a master and commander of such a vessel as the General Smith, for the voyage insured.

And thereupon the defendants, by their counsel, prayed the court to give the following instructions to the jury.

1st. That if the jury shall find from the evidence in the cause, that after the ship was blown ashore in Helvoet roads, she might have been got off at any time anterior to the 13th of February, 1823, at an expense of less than half her value, and been enabled thereby to prosecute her voyage without further delay, and that the means of getting her off were not employed by the master of the ship, owing to his unwillingness to make the expenditure, from an apprehension that it would not be approved and sanctioned by the plaintiff, his employer, and that the ship was thereby delayed in the prosecution of her voyage, from the 6th of December, 1822, to March, 1823; that [**16]  this delay having been unnecessary, was a deviation, which discharged the underwriters from all damage sustained by the ship subsequent to the time, at which she might have been got off.

2d. That if the jury shall find from the evidence in the cause, that the intelligence placed before the defendants by the plaintiff's offer to abandon, of the 4th of February, 1823, did not present the case of an entire destruction of the ship, nor a case in which she had been damaged to more than half her value, nor a case in which a total loss from stranding was in the highest degree probable, the case was not one in which the plaintiff was authorized to abandon, and claim for a total loss, and the plaintiff is entitled to recover only for a partial loss.

3d. That if the jury shall find from the evidence in the cause, that the intelligence placed before the defendants by the plaintiffs offer of abandonment, of the 4th of February, 1823, presented a case in which it was probable that the ship might have been got off from the shore in a reasonable time, at an expense of less than half her value, the case was not a proper case for abandonment, and the plaintiff can only recover for a partial [**17]  loss.

4th. That if the jury shall find from the evidence in the cause, that the ship when blown ashore in Helvoet roads, and detained there from the 6th to the 13th of December, in the manner described in the plaintiff's offer of abandonment of the 4th of February, 1823, was not in imminent danger from stranding, but was in imminent danger of being detained on the shore till ice would be formed, which might cut her to pieces, that such apprehended danger from ice not having been assumed as the ground of the offer to abandon, cannot be relied on by the plaintiff to support the abandonment; and even if it had been assumed as the ground of the offer to abandon, that the mere apprehension that ice would form, which might cut the ship to pieces, however reasonable such apprehension may have appeared, would have given no right to abandon: and that the plaintiff, had such been the ground of the offer to abandon, could only have recovered for a partial loss.

5th. That if the jury shall find from the evidence in the cause, that on the 4th of February, 1823, when the offer to abandon was made, the danger of a total loss from stranding was not in the highest degree probable, and that [**18]  at that time, the only danger that existed, was the danger of the ship's being borne by the water from the shore out into the current among the floating ice, and of being destroyed by the ice; the case was not on the 4th of February, 1823, a proper case for abandonment on the ground assumed by the plaintiff in his offer of abandonment of that date; nor would the case have been a proper one for abandonment had the plaintiff there known and assumed the said apprehended danger from the ice, as the ground of his offer to abandon; and that on the state of facts assumed in this prayer, he is entitled to recover only for a partial loss; but the court rejected each and every of the said prayers of both plaintiff and defendants, and were of opinion, and directed the jury as follows: That the plaintiff's intelligence of the state of his vessel, authorized the abandonment as offered in evidence, provided the existing state of facts on the 4th of February, authorized an abandonment for a total loss; that the danger from being cut to pieces from the ice, was one of the perils to which the stranding of the vessel exposed her, and if on the 4th of February she was damaged to the amount of more than [**19]  one-half her value, or was in imminent peril, and the highest degree of probability of actual or technical total loss existing, then the plaintiff is entitled to recover for a total loss, unless the captain had reason to believe that she could be got off in safety, for one-half her value, before the 4th of February, and from any cause whatever neglected to attempt it; that is to say, he was bound to go up to the amount of half her value, unless he had reason to believe that the means actually used by him were sufficient for that purpose. To which rejection of said prayers, as made by the plaintiff, and to the said opinion and direction of the court, the plaintiff excepted.

The cause having been submitted to the jury, under the foregoing instructions, they found a verdict of $ 5,786 36, for the plaintiff. Whereupon the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where a variety of facts have been proved, a prayer making a partial enumeration of them, and thereupon asking an instruction to a jury, will not be granted, if not sustained by a consideration of all the facts proved, which belong to the question, whether enumerated or not.

An insured is not compelled in any case to abandon. He has an election which rests in his discretion; but no right to claim for a technical or constructive total loss vests, until such election is made.

An election to abandon for a total loss cannot be made, until receipt of advice of the loss.

Intelligence of the loss of a ship derived from a newspaper, is sufficient advice to authorize an insured to abandon upon.

The information which is sufficient to authorize the assured, to give notice to the underwriter, that he abandons, must be of such facts and circumstances as would sustain the abandonment, if existing in point of fact, at the time the notice is given.

The mere stranding of a vessel, does not of itself, form a substantive ground of abandonment. The right to abandon on such an occurrence, depends on the attending circumstances.

So where the assured addressed the following note to the underwriter: "I observe by the Boston newspaper of the 29th January, that the ship S, insured in your office, was driven ashore in a heavy gale of wind, the 6th of December, and by a Charleston paper of the 26th of January, that on the 13th she was not got off. In so dangerous a situation as Helvoet roads, it is to be feared a total loss has ensued, I therefore as a measure of precaution both for your interest and my own, abandon to you, and claim a total loss." HELD, that this letter did not state to the underwriter, a sufficient reason for the offer to abandon. A mere apprehension that a total loss may have taken place, does not authorize the offer.

To justify the reversal of a court's judgment, on the ground of their having given an erroneous instruction to the jury, it must appear that the appellant actually, or probably, did sustain an injury thereby. If it did him no prejudice, no matter how erroneous, it forms no ground of reversal. 

COUNSEL:
Mayer, Johnson, and Taney, (Att'y Gen'l U. S.) for the appellants, cited, Rhinelander vs. Ins. Co. Penn, 4 Cranch. 41. Marshall vs. Delaware Ins. Co. 4 Cranch, 206, 208, 2 Marshall, 578. Lawrence vs. Ocean Ins. Co. 11 Johns. 293, 295. Wood vs. Lincoln and Kennebeck Ins. Co. 6 Mass. Rep. 482. Phil. on Ins.  [**20]  459. Peele vs. The Merchants' Ins. Co. 3 Mason, 27, 29, 41, 48, 53, 57, 58, 65. 2 Mar. 586. Columbian Ins. Co. vs. Catlett, 12 Wheat. 391. Idle vs. The Royal Exchange Co. 4 Serg. and Low, 279. Green vs. The Royal Exchange Co. 6 Taunt. 71. Bishop vs. Pentland, 14 Serg. and Low, 33. Phil. on Ins. 442, 448. 2 Mar. 598, 9, 601. Ralston vs. Union Ins. Co. 4 Binney, 386, 403. Dorr. vs. New Eng. Mar. Ins. Co. 4 Mass. 230. 3 Kent, 268. McIver vs. Henderson, 4 Maul. and Sel. 576. Goss vs. Withers, 2 Burr. 683. Miller vs. Fletcher, Doug. 231. Park. ch. 9, 219. Phill. on Ins. 442. Ib. 391. Anderson vs. Wallis, 2 Maul. and Sel. 248.

Glenn, and Wirt, for the appellee, cited, 2 Mar. 590, 565, 601. Dederer vs. Delaware Ins. Co. 2 Wash. C. C. R. 61. Phil. on Ins. 448. Peel vs. The Merchants' Ins. Co. 3 Mason, 27. 3 Kent. 265, 249. Hughes on Ins. 416. Bell on Ins. 610. 2 Mar. 586. Columbian Ins. Co. vs. Catlett, 12 Wheat. 391. Anderson vs. Wallis, 2 Maul. and Selw. 240. Everth vs. Smith, Ib. 278. Falkner vs. Ritchie, Ib. 290. Brotherston vs. Barber, 5 Ib. 418. Cologan vs. London Assurance Co. Ib. 446, 447. Patrick vs. Com. Ins. Co. 11 Johns. 13. Suydam and Wyckoff vs. Marine Ins. Co. 1 Johns. 181, 183.  [**21]  King. vs. Delaware Ins. Co. 2 Wash. C. C. R. 309. Phil. on Ins. 448. Wood vs. Lincoln and Kennebec Ins. Co. 6 Mass. 483. 11 Petersd. 466.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*462]  DORSEY, J., delivered the opinion of the court.
The first and third bills of exceptions, on the part of the appellant having been waived or abandoned, our duty is to inquire whether there be such error in the County Court's instruction to the jury, or their refusal of the appellant's prayers in his second bill of exceptions, as would require a reversal of their judgment? The propriety of the court's denial of the several instructions which they were called on to give, will be first examined.
The first prayer presents an hypothetical statement of facts, not enumerating all which had been proved, but predicated upon, and assuming the existence of those material facts, of which competent and adequate testimony had been offered, and the finding whereof, was indispensable to a recovery. These facts set forth in the bill of exceptions, were as fully in the view of the court, in making a disposition of the points presented, were as necessarily subjects [**22]  of consideration, as if they had been incorporated in the statement itself. The instruction requested could not for 

 [*463]  a moment have been sustained; nay, could not have been asked for, but upon this assumption.
The abandonment, one of those important links in the chain of testimony, is expressly referred to, and was to be regarded in the same manner, as if the proof, by which it was established, had been set out in the statement. If no sufficient abandonment had been made, the instruction prayed for could not have been granted. The finding of the facts enumerated, could of themselves form no basis of a recovery, as for a total loss. Before the court could have instructed the jury, that the plaintiff was entitled to such a verdict, they must of necessity have determined, that it was warranted by the abandonment. The sufficiency of the abandonment, the correspondence of its grounds with those relied on as evidence of loss, were clearly submitted for, and settled by the determination of the court below; and notwithstanding the act of 1825, in reviewing their judgment, from fit subjects for discussion before this tribunal.
The insured is not compelled in any case to abandon, [**23]  he has an election, which rests in his discretion; but no right to claim as for a total loss in its nature technical or constructive, can vest, until such an election be made. He can only abandon for a total loss; and his election to do so, can never be made until the receipt of the advice of the loss. It has been urged by the appellees, that the intelligence of loss communicated in this case, was of such an unauthentic nature, that the assured was not authorized to rely on its verity, and deal with the underwriters accordingly. But we cannot yield our assent to this suggestion. The information received would have carried conviction to any reasonable mind; was positive, untainted by any suspicions as to its truth; and if the facts which it made known, justified his abandoning, the insured was not bound to wait for more authentic advice.
Were the underwriters liable for a total loss, under the abandonment in the case at bar, is the first question to be 

 [*464]  disposed of. Before the expression of our opinion, let us refer to some of the authorities pertinent to this subject. In 1 Johns. 181. Suydam, et al. vs. Marine Ins. Co. the court say, abandonment must [**24]  be "on sufficient grounds, and the accident occasioning it, must be described with certainty, so as to enable the underwriter to determine, whether he be bound to accept. If he be not, he will of course refuse, and neglect to take measures for its preservation, which is one object of making an abandonment." A similar principle is found in the court's opinion, in King vs. Del. Ins. Co. 2 Wash. C. C. 300. It is incumbent on the insured to state to the underwriter a sufficient reason for the offer to abandon. "This is clear from the nature and use of an abandonment. The underwriter should have an opportunity of judging whether he is bound to accept the offer or not. If bound, that he may do so at once, and take proper means for the preservation of the property." As the assured must at the time of abandoning, state the grounds upon which he makes the abandonment, it is necessary, in order to make the act valid, not only that the existing facts should constitute a total loss; but also that the assured should be informed of the accident, which occasions the loss. He cannot abandon merely upon the apprehension, that a total loss may have taken place, and afterwards establish [**25]  his right to do so, by facts that subsequently come to his knowledge, and which were wholly unknown to him at the time of making the abandonment. Phil. Ins. 440. "The underwriters ought to know the grounds of the abandonment, that they may determine whether to accept. Accordingly, the assured must at the time of making the abandonment, make known to the insurers, the reasons for which he abandons. He cannot avail himself of any other ground, than that alleged by him at the time of abandoning; and if there be any other facts, (either known, or not known to him at the time,) on which an abandonment would be necessary, in order to entitle him to recover for a total loss, he must abandon anew, before he can recover for such a 

 [*465]  loss, on account of those facts." Phil. Ins. 448. "The facts of which the insured is informed, and which he makes known to the underwriters, as the ground of his abandonment, must constitute a total loss." Phil. Ins. 458.
From the authorities referred to, as well as upon principles of reason, justice and policy, we deem this rule undeniable, that the information which is sufficient to authorize the assured to give notice to the underwriters, [**26]  that he abandons, must be of such facts and circumstances, as would sustain the abandonment, if existing in point of fact, at the time the notice is given. The mere stranding of a vessel, forms not of itself, a substantive ground of abandonment. The right to abandon on such an occurrence, depends on the attending circumstances. If she be thrown so high upon the beach that her removal is impracticable, or if on a shore where the means of relief are unattainable, or where the exertion of those means would incur an expenditure exceeding half her value, then is the assured at liberty to abandon. To sustain this doctrine so constantly met with in the decisions of courts of justice, and in writers upon the law of insurance, it cannot be necessary to refer to authorities.
What was the intelligence communicated in this case? Simply this, "I observe by the Boston newspaper of the 29th January, that the ship Genl. Smith, insured in your office, per policy No. 7661, was driven ashore in a heavy gale of wind, the 6th December, and by a Charleston paper of the 26th January, that on the 13th she was not got off. In so dangerous a situation as Helvoet Roads, it is to be feared that [**27]  a total loss has ensued." It has not been contended, that the fears of the insured are equivalent to a total loss, and constitute a ground of abandonment. There is no such head in insurance law, as abandonment quia limet. Do the facts disclosed in the notice show a total loss, either actual or technical? for unless they do, the abandonment is wholly defective. If mere stranding be not a total loss, there is no total loss disclosed by the notice. The only facts upon 

 [*466]  which such a conclusion could rest, are, that in a gale of wind, the ship was driven on shore, and had remained there seven days. But whether she remained there from choice, to make some inconsiderable repair, as for example, to reship her rudder, or from necessity; whether she was thrown one foot, or one mile, from the channel of the river; whether she laid high and dry, or in ten feet water; whether she had sustained any damage by the accident; whether any effort had been made to get her afloat; or whether the accomplishment of that object was impracticable, or could be accomplished by the expenditure of ten dollars, or ten thousand dollars, were matters on which the insurer were left to speculate in utter [**28]  darkness. Can it seriously be urged that the underwriters, by the tenor and spirit of their contract, under such circumstances, were bound to have accepted the abandonment, and thus become the purchasers of the ship, at the valuation in the policy? If there be any case to sustain such pretensions of the appellants, it has not been cited in the argument, and certainly has eluded the researches of the court.
It has been contended, "that an abandonment does not depend on the information given at the time it is made, but on the facts, or state of the property, at the date of the abandonment." This position cannot be sustained; it has neither principle nor authority to support it. If it were true, it would follow that an abandonment would be effectual where a loss had occurred, although a knowledge of such loss, had never reached either the insurer or insured--that the insured need not make known the intelligence he has received of the disaster--that information of the slightest impending peril would support an abandonment, if at the time it was made, the condition of the thing insured constituted a total loss;--that such doctrine is at war with every adjudicated case on the subject, it [**29]  can hardly be necessary to remark. Suppose both the insurer and insured to have resided at Rotterdam, or in the immediate vicinity of the place 

 [*467]  of stranding, and that on the 13th of December, (the time when the facts relied on, as showing a total loss,) the abandonment had been made; and made too, not only on the grounds stated in the notice, but upon all the circumstances connected with the disaster, could it be insisted that a total loss then existed, in point of fact, or was "in the highest degree probable," or that the moral certainty of its occurrence was such, that upon principles of reason or law, it might be assumed as having already taken place? The ship lay on the bank, free from injury, save an unimportant one to her rudder, which had been repaired. Nothing was required to place her in a state of safety in the stream, but a shifting of the wind to the northward or westward. Could the loosest dictum that ever escaped a judicial tribunal, make such a state of things a total loss? If the right of abandonment existed not where the contracting parties resided, at the theatre of the disaster, it derives no additional strength from the fact of their residence [**30]  being several thousand miles distant. The claim to abandon, depends altogether upon the nature of the intelligence received, which must be communicated to the assurer; but here it is attempted to sustain this abandonment, not upon the facts received by the assured, and made known to the underwriters, nay, not even upon the actual condition of the property insured, at the date to which the intelligence relates, but upon accidental contingencies, transpiring a month or two months afterwards, and never previously submitted to the insurer, as the basis of the claim. The sufficiency of an abandonment rests not merely on the occurrence of facts, which constitute a total loss, but upon their knowledge by the assured, the communication thereof to the assurer, with an offer to abandon, and the continuance of the disaster at the date of the abandonment.
Were we to extend the right of abandonment to the extent to which it has been insisted on in the present trial, it would be carried much beyond any limits heretofore prescribed to it. According to our view of the subject, this 

 [*468]  right has been already expanded as far as expediency or justice will tolerate. A policy of insurance is [**31]  a contract of indemnity, not of sale. If, on light grounds, or mere probabilities of loss, a right of abandonment arises, you convert underwriters into traders, and impose on them, if they regard the interests they represent, the duty of inquiring into the nature and value of the cargo insured, the grounds upon which rests the calculation of profit from the commercial adventure, and all the probable consequences of a coercive sale, at a port intermediate the termini of the voyage; thus compelling the insured to make public that commercial intelligence, upon which his adventure is predicated, and upon the concealment of which depends the success of his enterprise. There is much good sense in the remark by C. J. Willes, in Willes' Rep. 640, "that insurances were contracts of indemnity, and not for profit or gain;" and there is equal wisdom in what is found in a learned commentary on insurance law, Hughes' Ins. 415.--"It is clear that a policy of insurance, both in its object and form, is merely a contract of indemnity. It contains no stipulation respecting abandonment, has its origin from the nature of the contract, as a contract of indemnity. The underwriter does not [**32]  stipulate, under any circumstances, to become the purchaser of the thing insured; it is not supposed to be in his contemplation; he is to indemnify only. This being the principle, a practice or doctrine which is calculated to break in upon it, ought to be narrowly watched."
The cases of Peele et al. vs. The Merchants' Ins. Co. 3 Mason C.C. 27, and Fontaine vs. The Phoenix Ins. Co. New-York, 11 Johns. 293, have been much relied on by the appellants. But is there the slightest similitude between the nature of the facts shewing the loss in those cases, and those which belong to the case before us? In the case in 3 Mason, the Argonaut was cast upon the rocks, bilged, the tide flowed freely through her, her sails and rigging cut from the masts, all her furniture removed for safety, the master and crew had deserted her expecting her to go to 

 [*469]  pieces, if the wind had veered to the north-west, her destruction inevitable, and her situation was so desperate, that there remained of her recovery, but a glimmering ray of hope; under these circumstances, Justice Story held the loss to be total, in accordance with the opinion of Lord Ellenborough [**33]  , who in Anderson vs. Wallis, 2 M. & S. 240, says, "there is not any case, nor principle, which authorizes a total loss, unless where the loss has been actually a total loss, or in the highest degree probable, at the time of abandonment." In the case in 11 Johns. the vessel was driven against the rocks at St. Pierre, Martinique, and beating against them some time, was driven so high on shore, that when the gale subsided and the sea became calm, there was only two or three feet water on the out side of her. The master, mate, and supercargo, made depositions that it would cost more than her value to get her off; that a survey was had of the vessel, and she was condemned, and sold: the purchaser afterwards got her off at an expense of $ 500. The court held, that her situation being desperate at the time of the survey, the subsequent good fortune of the purchasers did not destroy the plaintiff's right to recover for a total loss, unless the jury believed she could have been got off for half her value. It is unnecessary to draw the strong lines of discrimination existing between the cases cited, and that now under consideration. They are authorities against the appellant's [**34]  right to recover.
This first prayer appears to have been framed, and it was so argued before us, as if intended to call on the court to decide, that "imminent danger of being wrecked and lost," justified abandonment, and recovery for a total loss. In this aspect of the prayer, we entirely concur with the County Court in its rejection: mere "imminent danger" of a total loss, never has been deemed sufficient ground to entitle the assured to a verdict for a total loss. The courts have only gone thus far in the cases, where danger was not only imminent, but the loss in the highest degree probable.

 [*470]  We wish to be understood as not expressing any decided opinion in this case, whether if all the circumstances connected with the stranding of the General Smiith, from the 5th of December, 1822, to the 6th of February, 1823, or to any previous day, had been inserted in a notice of abandonment, delivered to the underwriters, that the plaintiff would not be entitled to recover for a total loss, but as at present advised, we should deliberate much, and long, before our minds could be brought to the adoption of such a conclusion.
The second prayer has been discussed, as if presenting [**35]  the question, whether the loss were not total, "as by the stranding of the ship, she, for all the useful purposes of a ship for the voyage, is, for the present, gone from the control of the owner, and the time when she will be restored to him in a state to resume the voyage, is uncertain." As conclusive of the affirmative of this question, and to show that the right to abandon is immediate and complete, the appellant relies on the rule laid down by Justice Story, in the case of Peel et al. vs. The Merchants' Ins. Co. 3 Mason C.C. 27, at p. 65, where a learned and elaborate review is taken of most of the English and American cases on the subject, in the conclusion of which, that enlightened jurist says, "the right to abandon exists, whenever, from the circumstances of the case, the ship, for all the useful purposes of a ship for the voyage, is, for the present, gone from the control of the owners, and the time when she will be restored to him in a state to resume the voyage, is uncertain, or unreasonably distant, or the risk and expense are disproportionate to the expected benefit, and objects of the voyage." This literal construction, and technical application of the [**36]  rule, is wanting in candor and justice to the learned judge. His rule was extracted from the adjudicated and admitted principles and cases that he refers to, which immediately precede it, and on which he relies as its basis. It ought not, therefore, in fairness, to be applied to cases in no wise analogous in their circumstances: but admitting the correctness of its application to the perils enumerated, embargoes, blockades, 

 [*471]  detentions, submersions, and shipwrecks, which cannot be repaired in the ports where the disasters happen, it surely is not a fair, or rational interpretation of the judge's opinion, to embrace within it the case of mere stranding, when in a preceding part of the same opinion, he states it to be a position "incontrovertible, that the mere stranding of the ship is not, of itself, to be deemed a total loss, so as to entitle the insured immediately to abandon." If, however, the true exposition of this rule, be such as is given it by the counsel of the insured, we must be excused in withholding from it our approbation. They allege that the General Smith being aground, "for all the useful purposes of a ship for the voyage, is, for the present, gone from [**37]  the control of the owner, and the time when she will be restored to him, in a state to resume the voyage, is uncertain," and therefore the insured may rightfully abandon. By the same system of reasoning, every stranding would confer the same right; as the time of disentanglement from such a peril, is ever a matter of uncertainty. Before we could yield our assent to the rule thus literally expounded, the words, "and the time when she will be restored to him in a state to resume the voyage is uncertain," must be stricken out, and their place supplied by the following insertion: "and that she will, be restored to him in a state to resume the voyage, is highly improbable." But we must not be understood, as recognizing this literal and forced construction of an isolated section of the court's opinion. It is manifestly contradicted both by what precedes and follows the introduction of this clause: mere stranding being in limine, alleged to be no ground for abandonment, and the first sentence that follows the rule, and which was designed to illustrate and announce its true meaning and operation, and the ground upon which it was predicated, declares, "that in such a case the law deems [**38]  the ship, though having a physical existence, as ceasing to exist, for purposes of utility, and therefore subject to be treated as lost." Could such an absurdity be imputed to the law, that it should deem a ship as ceasing to exist for purposes of 

 [*472]  utility, and be treated as lost, because she was grounded on a beach, from which she would be extricated by the first favorable change of the wind? Such was the condition of the ship, now the subject of litigation, at the time she was seen by those whose reports of her disaster reached the owner, and formed the ground of his abandonment. But it is an useless consumption of time, to inquire whether the facts relied on in the second, third, and fourth prayers of the appellants, in contemplation of law, amount to a total loss. They were not made the grounds of abandonment, nor are they consequences to have been anticipated, as necessarily flowing from them: the offer to abandon, having failed to show the condition of the ship desperate, her total loss, in the natural course of things, inevitable, or "in the highest degree probable," was wholly invalid, and consequently, the very substratum of the plaintiff's action having failed,  [**39]  all prayers sanctioning his right to recover for a total loss, were properly rejected by the court.
Having disposed of the first branch of this case, the only remaining inquiry is, has the appellant any just reason to complain of the instruction given by the court to the jury. To justify the reversal of a court's judgment, on the ground of their having given an erroneous instruction to the jury, it must be made appear, that the appellant actually, or probably, did sustain an injury thereby. No matter how erroneous the instruction, if it could work no prejudice to the appellant, it forms no ground for reversal. So far from the appellant being prejudiced by the court's instruction, it conferred on him an essential benefit, to which, in our view of the subject, he was not entitled. It permitted the jury, upon a state of facts which they were left at liberty to find, to give the appellant a verdict as for a total loss, whereas the direction ought to have been, that from the insufficiency of the abandonment, they were not authorized to give such a verdict, no matter what the proof might be. Therefore, although we disapprove, in part, of the instruction given to 

 [*473]  the jury by [**40]  the court below, we deem it no fit subject of complaint to the appellant.
Concurring with the County Court in their rejection of the appellant's four prayers, in the second bill of exceptions, and seeing no ground of reversal in their instruction to the jury, we affirm the judgment.
JUDGMENT AFFIRMED.
Note.--After the verdict in this cause, the plaintiff moved for a new trial; and filed in court as the foundation of that motion, the depositions of nine of the jurymen,--declaring, that they had considered in making up their estimate of the plaintiff's damages, that he had received the proceeds of the sale of the ship General Smith, at or about the time of her being sold by the Marshall, in July 1823, and that he had been accordingly charged with interest upon such proceeds, from the supposed time of its receipt by him, until the vendition of the verdict, and that they believed the other jurors acted upon the same views.--The fact was, that the plaintiff received those proceeds in 1827. The motion for a new trial was resisted, upon the principle, that the deposition of a juror, was not competent evidence to prove this mistake; and the whole subject was most elaborately [**41]  discussed.
The County Court, ARCHER, J.--I have carefully examined the cases cited in the argument of this case, and am of opinion, that the testimony of jurors cannot be heard to impeach their verdict, whether the conduct objected to in the jury, be misbehavior or mistake. The New York cases are full to this point--so are the cases in England, since the revolution, though very contradictory before that period. The cases in 2 T. R. in 6 Cowan, and 1 Wendall, decide, that no evidence can be received from the jury, to show mistake. I think these decisions right, because, were the law different, an inquisition might be instituted in every case, into the grounds and motives of a jury for their finding, in order to ascertain whether, in coming to given conclusions, they had not mistaken facts. Verdicts of juries, would then in all cases, be uncertain. To permit such inquisition into the motives of juries, would, it appears to me, be against public policy, and lead more frequently to the prostration of justice, than to its preservation.
Independent of the above ground, I should be opposed to a new trial in this case. Treating the loss of the plaintiff as partial, and not as total,  [**42]  (for with this branch of the jury's finding, no fault has been found,) I am not satisfied that injustice has been done to the plaintiff. He has obtained a verdict for $ 5786, and has received $ 4692 from the sale of the vessel, making in all, the sum of $ 10,478.--Now when the probable deterioration of such a vessel, on such a voyage, is taken into consideration, I am by no means clear; that the indemnity of the plaintiff has been inadequate. Besides, considering this as a partial loss, the time when Mr. Bosley received the proceeds 

 [*474]  of the sale, would seem to be entirely immaterial to any just determination of the case,--for if the loss were partial, the property in the vessel and its proceeds always remained in him, and he might employ them, or let them remain idle, without at all affecting the subject matter of inquiry here.
The motion for a new trial is overruled.  

5 of 43 DOCUMENTS 

M. P. MITCHELL vs. JAMES DALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 361; 1832 Md. LEXIS 21 

December, 1832, Decided 

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

This case has been in this court before, and was reversed on the appeal of the present appellant, at June term, 1828, 2 Harr. & Gill, 159, and sent down with a procedendo to the County Court.

It was an action of Assumpsit instituted by the appellant against the appellee, on the 10th day of October, 1828.

The defendant pleaded non-assumpsit, and issue was joined.

1. At the second trial the plaintiff, to support the issue joined on his part, gave in evidence the following letter of guaranty, and the memorandum annexed to the same, both of which, it was admitted, were in the hand writing of the present defendant.

"Baltimore, 3d January, 1821. Mr. M. P. Mitchell: Sir, as Mr. Archibald Austin, agent of Jacob Lewis & Co., wishes to obtain some goods of you, on a credit of four months, I hereby agree to guaranty the payment for the amount he may take at this time, if that will facilitate the business between you and him. Yours respectfully. James Dall."

Amount for which J. Dall is responsible:

________________________________________________________________________________
Goods, 1/2 bill of M. P. M.	$ 372 07	
 Do. Charles Moss's bill,	180 90	
	
	$ 552 97	
________________________________________________________________________________

He further gave in [**2]  evidence that, on the 25th of October, 1820, he sold to Jacob Lewis & Co. the persons named in said guaranty, merchandise to the amount of $ 395 89, on a credit of 6 months, and that on the date of said guaranty, and upon the faith thereof, he supplied the said Lewis & Co. with additional merchandise to the amount of $ 552 97, and which is noted in the memorandum aforesaid, at the foot of said guarantee. He also gave in evidence that he afterwards received from said Lewis & Co., by the hands of James Dall, the defendant, $ 400 on the 10th of May, 1821, and another $ 400 on the 16th June, 1821; and, in order to shew that the firsts of said sums, $ 400, was intended by said Lewis & Co. to be applied by the plaintiff, in the first instance, to the discharge of the first debt, contracted on the 25th of October, 1820, of $ 395 89, gave in evidence to the jury, the following letter written by Archibald Austin, as agent of said Lewis & Co., to the plaintiff, having first proved that said Austin was authorized by Lewis & Co. to write said letter.

"Havre de Grace, 8th May, 1821. M. P. Mitchell Esq. Sir, we regret to observe by yours of the 7th inst. that you have drawn upon us, at three [**3]  days' sight, for $ 395 89, not having funds here at this time to meet it, but we presume before the draft becomes payable you will be paid the amount of it, having directed Mr. John P. Austin, whom we despatched on Saturday week to Norfolk for money due from the government on deliveries of stone, to pay Mr. Dall the amount of the first invoice, to pay over to you, on his return through Baltimore.

"We wrote Mr. Dall to this effect, but, as it would appear he has not informed you, we presume he must have been absent. As Mr. A. was directed to return with all possible despatch, and having intelligence of his leaving Old Point Comfort for Norfolk on Wednesday last, we have no doubt he will be in Baltimore in two or three days, when he or Mr. Dall will call and pay the amount of your draft. Very respectfully, &c. your obedient servants.

Jacob Lewis & Co. per A. Austin."

For the same purpose the plaintiff further gave in evidence that, on the 7th of May, 1821, the day preceding the date of said letter, he drew a draft on Lewis & Co. at three days' sight, for $ 395 89, being for the amount of said first debt of the 25th of October, 1820, which, not being accepted by them, was [**4]  returned to the plaintiff on the 11th of the same month, and was by him lost or destroyed. And he further gave in evidence the following letter from Lewis & Co. written by their agent to the defendant, said letter having been exhibited by the defendant at the trial of this cause.

"Havre de Grace, June 13th, 1821. Dear sir,--we enclosed you on the 8th inst. $ 200 to pay Mr. Mitchell; we now have the pleasure to enclose two hundred more, which will enable you to pay the balance due him, or part to him and Moss as you think best. We hope soon to remit more. In the mean time remain respectfully yours, &c.

Jacob Lewis & Co. per A. Austin."

"James Dall, Esq."

"Dear James: I feel a little anxious about the $ 200 sent you on the 8th, as we have not heard from you since--thank you to acknowledge the receipt of that and the enclosed, and let me know how you paid it, &c. Yours affectionately.

A. Austin."

And also the following copy of a letter (having first given the defendant notice to produce the original) from the plaintiff to the defendant, together with the answer of defendant to said letter,

"17th November, 1821. James Dall, Esq. Dear sir,--as Messrs.  [**5]  J. Lewis & Co. have failed to remit me the balance of the account, and being desirous of having it settled, I hope it may not be inconvenient for you to discharge the same, a statement of which I now hand you.

M. P. Mitchell."

"Baltimore, Nov. 19th, 1821. Mr. M. P. Mitchell: Sir, yours of this date came duly to hand through the post office, and I merely changed the direction thereof to that of Jacob Lewis & Co., Havre de Grace, hoping that it will produce a speedy attention and remittance to amount of the balance, if not, further attention on my part will be applied.

Yours respectfully.     James Dall.

He also gave in evidence that the plaintiff had sent no other letter to the defendant, in the month of November, 1821, than the letter of the 17th.

The plaintiff then proved by A. Austin, who was examined, under a commission, sent to New York, that he was agent for the firm of Jacob Lewis & Co., at Havre de Grace, in Maryland, in the years 1820 and 1821. That Jacob Lewis & Co. did purchase of M. P. Mitchell, the plaintiff, on the 25th of October, 1820, goods to the amount of $ 395 89, and made a further bill with the said M. P. Mitchell, on the 3d of January,  [**6]  1821, to the amount of $ 552 97; the sum of $ 180 90, being Moss's bill, being included therein; which bill of $ 552 97 was guarantied by Mr. James Dall. That Mr. M. P. Mitchell wrote the following letter to J. Lewis & Co.

"Baltimore, May 7th, 1821. Messrs. J. Lewis & Co. Gentlemen, I have this day drawn on you, at three days' sight, in favor of J. C. Richards, Esquire, for $ 395 89, amount of your purchase of 25th October last, on six months' credit. Your last purchase is also due. M. P. Mitchell."

And that the same was received by Lewis & Co. That he presumes the original is among the papers of Lewis & Co. in Havre de Grace, as he last saw it there, but he cannot say whether it be now lost or destroyed, or not. That Jacob Lewis & Co. wrote a letter to M. P. Mitchell on the 8th of May, 1821. (Ante. 363.) That he was authorized to write such a letter, and did accordingly do so, in consequence of the inability of Lewis & Co. to meet the draft at the time. That he cannot recollect precisely what directions he gave Mr. Dall, but he knows that money was received by Mr. Dall from Jacob Lewis & Co. for the purpose of securing him, and being paid by him over to M. P. Mitchell on [**7]  his claims. In answer to interrogatories, on the part of the defendant, the deponent says his impression is, that the money which was handed by him, or his order in 1821, to the defendant, was intended to be applied in the first instance, to the payment of that part of Lewis and Co's debt, which was warranted by the defendant. That the second and third sums, consisting of two hundred dollars each, were remitted by him, the deponent, to the defendant, and were intended to pay M. P. Mitchell, but were not remitted directly to him. That the first sum of four hundred dollars was paid in Baltimore, by John P. Austin, to the defendant, and deponent has no doubt, was paid to the defendant, and not to the plaintiff, to save the defendant from the responsibility of his guaranty.

The defendant then offered in evidence, the deposition of John P. Austin, taken under a commission issued to New York, who proved that he was, during the years 1820 and 1821, agent of the firm of Jacob Lewis & Co. That he does not of his own knowledge, know of the purchases of goods by said Lewis & Co. of the plaintiffs, on the 25th of October, 1820, and 3d of January, 1821, but Mr. Dall informed the witness, at [**8]  or about the beginning of the year 1821, that he had guarantied to said M. P. Mitchell, payment of the sum of $ 552 97, including a certain bill of one Moss. Deponent further stated, that in the year 1821, he handed to Mr. James Dall, four hundred dollars, to be applied to the payment of Mr. Dall's guarantee of $ 552 97, on account of Jacob Lewis & Co's indebtedness to M. P. Mitchell, and the witness is not able to say whether he, at that time, knew of any other indebtedness existing on the part of Jacob Lewis & Co. to M. P. Mitchell. That he, deponent, paid the four hundred dollars in Baltimore, to the defendant and not to the plaintiff, to relieve the defendant from his guaranty. He further gave in evidence the following letter, to him from the plaintiff, and which was admitted to be in the handwriting of the plaintiff, and the following receipts, also admitted to be in plaintiff's hand writing.

"Baltimore, 5th May, 1821. Mr. J. Dall. Dear sir, I think it necessary to inform you that the amount for which you have become responsible with me, for Mr. A. Austin, as agent for J. Lewis & Co. becomes due this day.

Very respectfully, &c.     M. P. Mitchell."

"$ 400. Baltimore,  [**9]  10th May, 1821. Received of Jacob Lewis & Co. through James Dall, four hundred dollars, on account.     M. P. Mitchell."

"Baltimore, 16th June, 1821. Received of Mr. James Dall for account of Messrs. Jacob Lewis & Co. of Havre de Grace, four hundred dollars.     M. P. Mitchell."

And thereupon the plaintiff, by his counsel, upon the whole of said evidence, prayed the opinion and instruction of the court to the jury, as follows:

1st. The plaintiff prays the opinion of the court to the jury, that from the evidence in the cause, they must find that Lewis & Co. directed the plaintiff to apply the first payment of $ 400, of the 10th of May, 1821, received through the defendant, and as given in evidence by him, to the discharge, in the first place, of the draft of $ 395 89, being the amount of the first invoice referred to in the letter of Lewis & Co. by their agent, Austin, to the plaintiff of the 8th of May, 1821.

2d. That the said letter of the 8th of May, 1821, from Austin as the agent of Lewis & Co., if the jury believe the same to have been written by their authority, and to have been received by the plaintiff, prior to the said first payment of $ 400, was [**10]  an application by them of said payment, to the discharge of the said draft and first invoice, and binding the plaintiff to make such application of it, unless the jury believe that, between the date of said letter and the receipt of said payment, the plaintiff received a subsequent direction from Lewis & Co., or their authorized agent, for that purpose, either expressly or impliedly, to make a different application of it, and that there is no evidence in the cause, from which the jury can find any such subsequent direction.

3d. That if the jury believe that Lewis & Co. intended at the time said first payment was made, that it should be applied to the discharge of the said draft, the plaintiff was authorized so to apply it, no matter what might have been the intention of the defendant, at the time he handed over the money to the plaintiff, or of John P. Austin, from whom it had been previously received by defendant.

4th. That the plaintiff was authorized to apply said payment to the discharge of that part of the debt due by Lewis & Co. to him, which was first contracted, unless he believed, or had good reason to believe at the time of receiving it, that they, Lewis & Co.,  [**11]  intended to make a different application of it, and that there is no evidence in this cause that the plaintiff did so believe, or that he had good reason to believe that any such intention existed, on the part of Lewis & Co.

5th. That upon the whole evidence the plaintiff is entitled to recover.

But the court refused to give each and every of said opinions and instructions to the jury, except the one asked for in the third prayer.

The plaintiff excepted, and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

On the 25th of October, 1820, M, of Baltimore, sold L, of Havre de Grace, Md. merchandise to the amount of $ 395 89, at 6 months' credit. On the 3d of January, 1821, L made further purchases from M, to the amount of $ 552 97, at 4 mos. credit, which last sum was guarantied by D. On the 5th of May M notified D that this guaranty was due, and, on the 7th, M drew upon L for the amount of the first purchase. On the 8th L advised M, that he could not pay this draft, and wrote he presumed "before it becomes payable you will be paid the amount of it, having directed A to pay D the amount of the first invoice, to pay over to you. We wrote D to this effect: in two or three days he (A) or Mr. D. will call and pay the amount of your draft." On the 10th D paid M $ 400, for which the latter gave a receipt, viz. "received of L through D, on account," &c. On the 16th June, D paid M $ 400, for which he gave another receipt, viz. "received of D for account of L," &c. The transactions between M and L were conducted by agents, who deposed at the trial, that the payments in 1821 were handed to D to be applied for his security and relieve him. In an action upon this guaranty it was held, that if the jury believed that when the first payment of the 10th May was made, M had received L's letter of the 8th, then M was bound to apply that payment in discharge of the purchase, unless L before the payment gave different directions, or M had reason to believe he intended a different application.

It is a general rule, that a debtor on different accounts, may when he makes a payment, apply it to which account he pleases; but, if he does not at the time of payment apply it specifically to either, but makes it generally, or on account, the creditor who receives it, may apply it to which account he pleases.

The application of a payment need not be expressly directed at the time by the party paying the money, but his intention may be inferred from the circumstances of the particular case.

The mere fact that a payment was made to a creditor, having several demands upon the same debtor, with the debtor's money, through one who was the security of the debtor for one of the debts, is not a circumstance from which any inference can arise, that the debtor intended it should be applied to the debt of which such agent was the guaranty.

Where there is evidence tending to prove a controverted fact it should be left to the jury.  

COUNSEL:
Johnson, for the appellant.

As the money which the plaintiff received on the 10th of May, 1821, was the money of Lewis & Co. and not of Dall, the defendant, the former, and not the latter, had a right to direct the application, and if no application was made by Lewis & Co. then the right devolved upon Mitchell, the creditor.

The letter of May 8th, 1821, from A. Austin, to the plaintiff, and the draft of the plaintiff on Lewis & Co. for the amount of the first invoice, were not before the jury in the former cause, both having been decided by the County Court, to be inadmissible, 2 Harr.  [**12]  and Gill, 170.

Now, that letter, he contended, was the authority to Mitchell, to make the application to the first debt, and he was bound so to apply it. The question, of how this payment should be applied, is a question with which Dall has no right to interfere, it being exclusively a question between Lewis & Co. and the plaintiff. Nor could John P. Austin, who handed the money to Dall, control, in any way, its application. If, however, it be admitted that he could, and the intention, as proved to have been entertained by him, that the payment should go in discharge of Dall's guaranty, would have been binding on Mitchell, if communicated to him, it does not appear to have been so communicated. The fact that Dall handed the money to Mitchell, is of no importance, because the letter of the 8th of May, 1821, which directed the payment to the first debt, said that Dall would probably hand the money.

The two payments of May and June, 1821, amount to $ 800, being more than Dall's guaranty, yet in November of the same year, in answer to a letter from the plaintiff, calling on him for the balance, instead of denying that he owed a balance, he premises to give the claim further attention,  [**13]  if Lewis & Co. did not.

That a creditor has a right to apply a payment to a debt guarantied, when he has one not so secured, he cited Kirby vs. The Duke of Marlborough, 2 Maule and Selw. 18. 3 Stark. 1092. Brewer vs. Knapp, 1 Pick. 337. 1 Serg. and Low. 202. He referred also in the argument, to Mitchell vs. Dall, 2 Harr. and Gill, 159, 173. Mayor of Alexandria vs. Patten, 4 Cranch. 320. Gwynn vs. Whitaker, 1 Harr. and Johns. 754.

Williams, for the appellee.

John P. Austin was as much the agent of Lewis & Co. as Archibald, and the agency of the former, as appears from the evidence, had a particular reference to their money transactions, and when he went to Baltimore with the money, he possessed all the authority of Lewis & Co. over the subject. Now Austin says that his intention, when he gave the money to Dall, was that he should relieve himself from his guaranty, and it is difficult to ascribe to him any other motive; nor can it be believed that Dall did not pay the money to Mitchell, for the purpose. The receipt shows that Mitchell did not apply the money to the old debt of $ 395 89, for if he had, it would have been in full of that debt, and the balance would have [**14]  been applied to the guarantied debt. Why should the money have been placed in the hands of Dall at all, if the object had not been to relieve him from his responsibility? Upon the application of payments, he cited Gwynn vs. Whitaker, 1 Harr. and Johns. 755. The first right of application is with the debtor; if he does not do it, the creditor may, and if both omit, the application is made by the law. The application, whether made by debtor or creditor, is made at the time of payment only, though there are perhaps, modern cases establishing a different rule. Robert vs. Garnie, 3 Caine's Rep. 14. Simson vs. Ingham, 2 B. and C. 65. 9 Serg. and Low. 29.

And whether the debtor has applied a payment to one debt or another, expressly or impliedly, is a question for the jury, and this is so, whether the evidence be in writing or by parol. Etting vs. Bank U.S., 11 Wheat. 75.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*370]  BUCHANAN, Ch. J., delivered the opinion of the court.
This case was once before in this court, and was sent back under a procedendo, and it now comes up again upon a bill of exceptions taken [**15]  at the trial, on the part of the appellant, containing five prayers, the first and last of which, can neither of them be sustained. Not the former, because the prayer to the court was for a direction to the jury, that from the evidence they must find that Lewis & Co. directed the plaintiff to apply the first payment of $ 400 received through the defendant, to the discharge, in the first instance, of the draft of $ 395 89, which they were not bound to do, if they were not satisfied that the letter of the 8th of May, 1821, from Archibald Austin, the authorized agent of Lewis & Co. to the plaintiff, containing the direction relied upon, for the application of the money, had been received by the plaintiff, which was a matter for the jury, and could not properly have been taken from them by the court. The court, therefore, did right in refusing to give the instruction asked for, which could not have been given without determining as well the fact, that the letter was written by the authority of Lewis & Co., as, that it had been received by the plaintiff, and that would have been an usurpation of the province of the jury; nor the latter, because it was a general [**16]  prayer not sanctioned by the act of 1825, ch. 117, under the construction heretofore given by this court to that act.
There is no question before us on the third prayer; that having been granted, and no exception taken by the defendant. 

 [*371]  But we think the instructions asked for in the second and fourth prayers, should have been given.
On the 25th of October, in the year 1820, the plaintiff sold goods to Lewis & Co. to the amount of $ 395 89, on a credit of six months; and on the 3d of January, 1821, he let them have another parcel of goods, to the amount of $ 552 97, on a credit of four months, upon the guaranty of the defendant Dall, upon which guaranty this suit is founded. It appears from the evidence set out in the bill of exceptions, that on the 7th of May, 1821, both debts being then due and unpaid, the plaintiff wrote to Lewis & Co., in these words: "I have this day drawn on you at three days' sight, in favor of J. C. Richards, Esq. for $ 395 89, amount of your purchase 25th of October last, on six months' credit. Your last purchase is also due." And gave in evidence that on the same day, he drew a draft on them at three days' sight, for [**17]  $ 395 89, the exact amount of the first debt, of the 25th October, 1820, which not being accepted, was returned to him.
He also gave in evidence a letter of the 8th of May, 1821, written for Lewis & Co. by Archibald Austin, their agent for that purpose, addressed to him saying, "we regret to observe by yours of the 7th instant, that you have drawn upon us, at three days' sight for $ 395 89, not having funds here at this time to meet it; but we presume before the draft becomes due, you will be paid the amount of it, having directed Mr. John P. Austin, whom we dispatched on Saturday week to Norfolk, for money due by the government on deliveries of stone, to pay Mr. Dall the amount of the first invoice, to pay over to you on his return through Baltimore. We wrote Mr. Dall to this effect; but as it would appear he has not informed you, we presume he must have been absent; as Mr. Austin was directed to return with all possible despatch; and having intelligence of his leaving Old Point Comfort on Wednesday last, we have no doubt he will be in Baltimore in a few days, when he or Mr. Dall, will call and pay the amount of your draft." 

 [*372]   [**18]  It is in proof that John P. Austin, the person named in that letter, did put into the hands of Dall, the defendant, $ 400; and that on the 10th of May, 1821, only two days after the date of that letter, Dall paid over $ 400 to the plaintiff, and took from him a receipt in these words, "received of Jacob Lewis & Co., through James Dall, $ 400 on account." And the question is, how that payment should be applied, whether in the first place, to the first debt of $ 395 89, the amount of the draft of the 7th May, 1821, or to the debt of $ 552 97, guarantied by Dall.
It is a general rule, that a debtor on different accounts may, when he makes a payment, apply it to which account he pleases; but if he does not at the time of payment, apply it specifically to either, but makes it generally, or on account, the creditor who receives it, may apply it to which account he pleases. And it makes no difference, though one debt be due on open account, and the other on bond, or the one on open account, and the other secured by a guaranty; in either case, the creditor may apply the unappropriated payment to which debt he chooses, and is not bound to apply it so as first to relieve [**19]  the surety, but may appropriate it at his discretion, in the first instance to the open account, and that although the open account existed anterior to the bond or guaranty, and the surety in the bond if there be one, or the guaranty had not notice of it, at the time of entering into his liability.
The application of a payment, it is true, need not always be expressly directed at the time, by the party paying the money; but his intention may be inferred from the circumstances of the particular case; and a payment may be attended by circumstances demonstrating its application as clearly, as it could be demonstrated by words. As in the case put by the chief justice in Tayloe vs. Sandiford, 7 Wheat. 13, of a positive refusal to pay one debt, and an acknowledgment of another, accompanied by the delivery of the sum due upon it, which would be a circumstance as fully evincing the intention of the debtor, to apply the payment to the 

 [*373]  debt acknowledged, as it could be by an express direction, and would have the effect of an express direction to apply it to that debt, and the creditor would be bound so to apply it. But if there be no application of the payment at [**20]  the time, by the debtor, either express or implied, or arising out of the nature of the transaction, the election is thrown upon the creditor, to apply it to which account he pleases.
And in the decision of the case between these parties, as formerly brought before this court, 2 Harr. and Gill, 159, it is laid down to be "the undoubted right of the debtor, to direct the appropriation of any money paid by him, to any debt he may think proper; and although he may not give an express direction at the time of the payment, such direction may be implied from circumstances, but if no application has been made by the debtor, either express or implied, then the creditor may apply it." And speaking of the letter of the 8th of May, 1821, from Lewis & Co. to the plaintiff, the rejection of which, as incompetent testimony, formed one of the grounds of appeal, it is said, "we think the letter was not only legal, but the best evidence for the purpose for which it was offered. It was the direction of the debtor to the creditor, in writing, how this payment was to be applied. It was the creditor's authority for making the application, and after the receipt of this letter, he could not have [**21]  rightfully applied it in any other manner."
The purpose for which it was offered was to show, that the amount specified in the receipt of the 10th of May, 1821, was intended to be applied, in the first instance, to the discharge of the first debt of $ 395 89, which construction of that letter we think is undeniably correct.
The draft by the plaintiff, on Lewis & Co. of the 7th of May, 1821, was for $ 395 89, the exact amount of the first debt of the 25th of October, 1820, and in his letter to them of the 7th of May, 1821, advising them of that draft, he informed him that it was for the amount of their purchase of the 25th October, 1820, and advised them further, that their last purchase, (the debt guarantied by Dall the defendant,) 

 [*374]  was also due. Here then, the two debts were clearly designated, and Lewis & Co. advised that the draft was on the first account, and not on the last, which was guarantied by Dall. With this information before them, they, in their letter of the 8th of May, 1821, tell the plaintiff, that they presume he will be paid the amount of the draft before it becomes due; that they had directed J. P. Austin, to put into the hands of [**22]  Dall, the amount of the first invoice, (the debt of the 25th of October, 1820,) to be paid over by Dall, to him; that they had written to Dall, to that effect; and that they have no doubt J. P. Austin, or Dall, will in a few days call and pay him the amount of his draft; which was as clear a direction to the plaintiff, to apply the money that should be put in Dall's hands by J. P. Austin, and by Dall paid over to him, to the first debt, or that of the 25th of October, 1820, as could well have been given.
And putting the letter from the plaintiff to Lewis & Co., of the 7th of May, 1821, out of the case, if the letter of the 8th of May, 1821, from A. Austin as their agent, was written by their authority, and received by the plaintiff prior to the first payment of $ 400, on the 10th of May, 1821, it was an application by them, binding on the plaintiff, of that payment to the discharge of the draft, and first debt of the 25th of October, 1820, unless, between the date of that letter and the receipt of the payment, he received a subsequent direction, either express or implied, from them, or their authorized agent for that purpose, to make a different [**23]  application of it. And no evidence is perceived in the record showing or tending to show, any such subsequent direction.
Archibald Austin, who as the agent for that purpose, of Lewis & Co. wrote the letter of the 8th May, 1821, directing the application of the money, which was to be handed over by Dall to the plaintiff, no where so much as intimates that either with, or without the authority of Lewis & Co. he ever gave to the plaintiff, any other directions, express or implied. And whatever his own private views, not 

 [*375]  communicated to the plaintiff may have been, his letter disclosing the intention and views of his employers, speaks for itself, and there is not a word of proof in the record, that they ever gave to the plaintiff any other directions in any way. Nor would it seem that there was time sufficient for them to do so, there having been but one intervening day between that on which the letter was written, and that on which the payment was made. And that letter was the last communication between them and the plaintiff, before the payment, of which any evidence was offered.
John P. Austin, who says he knew of no debt due from Lewis & Co. to [**24]  the plaintiff, except that of which Dall was the guaranty, may for that reason have supposed that the money he put into Dall's hands, was intended to be applied to that debt. But there is not a word of proof, that he had any authority whatsoever, to make or direct such an application of it. On the contrary, the only evidence offered of his having had any authority, to place it in the hands of Dall, is the letter of the 8th May, 1821, which explicitly directs the application of it, to the draft and first account. Nor is there a word of evidence that Dall himself, who paid over the money, to the plaintiff, made any application of it, express or implied, to the debt which he had guarantied, or intended to do so. But on the contrary, he paid it "on account" generally, as is expressly proved by the receipt he took, as for money paid by Lewis & Co. through him, showing that, in making the payment he acted as their agent.
And whatever might have been the effect of such a payment by him, with his own money, being a guaranty of one of the debts, yet as it was not made with his own money, but with the money of Lewis & Co. put into his hands for that purpose, the mere [**25]  fact, that it was made through him, is not a circumstance from which any inference can arise, that they intended it should be applied to the debt of which he was the guaranty, or tending to prove such an intention. And there is not perceived to be any evidence in 

 [*376]  the cause, that the plaintiff believed, or had any good reason to believe, that any such intention existed on the part of Lewis & Co. But their letter of the 8th May, 1820, is the only proof of what their intention was; and not only authorized, but required of the plaintiff, to apply the payment alluded to, to the first debt, no matter what might have been the intention of the defendant Dall, when he paid over the money to the plaintiff, or of John P. Austin, from whom he had previously received it. Where there is evidence tending to prove a controverted fact, it should be left to the jury; but we can perceive no evidence here, tending to prove any other application by Lewis & Co. of the first sum of $ 400, that was put into the hands of Dall by John P. Austin, and by him paid over to the plaintiff "on account" on the 10th May, 1821, than that which is contained in that letter.
JUDGMENT [**26]  REVERSED AND PROCEDENDO AWARDED.  

6 of 43 DOCUMENTS 

JOHN R. BERNARD vs. GEO. TORRANCE, Survivor of E. S. BUCHANAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 383; 1833 Md. LEXIS 14 

June, 1833, Decided 

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

This was an action of Assumpsit, instituted by the appellant against the appellee, and E. S. Buchanan (who died pending the suit) on the 30th of June, 1830. Issue was joined upon the plea of non-assumpsit, and errors in pleading on both sides, were waived by agreement.

1. It was proved at the trial, that George Torrance and E. S. Buchanan carried on a large manufactory near Baltimore, through the sole agency of James A. Buchanan. The business was conducted under the style and name of the Warren Factory, by James A. Buchanan, as agent. There was no ostensible change in the manner of conducting it, from 1827 to September, 1830. The plaintiff was a merchant at New York. On the 13th April, 1829, his agent, G. S. Oldfield, offered to sell James A. Buchanan a quantity of Senegal gum at a price which he refused to accept. On the 15th April, Buchanan made a proposal by letter to the plaintiff's agent, Oldfield, at New York, for a quantity of gum, an article used in the manufactory. He wrote to this agent, "at 18 cts. four months, you may forward 10,000 lbs. and if you accept this offer, let me know by return mail, that I may regulate my foreign [**2]  orders." This letter reached New York on the morning of the 17th, on which day at 2 o'clock the mail left New York for Baltimore. Oldfield did not reply to this letter, but communicated its contents to his principal, the plaintiff, who, on the 18th April, shipped 10,892 Ibs. of gum at New York, consigned to his agents, Oldfield, Trull & Co. at Baltimore, with instructions to deliver it to Buchanan. On the 20th April, Buchanan, at the counting room of the Warren Factory, was notified of the shipment, did not dissent to it, and on the 29th April, received the gum, and gave his note, as agent, for the 10,892 lbs. at the price mentioned in his letter of the 13th. This note not being paid, was renewed twice, and the last renewal was exhibited by the plaintiff, at the trial, still unpaid.

The defendant, Torrance, sold out his interest in the Warren Factory, upon the 16th April, to the co-defendant, E. S. Buchanan (who is since dead) and others, for $ 60,000. Notice of his retiring from the Factory, was published in Baltimore, on the 11th May, 1829. The defendant Torrance, held the legal title to the land upon which the factory was erected, and gave a bond of conveyance for it, on the [**3]  20th April, 1829. He had held that title from 20th April, 1824. On the 11th March, 1829, James A. Buchanan lodged the proof of his agency with the President and Directors of the Union Bank, signed by Torrance, and dated 20th September, 1828. J. A. Buchanan, as agent of the Warren Factory, previous to the 13th April, 1829, had had dealings with the plaintiff's agent at New York, to whom he made the proposal for the purchase of the gum. Neither the plaintiff nor his agents knew that Torrance had retired from the Warren Factory.

The object of the action was to recover from Torrance the price of the gum sold and delivered to Buchanan, as agent of the Warren Factory.

At the trial, after the preceding evidence had been in substance given, the defendant proposed to prove by several persons, merchants and creditors of the Warren Factory, and for many years before and after April, 1829, residents in Baltimore, that they did not know that the defendant was at any time interested in said factory, and that they did not believe that it was generally known in the city of Baltimore or elsewhere, that the defendant had been concerned therein. To the admission of which proposed evidence,  [**4]  the plaintiff objected, but the court overruled the objection, and permitted the same to go to the jury: the plaintiff excepted.

The defendant, by his counsel, then prayed the court to instruct the jury, upon the whole case.

1. That if the jury believe, from the evidence, that the interest of the defendant in the Warren Factory, terminated on the 16th April, 1829, and that from that time he ceased to have any concern as a partner in said factory, and that the same was thereafter carried on, not on his account, but on the sole account of other persons, or of some other person, that then the contract, as given in evidence by the plaintiff, for the sale of the gum, upon which the present suit is brought, is not binding upon the defendant, and that then the plaintiff is not entitled to recover in this action; provided the jury also believe, from the evidence, that neither the plaintiff nor his agents, through whom the said contract was made, did know or believe, either when the offer to make said contract was made, or from that time until such contract was consummated, that the defendant was a proprietor of the said Warren Factory.

2. That if the jury find from the evidence,  [**5]  that the defendant ceased to have an interest in the Warren Factory on the 16th April, 1829, and that thereafter the same was carried on by James A. Buchanan, as agent for, and on the sole account, and for the sole benefit of other persons than the defendant; and if the jury also find from the evidence, that neither the plaintiff nor his agents, in making said contract, knew or believed that the defendant was one of the proprietors of said factory; and if they also believe, that the interest of said defendant, as one of the proprietors in said factory, or as concerned therein, was not generally known in the city of Baltimore or elsewhere, that then the contract given in evidence by the plaintiff, and upon which the present action is brought, is not binding upon said defendant, and that the plaintiff is therefore not entitled to recover in this action.

3. That if the jury find from the evidence, that the contract given in evidence by the plaintiff, and upon which he seeks to recover in this action, was made by James A. Buchanan, as agent of the proprietors of the Warren Factory, after the defendant ceased to be one of said proprietors; and if the jury also believe, that neither [**6]  the said plaintiff nor his agents, in making said contract, ever knew or believed, that the defendant was one, or had been one of said proprietors; and if they also believe, that the defendant, having been one of said proprietors, was not generally known in the city of Baltimore or elsewhere, and that said plaintiff did not look, in making said contract, to the responsibility of the defendant, that then said contract is not binding upon said defendant, and that therefore the plaintiff is not entitled to recover in this action.

4. That before the plaintiff is entitled to recover under the prior prayers of the defendant, the jury must believe, that the plaintiff or his agents did, at some time, know that said Torrance was a proprietor of said factory. Which instructions the court accordingly gave. The plaintiff excepted.

The plaintiff and defendant having given the evidence stated in the plaintiff's first bill of exceptions, and which it is agreed shall be taken, and deemed as part of this exception, and the court having given the opinions stated in the plaintiff's first and second exceptions, the plaintiff, by his counsel, prayed the court to instruct the jury.

1. If [**7]  the jury should believe, that on and prior to the 15th April, 1829, Torrance, the defendant, was one of the proprietors of the Warren Factory, and that James A. Buchanan, with the knowledge and consent of defendant, was the acting agent of the said factory, in the purchase of materials therefor, and in the management of its concerns generally, and gave the order of that date to Oldfield, for the purpose of procuring a supply of gum for said factory, and that in consequence of said order, and said Oldfield being the plaintiff's agent, said gum was furnished by the plaintiff, in the ordinary course of business, to Buchanan, who was continued as the agent of the Warren Factory, from September, 1828 to September, 1830, that then the said defendant is responsible for the price of said gum, if the same has not been in fact paid for; although the jury should believe that Torrance retired from said factory, and sold out his interest on the 16th April; and that Buchanan, as agent, gave his note for said gum, which was renewed from time to time, as stated in the evidence, if they should also believe that the plaintiff did not agree to discharge Torrance.

2. That there is no evidence of [**8]  any agreement on the part of the plaintiff, to discharge Torrance.

3. That upon the whole evidence in this cause, the defendant was not a dormant partner of the Warren Factory.

4. That the defendant not being a dormant partner, was bound to give either express or public notice, to exempt himself from liability to the plaintiff, to the extent of ten thousand pounds of gum, if the jury shall believe that it was delivered, as stated in the plaintiff's evidence.

5. That if the jury should believe, that an answer to Buchanan's letter of the 15th April, 1829, apprising him that the plaintiff had accepted his offer to purchase gum, was in fact delivered on the 20th April, 1829, that it was a sufficient answer, and complied with the terms of Buchanan's letter of the 15th April, and bound the defendant.

6. That upon the true construction of Buchanan's letter of the 15th April, 1829, Oldfield, or his principal, the plaintiff, was not confined to communicating the assent to Buchanan's proposition, by letter through the mail, but that the real design and true construction of the letter, was to secure to Buchanan, the knowledge of that assent, at as early a period as the return [**9]  mail from New York, after the receipt of the letter, would bring it to Baltimore.

7. That if the jury should believe that Oldfield received Buchanan's letter of the 15th April, at New York, on the 17th, and that in fact Oldfield's principal, the plaintiff, answered that letter by mail of the 18th April, to Oldfield, Trull & Co. and mailed it in New York on that day, and that said letter reached Baltimore on the 20th April, which was in due course for a letter mailed at New York on the 18th, and the contents thereof were verbally communicated at the counting room of the Warren Factory, in Baltimore, by Bernard's agents, Oldfield, Trull & Co. on the 20th April, 1829, that it is sufficient compliance with Buchanan's proposal to purchase the gum, and constitutes a valid contract of the defendant with the plaintiff, to the extent of ten thousand pounds of gum, or to the extent of the gum actually delivered.

8. That if the jury should believe, that all the transactions given in evidence, relate in fact to the proposal contained in Buchanan's letter of the 15th April, 1829, to Oldfield, of New York, and that Oldfield was in fact the agent of Bernard, and that the gum was delivered [**10]  to Buchanan, as agent for the defendant's previous partner, E. S. Buchanan; that then, under the circumstances of this case, the plaintiff is entitled to recover the value of the gum actually delivered, and not in fact paid for.

9. That if the jury believe, that when the plaintiff shipped the gum at New York, he was induced to make the said shipment in consequence of the letter of the 15th April, 1829, by James A. Buchanan, and had no knowledge that on the 16th April, 1829, James A. Buchanan's agency for Torrance had ceased; and that neither Torrance, the other partner of E. S. Buchanan, nor James A. Buchanan, informed him or his agents, Oldfield, Trull & Co. of the change of the proprietors of the Warren Factory, then the plaintiff is entitled to recover the price of the gum actually delivered, or the quantity of 10,000 lbs.

10. If the jury believe, that in fact, no injury was done to James A. Buchanan, or the business he was then carrying on as the agent of the Warren Factory, by the omission, if any, on the part of the plaintiff to answer the letter of James A. Buchanan, of the 15th April, 1829, by return mail, and that in fact, on the 17th April, the day on which the [**11]  letter of the 15th April was received, the gum was shipped at New York, and immediately transmitted and delivered to Oldfield, Trull & Co. and that on the 18th day of April, 1829, the plaintiff wrote a letter to Oldfield, Trull & Co. which was received in Baltimore by them, on the 20th April, and immediately communicated by Oldfield, Trull & Co. at the counting house of James A. Buchanan, and not dissented from, that then the plaintiff is entitled to recover for 10,000 lbs. of gum, or the quantity actually delivered.

The sixth instruction the court, with the assent of the defendant, gave to the jury, and refused the others. The plaintiff excepted, and the verdict and judgment being against him, he brought the record by appeal to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

T and B were partners carrying on business in Baltimore, under the name of the Warren Factory. The business was conducted exclusively by a general agent for the partnership, who on the 15th April, wrote to O in New York, as follows: "at 18 cts. four months, you may forward 10,000 lbs. of gum, and if you accept this offer, let me know by return mail that I may regulate my foreign orders." On the 16th, T retired from this partnership. HELD, That the true construction of this offer is, that unless the agent received the notification of its acceptance by return mail, or by some other mode of conveyance equally as speedy, it was not to be considered as a binding offer; that if the offer in this respect was not complied with, T, the retiring partner, was not bound by it, and that this was a fact exclusively for the consideration of the jury.

To constitute the offer of an agent, the contract of his principal, it must have been accepted according to its terms, and whether it was so accepted, is a question of fact for the jury.

Where the proposal of an authorized agent to purchase merchandise is accepted, and substantially complied with, by the vendor, his principal is bound, though between the offer and the acceptance, the principal revokes his authority; and this is so, whether the principal is known to the other party or not.

Principals when discovered are ordinarily liable for the contracts of their agents.

A principal authorizing an agent to make an offer cannot withdraw to the prejudice of him to whom the offer is made; the liability after the offer is made must continue, if it be accepted; for it is the principal's own offer, though made though an agent. The acceptance must be according to the terms of the offer.

After an agent's power has been revoked, he has no authority to enter into new negotiations, and of course cannot then dispense with conditions attached to proposals previously made by him, so as to bind his principal. Any new stipulation or dispensation with previously offered stipulations, would make the agreement, not the acceptance of the one offered, but a new agreement.

Where an agent proposed to purchase 10,000 lbs. of gum, and directed the vendor to forward it to him, the fact that the vendor consigned the gum to his own correspondent, with directions to deliver it upon arrival, or that he shipped more gum than was ordered, which larger quantity was accepted on its arrival by the agent, who gave his note therefor, cannot be considered as making a new contract, as to the 10,000 lbs. between the agent and vendor at the time of its actual delivery, nor as a variation from the design of the original agreement.

A retiring partner may be discharged from the debts of the partnership, by the acceptance by the creditor of new notes of the other partners, as renewals of the notes first given, provided the vendor agreed to discharge him by the acceptance of such new notes; which is a question for the jury--but where the new notes corresponded entirely with those first given, as where they were all signed by, I as agent, and the creditor was ignorant of any change in the partnership, no agreement to discharge can be inferred.

Where a retiring partner does not give notice of his withdrawal, he remains responsible to those who knew he had been a partner, who are ignorant of his withdrawal, and give credit to those who afterwards carry on business in the partnership name.

Evidence that it was not generally known in the place where a certain partnership was carried on, that T was a partner, is admissible to the jury, where the inquiry is, whether the plaintiff knew that the defendant was a partner in order to make him liable. General evidence that he was known as a partner, is also admissible under such circumstances.  

COUNSEL:
Gill, for the appellant, contended.

1. That the principal cannot countermand the authority of a general agent so suddenly, as to leave parties who were in treaty with the agent before the countermand, to the hazard of consummating their dealings with the agent personally, when they supposed they were dealing with the agent in his representative character.

2. When a principal, who has [**12]  had a general agent employed, wishes to terminate his responsibility for the agent's acts, he should countermand the authority, give express notice of revocation to those who had previously trusted his agent, and give public notice to affect those who had not dealt with the agent previously. In the latter case, his responsibility necessarily continues for a reasonable period, to be judged of according to the nature of the agent's previous employment, and the circumstances of each case.

3. That parties who treat with one who had been a general agent, as an agent, in good faith, ignorant of the revocation of his powers, and so soon after the revocation of his powers, that it could not be known, may hold the principal responsible, and that whether the name of the principal be previously known or not. 1 Evans Poth. 42, 43. Sect. 79, 80, 81. Ib. 267. Sec. 447. 2 Livermore on Agency, 308, 310, 193, 195. Chitty on Cont. 58. Munn vs. Commission Company, 15 Johns. Rep. 44, 54.

4. That the sale of the gum in this case, being to Buchanan as agent, and he really being an agent, the vendor has his remedy, as well against those persons for whom Buchanan was actually agent, as those who [**13]  stand in point of law, in the relation of principal to him.

5. Upon the footing of partner, Torrance is responsible.

6. Torrance was not a dormant partner. Mitchell vs. Dall, 2 Harr. and Gill, 171. 3 Esp. Cases, 248. Gow. on Part. 6, 7, 31, 32.

7. A retiring partner is bound to give express notice to previous correspondents; public notice to other persons. Until one act or the other is done, his responsibility for the acts of his partner or his regular agent, in relation to contracts made in the name of the former firm, continues. Watson on Part. ch. 7, 280, 284. Chitty on Con. 79, 80. Gow. 322, 323. Le Roy Bayard & Co. vs. Johnson, 2 Peters' S. C. R. 186, 199. Ketcham & Black vs. Clark, 6 Johns. Rep. 144, 147.

8. The design of these principles is, to protect innocent men against fraud, and their application does not depend upon the creditor's knowledge or belief of a right to proceed against a principal of whose withdrawal he is ignorant, but upon the policy of the law, which places the restrictions contended for, upon the conduct of traders, as the surest means of promoting good faith and frank dealing, and of forcing those who take the chance of gain, to run [**14]  the hazard of loss.

9. Applying these principles to the situation and established relations of Torrance to the Warren Factory and its agent, and to the time and circumstances under which the gum was sold and delivered, it is contended that the judgment of the county court should be reversed.

10. That neither the knowledge and belief of the other creditors of the Warren Factory, nor their belief of the general reputation of who were, or were not, the proprietors of that factory, is competent evidence against the plaintiff, and that the court erred in receiving such proof.

He further contended, that the original contract was not extinguished by the note given by the agent, nor by its renewal. Gow. 200, 201, 202, 331. Glenn vs. Smith, 2 Gill and Johns. 508. Smith vs. Rogers, 17 Johns. Rep. 340.

Johnson for the appellee.

1. There was no contract with the plaintiff, until after the 16th April, 1829, when Torrance ceased to be a partner, or to have any interest in the establishment. Buchanan's letter of the 15th April, containing the terms upon which he was disposed to purchase the property, required an answer by the return mail, and a compliance with that requisition,  [**15]  he contended, was indispensable to fix the re-ponsibility of the defendant, if under other circumstances after Torrance had retired from the concern, and instead of being sent direct to Buchanan, as should have been done, they were consigned to Trull & Co. the agents of the plaintiff. Besides, the quantity sent, exceeded the quantity ordered, by 892 lbs.; the acceptance therefore of the whole amount by Buchanan, constituted a new contract, which was in its nature, entire and indivisible, binding on the parties who were at the time interested in the establishment, but not on the defendant, who had previously parted with his interest. If the defendant is bound by the contract of the 20th, he would be equally bound, no matter how much more might have been sent, than the quantity ordered; and no matter how the terms of the proposition of the 15th might have been changed. If the proposition, with respect to quantity could be altered, and the responsibility of the defendant retained, it might be altered in every other particular, and still he would be liable.

2. The defendant was a dormant partner until 1829, and consequently, whether actual or constructive notice was given, he is not [**16]  bound, Ex parte Hodgkinson, 19 Ves. 295. Evans vs. Drummond, 4 Esp. Rep. 89. Newmarch vs. Clay, et al. 14 East. 239. 3 Stark. Ev. 1080. Carter vs. Whalley, et al. 20 Serg. and Low, 333. If prior to the 16th April, 1829, Torrance was not known as a partner in the factory, either to the plaintiff or his agent, then upon the authority of the case in 20 Serg. and Low. 333, he was not entitled to notice, either actual or constructive. The liability of a dormant partner depends upon the fact of his being a partner, when the contract is made, and not upon any credit given him, because, as he is not known to be a partner, the credit cannot have been given to him. Gow. 333. Mitchell vs. Dall, 2 Harr. and Gill, 171.

3. The defendant was not bound by the acts of Buchanan, considered as his agent. The agency had in fact ceased, and as he was not known to be Buchanan's principal, the plaintiff could not have been deceived. After parting with his interest, Buchanan was not his agent, and could not bind him, Leroy Bayard & Co. vs. Johnson, 2 Peters' S. C. R. 179. 2 Livermore, 310. 1 Evans' Poth. 268, 269. Watson on Part. 280. The evidence offered in the first exception to prove that defendant [**17]  was not known to be a partner, was competent. The plaintiff might have adduced such evidence to show that he was so known, and it would seem to follow, that the reverse might be proved by the defendant. Carter vs. Whalley, et al. 20 Serg. and Low. 333.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*398]  ARCHER, J. delivered the opinion of the court.
The offer to purchase the Gum Senegal, for the value of which this suit was brought, was made by James A. Buchanan, agent for the Warren Factory, on the 15th April, 1829, at a period of time when George Torrance, the defendant, was a partner of E. S. Buchanan, and joint owner with her of the Warren Factory. The defendant and E. S. Buchanan were unknown to the public as the proprietors of the Warren Factory, but its business was transacted by J. A. Buchanan, as the agent. On the 16th April, 1829, the defendant contracted to sell to E. S. Buchanan his interest in the establishment, and ceased from that day to have any interest in the conduct and management of the concern, and it was in fact at no time [**18]  afterwards conducted on his account. On the 13th April, 1829, G. S. Oldfield, who was the agent of the plaintiff, residing in New York, offered to the agent of the Warren Factory to sell the Gum Senegal in question, at a price, which by letter of the 15th April, the agent, James A. Buchanan refused to accept, and he in his turn made the offer above adverted to, by which he proposed to take 10,000 lbs. at 18 cts. 4 months credit, and in the offer, requested it to be forwarded if accepted, and desired to be notified of the acceptance "by the return mail, that he might regulate his foreign orders." This letter was received by G. S. Oldfield in New York, and handed over by him to his principal, the plaintiff, who immediately shipped 10,892 lbs. of gum to Oldfield, Trull 

 [*399]  & Co. on the 18th April, and on the same day forwarded to them a letter apprising them of the sale to Buchanan, and requesting them to deliver it, and take his note for the same at 4 months. This letter was duly received by Oldfield, Trull & Co. on the 20th April, 1829, and on the same day was communicated to James A. Buchanan, and on the arrival of the Gum Senegal [**19]  in Baltimore, it was delivered by Oldfield, Trull & Co. to James A. Buchanan, and by him accepted, and his note taken according to instructions, for the amount of the purchase money. This note, which had been discounted at bank, was not paid at maturity, but was taken up with funds derived from the firm of Oldfield, Bernard & Co. of New York, for Bernard, who was then in Europe; and a new note was given by James A. Buchanan as agent, for the amount, which like the former was unpaid at maturity, and a third note was likewise given, which also was unpaid, and this suit was instituted by the plaintiff to recover the value of the gum. Torrance on the 11th May, 1829, had given notice of his retirement from the concern, in the Gazette, a paper printed in Baltimore, and the plaintiff, who at the commencement of these transactions had resided in New York, was absent on the continent of Europe, when the first note was taken up, and when the two other notes were given. It also appeared in evidence that the agency of Buchanan for the factory, was well known to G. S. Oldfield, the agent of the plaintiff in New York, through whom this [**20]  transaction was negotiated.
If the terms of Buchanan's letter of the 15th April, were substantially complied with by the plaintiff's acceptance, we conceive that the defendant would be liable to the extent of ten thousand pounds of gum, notwithstanding his withdrawal from the concerns of the factory, on the 16th April, whether he be considered solely in the light of a principal in the transaction, or as a joint owner, or partner with E. S. Buchanan in the factory.
In the former case, the agency of James A. Buchanan, for some principals, was well known to the agent of the 

 [*400]  plaintiff, and that in this transaction, he was not trading on his own account. He was styled, "the agent for the Warren Factory," and dealt as such, and credit was given not to the agent, but to the owners and proprietors of that establishment at that time. It is true, the owners were personally unknown, but credit was imparted to them from the character of the establishment, of which they were proprietors, and when discovered, their responsibility for the contracts of their accredited agent was unquestionable. Principals, when discovered, are ordinarily liable for the contracts of their [**21]  agents.
If therefore, this contract had been accepted by the plaintiff, at any time anterior to the defendant's withdrawal from the concerns of the establishment, or at any time before the agency of J. A. Buchanan had been determined, there could have been no doubt entertained, as to the responsibility of the defendant. But as Torrance ceased to have any concern in the factory the day after the offer, and before the contract was consummated, it is supposed, that he could not be made liable. Treating the letter of the plaintiff as an acceptance, the contract with him was certainly not consummated until the 18th April, 1829, for it is the offer on the one side, and acceptance on the other, which constituted the contract. But we apprehend, that under the circumstances which this case presents, it would not be essential to inquire, what was the date of the contract to determine the liabilities of the parties. The material inquiry is, the date of the offer. A principal authorizing an agent to make an offer, cannot withdraw to the prejudice of him to whom the offer is made. On the supposition that an acceptance of the offer has been made, a contrary doctrine would work the grossest [**22]  injustice to the plaintiff. He accepts the offer of one, who is known to be the agent, and ships his goods accordingly, before he could by any possibility know that the principal had put an end to the agency, or withdrawn from the management and concerns of the factory. The contract by which the defendant 

 [*401]  had agreed to dispose of his interest, was a secret transaction between him and E. S. Buchanan, not known, as far as we are left to infer from the evidence, in Baltimore, the neighborhood of the factory, much less in New York, the residence of the plaintiff. The liability after the offer is made, must continue, if it be accepted, for it is the principal's own offer, made it is true through his agent, but on that account, not the less his offer.
But to constitute it the contract of the principal, and make the offer obligatory upon the defendant, it must have been accepted, according to the terms of the offer. James A. Buchanan could have entered into no new negotiations, or stipulation, after the withdrawal of his principal, which could bind the principal; nor could he possess any power after such withdrawal to dispense with any conditions of the offer.  [**23]  Any new stipulation, or dispensation with offered stipulations, would make the agreement not the acceptance of the one offered, but a new agreement; which being made after the defendant's withdrawal, would constitute a new contract, not binding on the defendant, but binding on the principal, of whom Buchanan had then become the agent, and it is therefore supposed that such has been the case here, and we are called upon to say, that the contract in question is, in point of law, a new contract not obligatory upon the defendant.
The communications passing between the parties, which together constitute the contract, ought to receive a reasonable interpretation, and should be examined in that spirit of liberality, with which mercantile contracts ought always to be viewed by courts of justice.
With this principle in view, we will proceed to examine the facts relied upon, to show that there was not a consummation of the offer made, but that a new contract was formed.
We shall for the present, waive the inquiry, as to the period when the acceptance was made, and when notified, and the legal consequences growing out of these acts. These we shall examine in the close of this opinion.  [**24]  

 [*402]  It is supposed, that as the gum was not shipped to J. A. Buchanan at his risk, but instead thereof, was shipped and consigned to Oldfield, Trull & Co. and at the risk of the plaintiff, and that as 10,892 lbs. of gum were forwarded, instead of the quantity for which the offer was made, that these circumstances created a variation in the contract, or rather caused the receipt of the gum by J. A. Buchanan, from Oldfield, Trull & Co. to form a new contract, and that the existence of such new contract is conclusively evidenced by the acceptance by Buchanan, of 10,892 lbs. and giving his note for the entire quantity. In these views, however, we cannot concur. The great object of the agent of the factory, was to procure a given quantity of gum, and if this were attained, it could make no possible difference to him, that instead of being forwarded direct to him, it was consigned to another, with directions to deliver it to him. In either case, according to the intention of the parties, the gum was equally forwarded to him. Nor could the fact, that the gum was transmitted at the risk of the seller, instead of being at the risk of the purchaser, as had been originally [**25]  proposed, give rise to the idea of a new contract. The plaintiff by shipping at his own risk, merely waived a privilege which he had insisted upon for his own benefit, and accepted the offer stripped of that which would have been a burden to the purchaser. He certainly did not, nor could have meant thereby, to have given the purchaser the opportunity and privilege, in consequence of waiving what was a benefit to himself, of refusing the bargain, and repudiating the contract on the arrival of the gum. And there is just as little reason in saying, that because an additional quantity of gum was transmitted and accepted, that there was therefore a new contract entered into when the gum was delivered to J. A. Buchanan. For any quantity taken by Buchanan over and above the 10,000 lbs. there was a new contract, but the letter to Oldfield, Trull & Co. declares the quantity sold to be 10,000 lbs., and Buchanan was not bound to have taken more, and the 10,000 lbs. is 

 [*403]  transmitted with the privilege to Buchanan of purchasing at the same price the additional quantity which was sent; and whether the additional quantity was, or was not taken by Buchanan, the contract [**26]  was complete and obligatory, if in every other respect the offer was complied with, and the principal was bound, and for any surplus which was received and purchased, the then owners of the factory were answerable, and not the defendant. Nor do we conceive, that the delivery to Oldfield, Trull & Co. of the promissory note, for one entire sum, for the purchase money, and their acceptance thereof, could in any manner change the character of the original contract, and make other persons his debtors than those with whom he had contracted. His contract was made for the gum with the former, not the then proprietors, and to make the note operate the effect of shifting the contract from the defendant to the then proprietors of the factory, it ought to be shown, that the plaintiff knew of the ownership of the factory having been changed, which is not only shown, but it would appear that this fact was unknown even in the neighborhood of the establishment.
If indeed, the plaintiff had at any time, agreed to discharge Torrance by accepting the responsibility of James A. Buchanan, or the proprietors of the factory at the time the second and third notes were renewed, the defendant [**27]  could not in this case be answerable; but that is exclusively a question for the jury, and whether he did then agree or not, cannot have any bearing on the question, with whom the original contract was made. The acceptance of the first note, certainly furnishes no evidence of such consent to discharge the defendant, because as has just been stated, the plaintiff did not, nor could know, that any change in the ownership had taken place.
If Torrance and E. S. Buchanan be considered in the light of joint owners or partners, either dormant or otherwise, there exists the same responsibility. They were principals, and although unknown, the credit was given to 

 [*404]  them. It was not given to the agent. His character of agent was known. Nor was it given to the establishment, but to its owners, in virtue of their establishment, who when discovered, were answerable as has been before stated. The only difficulty which could exist, as to their responsibility as partners, must be placed on the ground, that no contract was entered into during the existence of the partnership. But we have seen that the vendor had a right to look to the principal, if the agent made an offer, although [**28]  the agency should have been revoked, or the principal withdrew from the concern before the vendor accepted, and before he could possibly know of the course to be pursued by the principal, and if this be the correct doctrine, the retiring partner would be bound in the same manner, as if he had continued in the firm until the consummation of the contract.
From the preceding views it follows, that the county court were in error in granting all, or any of the defendant's prayers.
Before expressing an opinion upon the judgment of the court below, in their refusal to grant the prayers of the plaintiff, it will be necessary to examine one branch of the offer made by J. A. Buchanan to the plaintiff, which has not heretofore been adverted to, and upon the solution of which, the event of this cause must mainly depend. We advert to that part of the offer, which called upon the plaintiff, if he accepted it, to apprise him of the fact by the return mail, that he might regulate his foreign orders. The construction of this clause, in a mercantile contract of this description can, we think, hardly admit of a doubt. Its importance to the defendant is manifested by the fact, that it constitutes [**29]  a leading feature in the offer; and by the reason which is assigned for the request, and is just as obligatory as if it had constituted an express condition upon which the offer was made. That the defendant sustained no injury, if an answer had not been returned as requested does not meet the question.

 [*405]  The defendant would have a right to say non in haec foedera veni; my offer is not to be considered as a binding offer, unless I get the notification of your acceptance by return mail, or by some other mode of conveyance equally as speedy. This we believe to be the true construction of the offer, and whether or not, this part of the offer was complied with on the part of the plaintiff, is a question exclusively for the consideration of the jury; and if the offer in this respect was not complied with, Torrance having withdrawn before the 18th of April, the day of the acceptance of the offer, any dispensation with this important feature of the original proposition, would make what was subsequently done, a new contract, entered into after the agency had terminated, and of course, Torrance would not in such event be answerable.
Applying the doctrines maintained in [**30]  this opinion, to the various prayers offered by the plaintiff, it will follow, that the court were right in rejecting all the prayers offered by him.
The evidence of various merchants and traders, offered by the defendant, to prove that it was not generally known in Baltimore, or elsewhere, that the defendant was at any time interested in the factory, was, we think, properly admitted. For if it had been generally known in Baltimore, that Torrance was interested in the concern, a knowledge of that fact might have been presumed in the plaintiff; and if the plaintiff had knowledge of this interest, and no knowledge of the withdrawal, the defendant's liability would continue, until he gave notice of his withdrawal. 1 Barn. & Adol. 11. 20 Serg. & Low. 333.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.
DORSEY, J. dissented.  

7 of 43 DOCUMENTS 

GLENN, Trusteee of FAHNESTOCK, vs. CHARLES W. KARTHAUS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 385; 1832 Md. LEXIS 24 

December, 1832, Decided 

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

This was an action of Trover, for sundry articles of merchandize, instituted by the appellant, against the appellee, on the 11th of March, 1830.

Issue was joined upon the plea of not guilty. Upon an admitted statement of facts, the County Court gave judgment for the defendant, when the plaintiff prosecuted the present appeal.

The judge, by whom the opinion of this court was delivered, stated all the material facts of the case as follows:

It appears, by the record before us and the various admissions it contains, that on the 4th of September, 1818, Henry Fahnestock made application to the Baltimore County Court, for the benefit of the insolvent laws of the State, which, according to the provisions of the act of 1816, ch. 221, on the construction of which this cause depends, was referred by that court, to the Commissioners of Insolvent Debtors for City and County of Baltimore. That on the 5th of September, 1818, the defendant was appointed by the commissioners a provisional trustee, and a personal discharge was regularly granted by Baltimore County Court, to the petitioner, Fahnestock. That on the 11th of December, 1818, Isaac [**2]  Burniston and William Scott, were appointed permanent trustees in the room of the defendant, the provisional trustee, but that the petitioner, Fahnestock, failed to obtain a final discharge. That after the defendant was appointed provisional trustee, the petitioner, Fahnestock, died, and the defendant took out letters of administration upon his estate, on the 20th of October, 1829. That Burniston and Scott, the trustees appointed by the commissioners, having neglected to give bond and security, as required by the law, and Burniston having died, and Scott having left the State, and gone to England, the plaintiff, Glenn, was appointed a trustee in their room, by Baltimore County Court, on the 4th of November, 1829, upon the petition of certain creditors of Fahnestock, the petitioning debtor. That the defendant, as provisional trustee, obtained possession of, and sold a quantity of merchandize belonging to Fahnestock, the petitioner, for which this suit was brought, and that before the institution of the suit, the plaintiff duly demanded from the defendant, the property he had received as provisional trustee, which he refused to deliver up.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  [**3]  

HEADNOTES:

On the 4th of September, 1818, F, a resident of the city of Baltimore, applied to the Commissioners of Insolvent Debtors, under the act of 1816, ch. 221, for relief. A provisional trustee was appointed, and the applicant obtained a personal discharge. In December following, two permanent trustees were appointed, who did not give bonds with security. The applicant was reported against by the commissioners, and received no final discharge. Some time after this he died, and the provisional trustee was appointed his administrator. One of the two persons appointed permanent trustees also died, and the other removed from the State. Baltimore County Court, upon application of the creditors in 1829, appointed another permanent trustee, who gave bond with security. HELD, that the appointment was duly made, and that the administrator must deliver the property he received, as provisional trustee, to the permanent trustee.  

COUNSEL:
Frick, for the appellant, contended.

1. Karthaus held the property of the insolvent throughout, as custodiary for the creditors, and the report of the commissioners against the insolvent could not affect the right of the creditors to the property, transferred by the applicant to the provisional trustee.

In other words, the property so transferred by the insolvent to the provisional trustee, could not on an unfavorable report of the Commissioners of Insolvent Debtors, revert to the applicant.

2. This special property or custody of Karthaus, continued until the constitution of a legally qualified permanent trustee, in whom the whole right of property now vests, for the benefit of the creditors of the insolvent.

3. The death of the insolvent, and the administration on his estate by the defendant, cannot change the relation of these parties. The one as provisional, the other as permanent trustee.

He referred in the argument to the acts of 1812, ch. 77, sec. 6. 1808, ch. 71, sec. 4. 1805, ch. 110, sec. 3, 16. Kennedy vs. Boggs, 5 H. and J. 408. Glasgow vs. Sands, 3 Gill and Johns. 96. The act of 1819, ch. 84, sec. 6. 1825, ch. 205, sec. 5. 1822, ch. 102. 1820,  [**4]  ch. 194, secs. 1, 2, 5. 6 Harr. and Johns. 383.

Mayer, for the appellee.

1. The appointment by the County Court, of the appellant as trustee, is invalid, the Commissioners of Insolvent Debtors having exclusive jurisdiction over such appointments. Glasgow vs. Sands, 3 Gill and Johns. 96. By the act of 1816, ch. 221, sec. 5, the County Court are only authorised to take cognizance of cases of insolvency, in the event of a favorable report by the commissioners. And by the act of 1819, ch. 84, sec. 6, the commissioners are not authorised to appoint a permanent trustee, after an unfavorable report, a fortiori, they cannot do so after the death of the petitioner.

It is not true, that a debtor is compelled absolutely to divest himself of all interest in his property, as a condition to the court's entertaining his petition for the benefit of the insolvent laws. The mere application of the petitioner, and appointment of a provisional trustee, does not produce this effect under the act of 1816, though the possession of the property is changed; nor can the provisional trustee, institute suits in his own name, to recover any thing due the insolvent. Kennedy vs. Boggs, 5 Harr. and [**5]  Johns. 407. The power of either, the County Court or the commissioners, to appoint a permanent trustee, and the divesting of the insolvent of his property, depends upon the final discharge of the petitioner. Act of 1805, ch. 110, sec. 2, 3, 5, 16. 1808, ch. 71. 1816, ch. 221. 1807, ch. 150, sec. 3. Brown vs. Brice, 2 Harr. and Gill, 27. Act of 1814, ch. 122. 1819, ch. 84, sec. 6. And the insolvent ought not to be divested of his property before he is finally discharged; because as the application for relief under the insolvent laws, is altogether voluntary, the petitioner may, at any time previously thereto, withdraw his application, and his former responsibility to his creditors is at once revived.

Here however, the appointment of a permanent trustee did not take place until after the death of the petitioner, and the appointment of the appellee as his administrator. By the death of the petitioner, the proceedings, upon his petition necessarily ceased.

Johnson, in reply.

The property vests in the trustee, before the final discharge of the insolvent. It precedes, and is the consideration upon which the discharge is granted. By the act of 1808, ch. 71, the insolvent's [**6]  property vests in the trustee, immediately upon his appointment, and qualification, whether the insolvent is discharged or not.

The act of 1816, ch. 221, gives to the commissioners a discretion as to the time of appointing a permanent trustee, which must precede the final discharge, because it is after such appointment that the discharge is granted by the court, on the report of the commissioners. There is nothing in any act of Assembly which countenances the idea, that the property can be divested out of the trustee, by any act of the insolvent after his application. It is not denied, that if after the final discharge is granted, allegations should be filed within two years, and found against the insolvent, that the property would not revert to him, because it had once vested in the trustee; and as the property equally vests, before the final discharge, the consequences must be the same, if for any reason his application for the benefit of the law should be unsuccessful. The law gives authority to the trustee, under the order of the court, at any time after his appointment, to sell the insolvent's property, which necessarily involves the idea of title in him.

2. This case [**7]  occurred prior to the act of 1819, and of course is to be decided exclusively, upon the previous legislation. The act of 1816, declares, that all previous laws, upon the subject of insolvency, not inconsistent with it, remain in full force, and as before the act of 1816, the County Court had authority to appoint trustees, the question is, is that authority inconsistent with the act of 1816. It is conceded, that the court is not deprived of the power, when the report of the commissioners is favorable. By the 2d section of the act of 1816, the application for the benefit of the law is be made to the County Court, and the final action upon all applications is by it. That court never loses its control over these cases, from their commencement to their termination. If the construction on the other side is sound, then prior to the act of 1819, there was no authority to appoint a trustee, if the report of the commissioners should be unfavorable. The court could not, according to the argument, because of such report; and the commissioners could not, as is decided in Glasgow vs. Sands; and it would follow of course, that if the debtor acted fraudulently, his property could not be enjoyed by [**8]  his creditors. He contended, that the report of the commissioners, whether favorable, or the reverse, remitted the case to the County Court, for its further action. If favorable, the court, under the act of 1816, is bound to discharge--if not, it exercises a discretion on the subject, that being a power (not incompatible with the act of 1816,) which belonged to the court, in virtue of the previous legislation. The 3d section of the act of 1816, gives the commissioners authority to appoint a trustee in a single case only; and the act of 1819, which confers on them the general power, does not take it from the courts. Their jurisdiction over this subject is concurrent. The commissioners certainly, by the act of 1816, have no power to remove a trustee; though that power is confided to the court by the 4th sec. of the act of 1805; and being a highly beneficial power, and one which it cannot be supposed the legislature intended to abolish altogether, we must conclude, as it was not given to the commissioners by the act of 1816, that it was designed to leave it with the court, under the act of 1805. If the County Court had not the power to remove and appoint a new trustee, the power did not [**9]  exist in Baltimore.

The death of the insolvent can make no difference. The trustee was appointed immediately upon his application, in whom the property vested, for the benefit of his then creditors, and being so vested, his subsequent creditors cannot be supposed to have trusted him upon his faith--and should the trustee, so appointed, fail to qualify, or be removed, the subsequent appointment of another, relates back to the application.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*390]  BUCHANAN, Ch. J., delivered the opinion of the court.
After adverting to the facts before set forth, the judge said, the question is, whether the plaintiff is entitled to recover in this action of trover; which depends upon the construction proper to be given to the insolvent laws.
The act of 1816, for the first time, introduces into the insolvent system, a provision for the appointment of a provisional 

 [*391]  trustee by Commissioners of Insolvent Debtors, appointed for the city and county of Baltimore.
This provisional trustee is always to be appointed, as was done in this case, before a personal discharge [**10]  is granted to the petitioning debtor. He acquires no title to the property of the insolvent by his appointment, but is a mere custodiary, and takes possession of it for the benefit of the creditors; and on the report of the commissioners to the court, or a judge thereof, that he is in possession of all the property of the insolvent debtor, the court or judge grants to such debtor a personal discharge. After which it becomes the duty of the commissioners, having first given the requisite notices, and pursued the directions of the act, to appoint a trustee for the benefit of the creditors, (commonly called a permanent trustee) in whom, under the provisions of the system, all the property of the insolvent debtor in the possession of the provisional trustee, vests.
By the 5th sec. of the act of 1816, the commissioners are required to examine into the nature and circumstances of all such applications, and if it appears that the insolvent debtor has complied with all the terms and conditions of the insolvent laws, and has acted fairly, and bona fide, it is made their duty to report the same to Baltimore County Court, and to return the schedule, and all other proceedings had [**11]  before them, to the office of the clerk of that court; upon which the judges are authorized to grant a final discharge.
It has been urged in argument, that under that act, the appointment of a permanent trustee by the commissioners, had reference to, and was in contemplation of a final discharge, and that if a petitioning debtor failed to obtain a final discharge, the whole proceedings fell to the ground, and it was as if there had been no application, and the property which had vested in the permanent trustee, reverted to the petitioning debtor.
If that were so, Fahnestock, the petitioning debtor in this case, having failed to obtain a final discharge, his property, 

 [*392]  of which the defendant had obtained and held possession, as provisional trustee, ceased to be held by him in that capacity, for the benefit of the creditors; but upon his taking out letters of administration, on the death of Fahnestock, he held it in the character of administrator.
But it is not considered that the appointment of a permanent trustee under that act was made with reference to, and in contemplation of a final discharge, to have effect or not, as the petitioning debtor might or might [**12]  not prove to be successful in his application; but as being perfectly independent of it, being made anterior to the examination and report of the commissioners, upon which the final discharge was granted, and the policy of the law being (to prevent frauds, and in consideration of the personal discharge) to secure the property of the petitioning debtor for the benefit of the creditors, whether finally discharged or not, by causing it to vest for that purpose in the permanent trustee, and that investiture for the benefit of the creditors, in consideration of the relief from the pain of imprisonment by the personal discharge, could not be divested by the subsequent failure of the petitioning debtor to obtain a final discharge. As well may it be said, that where an insolvent debtor is convicted upon allegations filed by his creditors after a final discharge, the property remaining in the hands of the trustee reverts to him, because he is thereby deprived of all benefit of the insolvent laws, there being no difference in effect between the failing to obtain a final discharge, and the being deprived of the benefit of such discharge.
It is affirmed by this court, in Glasgow vs. Sands, 3 G. & J. 96, [**13]  to have been the duty of the commissioners under the act of 1816, first to appoint a provisional, and then a permanent trustee, and after having done so, to examine into the circumstances of the application, and if it should appear that the petitioning debtor had complied with the terms of the insolvent laws, and acted fairly and bona fide, to report, &c. to the court, whereupon the final discharge was authorized to be granted, and that is clearly the 

 [*393]  law; so that, as the permanent trustee was to be appointed before any examination into the conduct of the petitioner, and when the commissioners could not have known what would be the result of their examination, or whether the petitioner would be able to show himself entitled to a favorable report, the appointment could not be considered as being made with reference to a final discharge, upon which its efficacy was to depend; but when a petitioner obtained his personal discharge, and transferred his property, and surrendered up the possession to the provisional trustee, (who was appointed in contemplation of a permanent trustee to be nominated by the creditors,) he parted with all control over it, and ceased to have any [**14]  interest in it, except so far as related to any surplus that might remain after payment of the debts; and the provisional trustee took and held it as a custodiary for the benefit of the creditors, until the appointment and qualification of a permanent trustee, in whom it vested. When, therefore, Fahnestock, the petitioning debtor in this case, obtained his personal discharge, he ceased, rightfully, to have any thing to do with the property in the hands of the defendant, the provisional trustee, whose duty it was to keep and preserve it for the benefit of the creditors, until there should be an appointment and qualification of a permanent trustee; and that custody of it was not affected, either by the failure of Fahnestock to obtain a final discharge, or by his subsequent death; but the defendant continued to hold the property in his character of provisional trustee, notwithstanding he afterwards became the administrator of Fahnestock, the property not having vested in Burniston and Scott, the persons appointed by the commissioners as permanent trustees, they having neglected to give bond and security as required by law.
The only question remaining, therefore, is, whether [**15]  Glenn, the plaintiff, was properly appointed permanent trustee, at the instance of creditors, by Baltimore County Court. The act of 1816 gave no exclusive authority to the commissioners, in such a case, to appoint another trustee; and if the 

 [*394]  power to make such an appointment resided neither in the commissioners, nor the County Court, yet the property did not therefore revert to Fahnestock, but Chancery might have extended its aid to the creditors, and have appointed a trustee for their benefit, to take and make a proper disposition of the property.
But we think the Baltimore County Court had full power to make the appointment it did, and that Glenn having given bond and security as required by law, the property vested in him. The act of 1816, giving to the commissioners the power to appoint, first, a provisional, and then a permanent trustee, in relation to the city and county of Baltimore, operated as a repeal of so much of the act of 1805, ch. 110, as gave to the Baltimore County Court the power, in the first instance, to appoint a trustee. But the act of 1816, not giving to the commissioners, on the refusal to act, the death, or neglect,  [**16]  of the permanent trustee appointed by them to give bond, the power to appoint another, or the power to remove for misbehavior such a trustee, and to appoint another in his place, it only took from the County Court the power of appointment in the first instance; and being a part of the same system, to be taken altogether, the appointment by the commissioners took the place of the appointment by the court, leaving the power of the court to substitute another trustee in the place of one before appointed, in either of the events enumerated, the same in relation to an original appointment by the commissioners, that it before possessed in relation to an original appointment made by the court, just as if the act of 1816 had been originally introduced into the act of 1805, as a special provision for the city and county of Baltimore. The judgment of the court below must, therefore, be reversed.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

8 of 43 DOCUMENTS 

HYSINGER vs. T. & P. BALTZELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 158; 1831 Md. LEXIS 7 

June, 1831, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Washington County Court.--Assumpsit by the appellees, Thomas and Philip Baltzell, against the appellant, Christian Hysinger, instituted November 13th, 1826, for goods, wares and merchandize, sold and delivered by the appellees, to the appellant and John Strealey. Non Assumpsit and Limitations were pleaded. A verdict was taken by consent, for the plaintiffs, subject to the opinion of the court, upon the following statement of facts--viz:

"That at the time when the goods in the declaration mentioned were sold and delivered, the plaintiffs were, and still are merchants, residing in Baltimore, and that the defendant resided in Chambersburg, in the State of Pennsylvania, from that time until November, 1824, when he removed to Maryland. It is further admitted, that the said goods were sold and delivered to the defendant, on the 13th of April, 1822, upon a credit of six months. That in the month of December, 1822, the defendant made a payment, in Baltimore, to the plaintiffs, upon another claim, which they had against him. In April, 1823, the defendant purchased other goods from the plaintiffs in Baltimore, for which he paid the cash, and remained there two days. That, at [**2]  that time, the defendant admitted the money, now in question, to be due, and promised to pay it. That the defendant was again in Baltimore, in the summer of 1823, and his being there was known to the plaintiffs. If the court shall be of opinion, that the defendant can, under these circumstances, avail himself of the statute of limitations, then judgment for the defendant, otherwise for the plaintiffs. Either party to be at liberty to appeal, or sue out a writ of error."

The County Court, upon the preceding statement, gave judgment on the verdict for the plaintiffs, and the defendant brought the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the act of Nov'r. 1765, ch. 12, it is declared, that if a person who is liable to an action, shall be out of the province at the time the cause of action hath accrued, he shall have no benefit or advantage from the act of 1715, ch. 23, (the act of Limitations) provided, the person who has such cause of action shall prosecute the same, after the presence, in this province, of the person liable thereto, within the time or times limited, in and by the said act of 1715. HELD, upon the construction of this act:

1. That the acts of 1715, ch. 23, and 1765, ch. 12, are to be taken together, and to receive a construction to carry into effect the plain and obvious intention of the Legislature, that limitations should not attach against a creditor, where the debtor was absent from the State, at the time the cause of action accrued.

2. That if at any time after the cause of action accrued, the debtor, by his presence in the State, afforded the creditor an opportunity to prosecute his writ with effect, he should institute his action within the time required by the act of 1715, or his claim would be barred by limitations.

3. To bring a case within the act of 1765, the presence of the debtor within the State, must be such as to enable the creditor to avail himself of it; a secret, concealed, clandestine presence for any length of time, of which, the creditor could not take advantage, would not be sufficient. It must be so public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence and due means, to arrest the debtor.

Where a cause of action accrued in October, 1822, when the defendant was a resident of another State, and it appeared, upon a case stated, that the defendant was in Baltimore, where the plaintiff resided, in April 1823, "purchased other goods from the plaintiff, and remained there for two days," It was HELD, that limitations did not then attach, because it did not appear at what time during those two days, the defendant made his purchase; nor whether the plaintiff had an opportunity to sue out a writ against him with effect.

Upon a case stated, the court can supply no fact by implication.  

COUNSEL:
Price, for the appellants, contended,

1. There being no replication, the issues are formed, by what is affirmed by the declaration, and denied by the pleas; and that the facts agreed, can be considered only, with a view to the truth or falsehood of the issues, thus formed.

2. Had there been a replication in proper form, stating that the defendant, at the time the cause of action accrued, was absent out of the State, still the facts agreed, were sufficient to entitle the appellant to the judgment of the court below.

He referred to [**3]  the act of 1765, ch. 12, sec. 2, 3.

Mayer, for the appellees.

1. The case stated is a part of the record, and is considered as constituting a part of the pleadings. The statement of facts in this case, shows the ground relied upon to avoid the bar of the statute, and is equivalent to a special replication.

2. The mere circumstance of the presence of the defendant, at the time the cause of action accrued, is not sufficient to entitle him to the benefit of the statute, unless the plaintiff had a reasonable opportunity of suing him with effect, and the case stated should exhibit the fact. He referred to Fowler vs. Hunt, 10 Johns. Rep. 465. White vs. Bailey, 3 Massa. Rep. 271. Acts of 1715, ch. 23. sec. 4, and 1765, ch. 12, sec. 23, and to Oliver vs. Gray, 1 Harr. and Gill, 216.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*160]  MARTIN, J., delivered the opinion of the court.
This was an action of assumpsit instituted to recover the value of certain goods, wares and merchandise, sold and delivered by the plaintiffs, to the defendant and a certain John Strealey. To the declaration filed in this cause, the defendant [**4]  pleaded non assumpsit, and non assumpsit infra tres annos. The record contains no replication to these pleas, although the jury were sworn to try the issues between the parties. This omission, we are induced to believe, proceeded from an agreement, that a mere formal verdict should be taken by consent, subject to the opinion of 

 [*161]  the court upon a case stated. Under the impression, that this agreement was intended by the parties, as a waiver of all irregularity in the pleadings, and that the court should decide upon the law, presented by the case stated, we proceed to review their opinion.
It is admitted, the goods, wares and merchandise were sold and delivered on the 13th of April, 1822, upon a credit of six months; the debt was therefore demandable on the 13th of October, 1822, and if no impediment had interposed, limitations would at tach at that time; this however, was prevented by the absence of the defendant from the State of Maryland. The presence of the defendant in the State, in December, 1822, would not bar the plaintiffs' action, because the defendant, in 1823, admitted the debt and promised to pay it, which acknowledgement revived the original [**5]  cause of action. In April, 1823, the defendant was in Baltimore, remained there two days, was with the plaintiffs, and had dealings with them. He was also in Baltimore in the summer of 1823, and the plaintiffs knew it. If then, limitations attached in April, 1823, or afterwards in the summer of that year, the action would be barred, because more than three years had elapsed, from either of those periods, before the institution of this suit, which was on the 13th of November, 1826.
By the act of 1715, ch. 123, it is enacted, (among other things) that all actions on the case upon simple contract, book debt or account, shall be commenced within three years ensuing the cause of such action, and not after; and by a supplementary act in November, 1765, ch. 12, it is declared, that if a person who is liable to an action, shall be absent out of the province at the time the cause of action hath accrued, he shall have no benefit or advantage from the act of 1715, provided, the person who has such cause of action, shall prosecute the same, after the presence, in this province, of the person liable thereto, within the time or times limited in and by the said act of 1715. These [**6]  acts are to be taken together, and to receive a construction to 

 [*162]  carry into effect the plain and obvious intentions of the Legislature, that limitations should not attach against a creditor, where the debtor was absent from the State at the time the cause of action accrued, because no beneficial result could be expected from the suing out a writ, when the debtor could not be arrested. But this privilege should cease, when the cause upon which it was founded, was removed. If, therefore, the debtor, at any time after the cause of action accrued, by his presence in the State, afforded the creditor an opportunity to prosecute his writ with effect, he should institute an action within the time required by the act of 1715, or his claim would be barred by limitation. To bring the case within the act of 1765, the presence of the debtor in the State, must be such as to enable the creditor to avail himself of it. A secret, concealed, clandestine presence, for any length of time, of which the creditor could not take advantage, would not be sufficient. It must be so public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence, [**7]  and due means, to arrest the debtor.
The court were called on, to apply this law to a statement of facts agreed on by the parties, and they were bound to decide upon those facts, as in the case of a special verdict; they could make no inferences unless they be of law, or such as are clear, undeniable deductions from the statements agreed on. It is competent for a jury to draw inferences from testimony submitted to them; but that power is not extended to a court, when required to act on a case stated, where nothing can be supplied by implication. It is stated the defendant was in Baltimore, in April, 1823, purchased other goods from the plaintiffs, and remained there for two days. The first impression made upon the mind, by these facts, might fairly be, that this afforded the plaintiffs an opportunity to sue out a writ, and arrest the defendant; but when we apply the strict rule of law, that the court must decide upon those facts alone, without deducing any inference from them, or supplying any other fact, to aid them, we will 

 [*163]  find all those stated facts may be true, and yet the plaintiffs were not in default. It might be true the defendant was in Baltimore [**8]  for two days, and that he purchased goods from the plaintiffs, yet if their knowledge of his being there arose solely from the purchase made, and that purchase was made immediately before the defendant left the city, that would not afford them an opportunity to sue out a writ with effect. If it had been stated, that the defendant was in Baltimore for two days, and that the plaintiffs knew he was there for that space of time, laches might be imputed to them; but this is not stated, and the court could not infer it. The same remarks will apply to the presence of the defendant in Baltimore, in the summer of 1823. He was there, and the plaintiffs knew it; non constat, that he was there within the knowledge of the plaintiffs, for so long a time as would have enabled them to have a writ with a reasonable expectation of deriving a beneficial effect from it.
We are, therefore, of opinion, that the court below, being confined to the facts in the case stated, were correct in the judgment they pronounced.
JUDGMENT AFFIRMED.  

9 of 43 DOCUMENTS 

GEORGE KRAFT vs. LEWIS WICKEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 332; 1832 Md. LEXIS 18 

June, 1832, Decided 

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

A petition was filed by the appellee, on the 5th of October, 1829, praying the Orphans Court of Baltimore county to revoke the appellant's appointment, as guardian to the infant children of one Michael Marck, deceased.

After the appellant had answered the petition, the following statement of facts was agreed on.

"It is admitted in this case, that Michael Marck made his last will and testament on the 13th July, 1820, which was duly proved, and recorded in the Orphans Court of Baltimore county, and that he died in the city of Baltimore, previously to the 16th of August, 1820, leaving a personal estate, consisting of money and leasehold property, situate in said city. That Michael Kraft, one of the executors in the will named, took out letters testamentary on said estate on the 19th August, 1820; the other executor named, having renounced the executorship, and that said Michael Kraft, settled his first, and final administration account, on the 5th of September, 1821, in which he obtained a credit for the personal estate, as delivered to Philippina Marck, the widow of the testator. That at the time of said Marck's death,  [**2]  his five children named in his will were living, to wit, Dorothea, Henry, Michael, John, and George, in the city of Baltimore, with their said mother Philippina. That said Philippina with her said children, about the year 1822, removed to the State of Pennsylvania, where she continued to reside up to the time of her death, which happened in June, 1829. That Dorothea, one of the children, died under the age of 14 years, before her said mother, in the State of Pennsylvania, and that the other children, namely, Henry, Michael, John, and George, have ever since the said removal of their mother, resided in the State of Pennsylvania, and yet reside there, and are all under the age of twenty-one years. And also that the said Philippina, before her removal to the State of Pennsylvania, intermarried with the petitioner, Lewis Wickey, who resided with her in the said State, and has ever since continued to reside there. And that the said Wickey was appointed guardian of Henry, Michael, John, and George, children as aforesaid, by the Orphans Court for the county of York, in the State of Pennsylvania: and that on the 17th of August, 1829, the respondent George Kraft, applied to the Orphans Court [**3]  of Baltimore county, and was appointed guardian of said children, by the said court of Baltimore, who were uninformed of the previous appointment, and duly entered into bond with surety approved of by the court, for the performance of his duty, as guardian aforesaid."

It appeared, by the certificate of the clerk of the Orphans Court in Pennsylvania, that the appellee was not required to give security for the performance of the trust confided to him by that court.

The Orphans Court decreed, that the guardianship of the person, and estate, of the said Henry, Michael, John, and George Marck, granted by this court to the said George Kraft, on the 17th of August, 1829, be, and the same is hereby revoked, inasmuch as the said Henry, Michael, John, and George Marck, had a guardian living at that time, who was regularly appointed in York county, State of Pennsylvania, where both the guardian, and the said minors resided, at the time of such appointment.

From this decree the appellant appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

The Orphans Court of the county where letters of administration are granted, have power under the act of 1798, ch. 101, sub-ch. 12, to appoint a guardian to the infant children of an intestate, in all cases.

The legality and regularity of such an appointment, can in no manner be affected by the fact, that a guardian for such children had been appointed by the tribunals of another State.

Guardians like executors and administrators, can only sue in the courts of the country from which they derived their power. They have no extraterritorial authority, qua guardian.

The domestic guardian, having the property, is bound to pay for the maintenance and education of the ward. And the foreign guardian, having the custody of the ward, can enforce the fulfilment of this requisition by an application to the proper tribunal. In such a case the domestic guardian would be regarded as a trustee. This results from the extent of the power granted to our courts, to appoint guardians, viz: in all cases where they grant administration, they may protect the rights of infants interested therein.  

COUNSEL:
Mayer, for the appellant.

The question in this cause is, whether a guardian appointed in another State, is authorised by virtue exclusively of [**4]  such appointment, to act as guardian in this State in respect of property lying here, and under control of our Orphans Courts? The wards in this case lived, at the time of the guardian's appointment in Pennsylvania, the State where he was appointed, and continued to live there when the present cause was instituted in the Orphans Court of Baltimore county. Our testamentary system, 1798, ch. 101, sub-ch. 12, uses terms so general, as necessarily to comprehend the case of wards abroad within the exclusive cognizance and appointing power, as to guardianship, of the Orphans Court, as concerns all property, the administration of which has been taken by such Orphans Court. The property in question in this cause, was administered upon under letters from the Orphans Court of Baltimore county. It is true, that the clause of the testamentary system referred to, uses permissive terms: "shall have power to appoint" guardians; but that phrase is equivalent to "may appoint"--and this latter has been construed as imperative language when used in any statute. Bond and security under our original testamentary system as to guardians, was not required, as of course to be given (see sub-ch. 12, sec. 3,)  [**5]  by any guardian appointed by will, or any natural guardians, such guardians are however, now required by subsequent act to give bond before they can act; and that was always the case with guardians appointed by the court. (4 sec.) In the case before the court, the guardian had not even given bond in Pennsylvania, as the record shows.

Although the law of the domicil of a decedent is allowed to regulate the distribution of his personal estate, as concerns the question, who are the persons to be the distributees; yet that estate is under the protection and cognizance of the forum of the lex rei sitae, and subject to the local regulations as regards the administration and care of it in reference to creditors, and to all ultimately entitled to it. The jurisdiction of the local tribunals once having attached by administration, as in this case, cannot, for the purposes of protection be considered as terminated, until the property be finally delivered to some sui juris proprietor. The subjection of all personal, as well as real estate, to the care of the local legislation and local tribunals, is the foundation of the asserted control over it for creditors, and for all others concerned [**6]  who are not of themselves enabled to take and dispose of it. This power of the local jurisdiction seems to be sanctioned by the decision in 5 Peters' S. C. Rep. 518.

The exclusiveness of the local jurisdiction is the ground of our principle, that a foreign administrator has no rights over personality in our State; and chancellor Kent has considered the case of a foreign guardian, as standing on the same reason--for he has decided 1 (John. Ch. R. 153.) that a guardian appointed in another State, has no power whatsoever in the State where the property lies, or the claim of his ward is to be asserted. In that decision our view is clearly and absolutely sustained; and we rely on it and the cases which are cited there, to show that the Orphans Court here erred. These cases and the general views we have taken, we think, would demonstrate the incorrectness of the court's opinion below; but our act of Assembly referred to, seems to fix the law in our favor, in terms too strict and unequivocal to allow any doubt.

The very existing necessity of applying to the court for the payment of the money to another, instead of the infant, namely, the foreign guardian, while it shows the necessity [**7]  of a judicial act in the matter, also shows the continuing jurisdiction of the court, and its possession of the fund:--and by what rule is the court to govern itself in judging its power to part with the fund, unless it be that which the testamentary act lays down, that act being the exclusive charter of the court's powers? The case then in effect resolves itself into a question of Orphans Court jurisdiction; as it must be allowed that the question of power to part with the fund, subjected to jurisdiction, is as much a point of jurisdiction as the power to take possession of a fund. There is a reason, too, why the control of the Orphans Court, as regulated by our local law, should be prolonged over a fund, where no positive statute intervenes, even after the administration for the benefit of the creditors, has ostensibly been closed. It is, that notwithstanding the close of an administration, and although the residuum has been paid over to the distributee's guardian, a creditor may nevertheless affect that residuum in equity, and oblige the holder to refund, where the creditor happens to have omitted to present his claim within the legal term to the administrator. Where there is an [**8]  adult distributee, the statute, positively, and in terms, requires the payment over--and there consequently, is an express termination put to the court's interference with the fund. Here, however, in case of minors, the right of the court to part with this fund, in this mode, to a foreign guardian, is attempted to be conferred on it merely by construction. Constructive powers are explicitly prohibited to be assumed by the Orphans Courts. (1798, ch. 101, sub-ch. 15, sec. 20.) But I do not merely rely on the constructive character of the authority now sought to be allowed to the Orphans Court--but my present view is further to show, that even looking at our law concerning creditors as regards a personal estate, and the policy of our jurisprudence on that subject. The personal property is not necessarily supposed to pass from the local jurisdiction and local legislation, so soon as the administrator closes his account with the Orphans Court; and that, in fact, some local legislation must be shown to take away the fund from our local courts at that particular period. We show that in the case of adults; and our statute provides for the case of minors, and the property can leave the control [**9]  of the Orphans Court only in this way, and subject to the conditions which our statute law may prescribe; our Orphans Court being the limited creatures of statute. Our statute must therefore be referred to, to learn, who are the guardians to be recognized by the Orphans Court. They are only such as the Orphans Court appoints.

Frick, for the appellee.

In this case it is contended for the appellee, that the Orphans Court of Baltimore county acted correctly in revoking the appintment of appellant, as guardian for the reasons stated in their decree; and that decree is consistent with the meaning and policy of our testamentary system.

It is denied by the appellee, that the terms of the act of 1798, ch. 101, sub-ch. 12, are in words so general, as necessarily to comprehend the case of wards abroad--for, in the 2d sec. of the sub-ch. power is given "to call or have brought before them, any orphans, as aforesaid, for the purpose of appointing a guardian;" and this section certainly cannot contemplate to carry this power into another State.

The whole of this sub-chapter hath reference to the custody of the infant's person, with reference to his maintenance and education [**10]  out of his property; and is part of that curative system which every State, as parens patriae, exercises over its minors and orphans. That duty in this case is incumbent on the State of Pennsylvania, not upon us. On the application of the infants and widow, the appellee has been rightfully constituted guardian of their persons and estates, by and in Pennsylvania, where, it is not an overstrained presumption to suppose, their interests and the bulk of their property are concentrated.

But, conceding that there is property in this State, (although it appears by the record, that the whole of the testator's estate was delivered to the widow, and that she removed to, and died in another State;) and that the court ought to have sustained the claims of the appellant; conceding this, would not his appointment here confer upon him the custody of the infant wards, requiring him to bring them into this State, and thus invite a conflict of jurisdiction with the tribunals of another State, who have delegated that parental authority to the appellee? What is the possession of the property unaccompanied with the custody of the ward? Can such a thing have been in the contemplation of the framers [**11]  of our testamentary acts? Much less the idea of two conflicting claimants contesting, under the authority of independent courts, the right to the possession of the ward. Who, of the two guardians, is responsible for the leading intent of the law, the maintainance and education of the ward? Is it not agnum committere lupis?

It cannot therefore be, that the act of Assembly referred to, ever contemplated to separate the possession of the infant's property from the custody of the infant--and the reasoning, from the rule laid down in the case cited by appellant, (1 Johns. Chancery, 156) "that letters testamentary give no authority abroad," does not apply; because administration has particular reference to the collection and custody of the property alone; and is unlike, in this respect, to guardianship, that takes up that property, together with, and inseparable from the custody of the infant, when the functions of the administrator have ceased.

2dly. Are the Orphan's Court bound to appoint? Are the words of the act imperative to appoint upon any application, whether a case is, or is not, made out to justify the interference of the court? Such a case as brings the infant within [**12]  the limits and under the protection of the State, which is one essential; and having property within the State, which is the other essential? Even in such a case, an infant hath the right reserved at a certain age to name a guardian, (see 1715, ch. 39, sec. 7,) while it appears that the appointment of the appellant, in this case, was without the concurrence or knowledge of the infants, being of sufficient age, and under a mistaken assumption of the court, that the infants resided in this State, and had no legally constituted guardian. The power is certainly so far discretionary, that they are to judge of the case presented to them; and having acted without all the facts of this case before them, they had a right, and they did right, on a full presentation of the case, to revoke the appointment in question. "The Orphans Courts are tribunals confessedly limited in their jurisdiction, unable to exercise any authority whatsoever, not expressly given by law;" and it is a question whether the testamentary laws of this State give to them, or can give to them authority to appoint guardians for the custody of infants, who are not within the limits or the jurisdiction of the State, and who cannot [**13]  be made subject to the control of such guardian, or the powers of the court as contemplated by the second section of sub-chapter 12, of the act of 1799;--and, even if given, it must be viewed as a discretionary power, which they have exercised with sound judgment in its application to this particular case.  

JUDGES:
The cause was submitted on notes to EARLE, MARTIN, STEPHEN, ARCHER, and DORSEY, J.  

OPINIONBY:
ARCHER 

OPINION:

 [*340]  ARCHER, J., delivered the opinion of the court.
Administration on the estate of Michael Marck having been granted in Baltimore county, the Orphans Court of that county had express power conferred upon it to appoint a guardian to his infant children, and the legality, and consequent regularity of this appointment could, in no manner, be affected by the fact, that a guardian for these children had been appointed by the Orphans Court of York county, in the State of Pennsylvania. For the appointment of a guardian granted in a foreign State can have no extra-territorial operation, so as to oust our courts of their jurisdiction over the property of infants.
This appears long to have been the doctrine in England, with regard to executors and administrators, [**14]  who, deriving their powers from foreign tribunals, had not only no power to supersede those appointed to the administration of the estate by the domestic forum, but had not even the power to sue for and recover rights and credits of their testator or intestate.
Chancellor Kent, in 1 Johns. Ch. 156, refused to decree payment of a legacy to a guardian appointed by the courts of Pennsylvania, and declared the necessity of an appointment of a guardian in New York, before the legacy could be paid, and expressed his opinion, that the same rule should govern the case of guardians, as was applicable to executors and administrators.
It is said in Tourtor vs. Thower, 3 P. Wms. 369, that our courts take no notice of what is done in the Spiritual Courts beyond sea. If it be true, that foreign guardians could not, 

 [*341]  qua such, sue in our courts, (and that persons coming in en autre droit, under the appointment of foreign laws, cannot sue, would seem to be settled. 4 Cow. 529, note.) to consider, under such circumstances, the foreign guardian the only person who could rightfully administer his ward's property, would [**15]  be to render such foreign guardian utterly powerless to perform his trusts. For, although the only legal guardian, he could recover nothing.
It seems to us, that the legislature has placed all the personal property of the wards within the limits of the jurisdiction of the Orphans Court granting letters, under the peculiar protection of our laws. It is to be managed and governed by them, and protected by all those rules which have been so carefully prescribed for its preservation. To give a sanction to the foreign appointment of a guardian, in its consequences, would subject it to different rules and regulations never anticipated by the legislature.
Thus our law imperatively requires, that every guardian appointed by the court should give bond with security; whereas, should the guardian in Pennsylvania be entitled, he has given no security.
But it is supposed, that the determination which would give validity to the guardian's appointment, made by our courts, when, at the same time there existed a guardian appointed by a foreign power, would produce a conflict of jurisdictions prejudicial to the interests of the minor. But it cannot be perceived in what manner this result is to [**16]  be produced. The control of the person of the ward being with the foreign jurisdiction, cannot be disturbed by the guardian here; on the other hand, the foreign guardian cannot interfere with the management and control, by the domestic guardian, of the ward's property. It is true, the domestic guardian is bound to pay for the maintenance and education of the ward, and the foreign guardian can always enforce the fulfilment of this requisition by an application to the proper tribunal. The obligation of the domestic guardian, it is scarcely necessary to say, to pay for the 

 [*342]  maintenance and education of the ward, out of the property under his control, is precisely the same whether the ward reside here, or within a foreign jurisdiction. It is true, that in all cases of wards within our jurisdiction, the guardian acts both the part of a tutor and curator, and as such takes custody of the person and property of his ward. But, as the act of 1798 contemplated a guardianship in all cases where the property was administered upon here, there may be cases in which the guardian would only act as a trustee of the property; applying it, to be sure, for the support of the infant, [**17]  without however his having the immediate care and custody of his person. And the case before us appears to be one of that description.
DECREE REVERSED.  

10 of 43 DOCUMENTS 

CITY BANK OF BALTIMORE, et al. vs. JAMES SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 265; 1831 Md. LEXIS 17 

December, 1831, Decided 

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

The present bill was filed by the appellants, the President and Directors of the City Bank of Baltimore, James Sterrett and others, against the appellee, on the 16th day of October, 1827: it stated that James Sterrett, with one Eli Simkins, and John P. Usher, parties complainants, carrying on business under the firm of Simkins and Usher, and Govert Haskins, contracted with the managers of the Washington Monument Lottery, 3d class, for the purchase of the scheme: that the appellees, James Smith and W. H. Clendenin, being indebted to the said James Sterrett, as the treasurer of the contractors, in the sum of $ 13.365, upon a promissory note, dated July 26th, 1817, given for tickets purchased by Smith, in said lottery, and payable fifty days after the completion of the drawing thereof, conveyed to Sterrett by way of mortgage, to secure the payment of the note, a certain house and lot in the city of Baltimore, by deed, bearing date the 28th of July, in the year aforesaid, with a provision, that the same should be void, if Smith should pay to Sterrett the sum of money in the note expressed, according to the terms thereof, either in cash, or prize [**2]  tickets in said lottery, as by a copy of the deed exhibited with the bill, will appear. The bill then states, that the drawing of the lottery was completed on the 12th of December, 1817, and that Smith made various payments, in cash, or prize tickets, on account of the note, and that on the 18th of April, 1820, there remained a balance due thereon, for principal and interest, of about $ 3000: that Sterrett, by deed dated on the 18th of April, 1820, assigned the mortgage for a valuable consideration, to the City Bank of Baltimore; but that Smith, the mortgagor, refused to pay the same, or any part of the money due thereon, to the said City Bank. Prayer, that the mortgaged property be sold to pay the debt, and for general relief.

The answer of Smith admitted the execution of the note and mortgage, as stated in the bill, but denied that the debt therein mentioned was due to Sterrett in his own right, but as trustee for the persons who contracted for the purchase of the scheme of the lottery mentioned in the bill, and charged that defendant purchased of the tickets of said lottery, to the amount of the note referred to, and that the mortgage was given to secure the same, and for no [**3]  other purpose: that he has made many payments, and is also entitled to considerable credits for lottery prizes, which have not yet been allowed him, and that when every thing to which he is entitled shall be credited, nothing will be due upon the aforesaid note: that Eli Simkins, one of the contractors, is largely indebted to defendant, and he is informed, and believes that the contractors made heavy profits by the purchase and sale of said lottery, and he insists that he has a right to set off the proportion of the same, to which said Simkins may be entitled, against the amount due on his said note: that Sterrett, the treasurer of the contractors, has never settled with them for their proportion of the profits of the lottery, but that he has converted the same to his own use, and that the assignment by him to the Bank of this defendant's note and mortgage, was without their knowledge or approbation, and wholly unauthorized and void.

The note referred to in the bill and answer, is in these words: "Baltimore, 26th July, 1817. ($ 13.365.) Fifty days after the drawing of the Washington Monument Lottery, third class, is completed, we, the subscribers, jointly and severally, promise [**4]  to pay to James Sterrett, or order, in cash or prize tickets in said lottery, the sum of thirteen thousand three hundred and sixty-five dollars, for value received."

The assignment by Sterrett to the Bank, dated April 18th, 1820, recites, among other things, "that, whereas there now remains due on said mortgage, the sum of $ 3000, or thereabouts, inclusive of interest; and whereas, in part satisfaction and discharge of a debt due from the said Sterrett to the said Bank, the said Sterrett hath proposed and agreed to execute these presents. Now this indenture "witnesseth, that for and in consideration of the above recited premises, and of the sum of five dollars, lawful money paid, the said Sterrett, &c."

A commission issued, under which depositions were taken and returned.

John S. Gittings, examined on the part of complainants, proved, that there were sundry endorsements on the note of Smith and Clendenin, all of which, down to the 6th of April, were in the hand writing of Sterrett, when a balance of $ 3254 80, was struck; that the subsequent endorsements down to the balance of $ 2847 60, are in deponent's hand writing, he having been a clerk in the City Bank for three [**5]  years, and that the final balance of $ 2747 60 is in the hand writing of said Sterrett. Defendant frequently acknowledged to deponent to owe the balance appearing due at different periods, and when called upon, promised payment.

Govert Haskins, on the part of the defendant, proved, that he was interested in the purchase of the lottery referred to in the bill and answer, and that from information received from Sterrett, he believes it resulted profitably, though he has not received his proportion, nor settled with Sterrett for the same, notwithstanding frequent applications to him for that purpose. Sterrett was a joint contractor and treasurer for the purchasers; the witness also stated, that the note, which the mortgage from defendant to Sterrett was given to secure, was given for a number of tickets which defendant purchased from Sterrett, as the treasurer of the contractors, and that he, the defendant, never authorized Sterrett to assign said note and mortgage.

It was proved on the part of defendant, that Sterrett, Simkins and Haskins, purchased the scheme of the lottery from the managers, and that they paid the purchase money; that they gave bond to the managers for the [**6]  payment of the prizes, which the witness (who was treasurer for the managers) supposes they paid, as the managers had been called on for none.

John B. Morris, on the part of complainants, proved, that in the latter part of the year 1820, the defendant called at the City Bank of Baltimore, and was there for some time in conversation with deponent; that defendant at that time observed he would give a note, provided the Bank would cancel the mortgage; and that in a subsequent conversation, defendant received the proposition to give a note, provided the mortgage was cancelled, which deponent said could be of no use, as the Bank after obtaining judgment on the note, could give indulgence; that it was not until the latter part of the year 1820, that the Bank were apprised that pretensions to an interest in said note, were set up by any one, and that the note had been assigned to the Bank twelve months prior to his conversation with defendant. It was further proved by a witness who was present at the examination of John B. Morris, that at that time, defendant remarked he had offered Morris an endorsed note, for the note which the Bank held secured by the mortgage; that Morris replied,  [**7]  that he might have done so, but it had escaped his recollection. It was proved that the drawing was completed on the 12th December, 1817. The following is a copy of one of the prize tickets, produced by Smith as a set off:

"Washington Monument Lottery, third class. The holder of this ticket will be entitled to such prize as may be drawn to its number, if demanded within twelve months after completion of the drawing, subject to a deduction of fifteen per cent. payable fifty days after conclusion. Baltimore, June, 1816. F. Lucas, Jr. Mr. No. 22,431."

In conformity with an order of the Chancellor, the auditor stated an account between the parties.

No. 1, stated agreeably to the complainants' instructions, showed a balance due them for principal and interest on the 12th June, 1818, of $ 2444 69. In this account the defendant is charged with the amount of his note, and credited for payments in cash and prize tickets, claimed within twelve months after the completion of the drawing, as limited on the face of them, and for a pair of oxen, &c.

No. 2. An account stated in conformity with the defendant's views, credits him for all the prizes, as well for those demanded since,  [**8]  as those demanded before the expiration of twelve months after the drawing of the lottery, and shows that he had over paid the principal of the note by $ 14 80, though a small balance of interest remained due. Many of the prizes credited in account No. 1, as having been demanded within the twelve months, were for small sums, whilst some of those which were rejected on that account, because not presented in time, but credited in account No. 2, are for $ 100, and some $ 500; they were exhibited to the auditor on the 30th of July and 20th October, 1825. To the allowance of these prizes the complainants excepted.

Bland, Chancellor, at September term, 1830, confirmed account No. 2, and decreed that defendant pay to the complainants, or bring into court, to be paid them, the amount therein stated to be due; and that each of the parties pay their, or his respective costs.

From this decree the complainants appealed to the Court of Appeals.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

S gave his note, payable 50 days after the drawing of a lottery should be completed, "in cash, or prize tickets in said lottery," and secured the same by a mortgage. The mortgagee, two years after the drawing, assigned the mortgage. The tickets in the lottery certified that the holder thereof would "be entitled to such prize as may be drawn to its number, if demanded within 12 months after the completion of the drawing, subject to a deduction of 15 per cent. payable 60 days after conclusion." Upon a bill filed some years after the assignment, to sell the mortgaged premises for payment of a balance due upon the note, IT WAS HELD, that prize tickets which had not been presented to the managers of the lottery for payment, within the 12 months, could not be set off against the complainant's claim.

The prize tickets stipulated to be received in payment of the note, were intended to be available tickets, upon which the holders would be entitled to demand and receive, the prizes drawn to their respective numbers. They were those on which the prizes had been demanded within 12 months from the completion of the drawing, or on which the holder was entitled to demand the prizes, 12 months not having elapsed from the time of the drawing.

Equity will relieve against penalties and forfeitures, where the matter lies in compensation, whether the condition on which they depend, be precedent or subsequent. But notwithstanding it will in many cases interpose to prevent the divesting an estate, it will not relieve against the non-performance of a condition precedent to the vesting of an estate, by giving an estate that never vested, and that by reason of the non-performance of a condition precedent, will not vest in law.  

COUNSEL:
John 1. Donaldson, for the appellant, contended,

1. The prize tickets, where the prizes were not demanded within the twelve months, could not be set off against the original parties to the contract: he insisted that [**9]  it was the policy of the lottery system, to limit a time for the presentation of prize tickets, that the whole scheme might be brought to a close within an early period; and it was designed that the prizes should be forfeited, if not demanded within the prescribed time. Barruso vs. Madan, 2 Johns. 145. The presentation within the time, was a condition precedent to a title to the prize, against which equity will not relieve. 1 Chitty's Eq. Dig. 224. 2 Eq. Cases Abrid. 209. Popham vs. Bampfield, 2 Vernon 83. 2. But if they could be set off against the original parties, they cannot be against the assignees after the admission to the agents of the City Bank that the defendant owed the money.--Chambers vs. Goldwin, 9 Ves. 270. Chapman vs. Hart, 1 Ves. Sr. 272. Kemp vs. McPherson, 7 Harr. and Johns. 320.

Johnson and Mayer, for the appellee.

1. The attempt of the Bank to place themselves on higher ground than their assignor, Sterrett, cannot succeed in the present state of the pleadings. The bill does not aver that the Bank was ignorant of the nature of the transaction; on the contrary, it admits a knowledge of it, for it appears manifestly, that the Bank knew that Sterrett held [**10]  the mortgage, as the treasurer and agent of the contractors. When a second incumbrancer, either as plaintiff or defendant, seeks to be relieved from a prior incumbrance, he must allege the ground for such relief in his bill or answer, as the case may be. Brinckerhoff vs. Lansing, 4 Johns. Ch. R. 65, 71. The mortgagee, Sterrett, does not stand in a better condition than his contractors, and they certainly could not deprive Smith of this defence. But the mortgage upon its face, contains constructive notice of the nature of the transaction. The Bank being a purchaser of the note and mortgage, as a security for its payment, were bound to take notice of its character. Sugden Vend. 5 London Ed. 649 to 651. The mortgage refers to the note, as having been given to Sterrett, as the treasurer of the contractors. This, at any rate, was sufficient to put the parties on the inquiry, which amounts to constructive notice. It was not the duty of Smith to go to the Bank, but the Bank was bound, if in doubt as to the character of the transaction, to go to him to make the necessary inquiries, and they were guilty of crassa negligentia in not doing so. 2. Considering then, that the Bank stands in the [**11]  shoes of Sterrett, the question is, whether Smith has not a right to avail himself of the prize tickets, by way of payment or set off? Both the note and mortgage show a contract to pay in cash or prize tickets, and there is nothing in either limiting a time within which the tickets shall be presented. The question is not, what are the rights of the holders of prize tickets, as against the managers of the lottery, though even as against them, the holders would be entitled to be paid as creditors of the lottery fund, if it had not been distributed; the question here is, between the holders of tickets, not presented within the time limited on their face, and the purchasers of the scheme, who have given bond to the managers, securing to them a certain sum of money to accomplish the object of the lottery, which sum has been paid. The object of the lottery then, has been effected, and there can be no reason founded in the supposed policy of the lottery system, why the purchasers of the scheme should not be bound to pay the prizes; if even the avails of the lottery had been divided among the contractors, a question might be raised, as to the rights of the defendant to be allowed for the tickets [**12]  in question, but the evidence shows that this has not been done, but that the whole amount is still in the hands of Sterrett, the treasurer. Smith is not a volunteer, but a purchaser for value, and the moment a ticket held by him came up a prize, in that prize he had a vested interest. The parties responsible for the prizes, are the very persons to whom Smith paid the money for the tickets, and equity, therefore, requires that they should pay. The right to the prizes was a vested and valuable right, subject to be defeated, by lapse of time, at law; it was liable to attachment, bequest, or transfer--it was not suspended for twelve months, but demandable at any time within twelve months. The rule now is, that a court of equity will relieve against a condition unperformed, if the case be such, that compensation can be made, or the parties placed in the same situation, as if the condition had been performed. Moss vs. Matthews, 3 Ves. Jr. 279. Vernon vs. Stephens, 2 P. Wm. 66. Oddy vs. Torlas, 2 Vernon, 362. Cattell vs. Money, 3 Bro. Ch. C. 256. Taylor vs. Popham, 1 Ib. 168. 1 Bac. Abrid. 642. 1 Madd. Ch. P. 41, 42. On the 18th December, 1818, when the twelve months from the completion [**13]  of the drawing had expired, the money to pay the prizes remained in the hands of Sterrett, the treasurer, and it was therefore the same to him, whether the tickets were presented before or afterwards. Justice requires that the prizes should be paid, and when Sterrett, or those claiming through him, ask a court of equity to give them the benefit of the mortgage, they will be compelled to do equity by paying the prizes. The delay in presenting the tickets has not changed Sterrett's situation for the worse. 3. It does not appear that the Bank advanced money to Sterrett, as a consideration for the assignment of the mortgage; it was taken to secure a pre-existing debt due from him, and there is no evidence that the assignees have lost any advantage by the alleged conduct, and promises of Smith to pay the money; this distinguishes it from the case of Kemp vs. McPherson, 7 Harr. and Johns. 337.

Taney, (Att'y Gen'l U. S.) in reply,

1. The set-off relied on by the defendant, could not be used against the managers of the lottery; it consists of prize tickets issued by those managers, and the contract of the holders was with them. The tickets upon the face are payable sixty days after [**14]  the drawing, and are required to be presented within twelve months from its completion. The contractors purchased all the tickets from the managers for a valuable consideration. The defendant's note given for tickets, became due fifty days after the drawing, and consequently ten days before the prizes: the tickets now attempted to be set-off, were not presented until July, 1825, more than seven years after the time limited for their payment. There is no evidence to show when they came to the possession of the defendant, from whom he obtained them, nor is any excuse offered for the delay; the presumption, therefore, is, that he obtained them about the time he exhibited them. This fact is assumed, and then the question is, what equities arise to the defendant, upon supposed rights then acquired? if he asks for an equity derived from a prior possession, it is his duty to prove such possession. The first question, then, is, could these tickets be recovered of the managers? The contract by its terms was conditional. The tickets, the evidence of that contract, were valuable, upon two contingencies; 1st, that they should draw prizes; and 2d, that they should be presented within twelve months.  [**15]  The time of payment and the demand are in separate clauses of the contract; both contingencies are conditions precedent. The demand within the prescribed period, was inserted for the safety of the managers, and benefit of the scheme, because, if no demand was necessary, innumerable suits might be brought, swallowing up the whole profits of the lottery: the demand then, was not a mere formal condition, but of the essence of the contract. If a demand within the twelve months is not material, then the money for the prizes may be demanded, and recovered of the managers now; as the right to sue arises upon demand, limitations would be no bar. Equity cannot relieve against an unperformed condition precedent. 1 Chitty's Dig. 224. 2 Eq. Cas. Abrid. 229. The case referred to, on the other side, from 1 Bac. Abr't. 642, and 2 Vernon, 362, were conditions subsequent; and 1 Madd. Ch. P. 41, 42, shows that equity can only relieve in the case of a condition subsequent, when compensation can be made. Even in cases of forfeiture, if the forfeiture is complete, and the estate vested, equity cannot relieve. 1 Chitt. Dig. 453. If by reason of non-performance the estate has not vested, equity cannot vest;  [**16]  or if by reason of the non-performance of a conditional limitation, the estate has vested in another party, equity will not divest it out of the latter, and vest it in the former. 2. But suppose equity could relieve, in this case of an unperformed condition precedent, this is not a case fit for equitable interposition; the party at all events should be required to come in a reasonable time. A delay of some years is too long; public policy and convenience require that an earlier application should be made. 3. The situation of the contractors is not worse than that of the managers; their rights depend upon the stipulation in the note, and there is nothing in it to show that it was to be paid in other prize tickets than those for which the managers would be responsible. The circumstance of its becoming due ten days before the prizes were payable, shows that it was to create a fund for their payment. Such tickets only, were to be received in payment, as would be equivalent to cash in their settlement with the managers. It cannot be presumed that the contractors meant to assume a larger responsibility than the managers, in reference to the prizes; they were merely bound to indemnify those [**17]  managers, by paying those prizes, and those only, for which they were answerable: but for the terms of the note, prize tickets could not be set-off at all, because the tickets were issued by, and from a contract with the managers, and not the contractors. 4. It is not material whether the Bank had or had not notice, that Sterrett was a trustee for the contractors, because they join in the bill, and pray that the money may be paid the Bank. The material question upon this part of the case is, had the Bank notice that Smith held, and claimed to set-off the tickets, for which he now asks to be credited? If the assignees had no such notice at the time of the assignment, and Smith induced them to believe that the amount stated to be due would be paid, he is not entitled to the set-off. The evidence shows clearly that he did so, and offered to give his note for the amount.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*275]  BUCHANAN, Ch. J., delivered the opinion of the court.
The note given by the defendant to James Sterrett, to secure the payment of which, the mortgage to Sterrett was executed, was for the price of [**18]  a number of tickets in the Washington Monument Lottery, third class, (the scheme of which had been purchased from the managers by Sterrett and others,) and payable by its tenor, in cash or prize tickets in that lottery, fifty days after the drawing should be completed. The drawing of the lottery was completed on the 12th of December, 1817, and the bill being for the fore-closure of the mortgage, (which, on the 18th of April, 1820, was transferred to the complainants, the President, Directors, and Company of the City Bank of Baltimore, in consideration of a debt due from him to them, and a further pecuniary consideration,) and a sale of the mortgaged premises, to satisfy the balance claimed to be due on the note, various payments having been before made by the defendant in cash or prize tickets, the question is, whether the defendant is at this time, entitled to a credit for a number of prize tickets, which were not demanded within twelve months after the completion of the drawing of the lottery?
It can scarcely be doubted, that the prize tickets stipulated to be received in payment of the note, were intended to be available tickets; not such as had lost their validity,  [**19]  but tickets, on which the holder would be entitled to demand and receive the prizes drawn to their respective numbers. None other would be a prize ticket within the 

 [*276]  meaning of the contract; and as it relates to prize tickets in the 3d class of the Washington Monument Lottery, it is proper to inquire what was a prize ticket in that lottery, on which the holder was entitled to receive the prize drawn to its number. That inquiry is gratified by an inspection of the tickets themselves, by each of which, the holder is advised, in the language of the ticket, that he "will be entitled to such prize as may be drawn to its number, if demanded within twelve months after the completion of the drawing." It was not a concealed or hidden purpose, or of doubtful import, but a palpable notice to all the world, by which every purchaser was informed of the terms, on which alone, he could become a successful adventurer. It informed him, that a prize being drawn to the number of his ticket, was not alone sufficient; but that, to entitle himself to such prize, it was necessary he should demand it within twelve months after the completion of the drawing. A prize ticket, therefore, in the [**20]  third class of the Washington Monument Lottery, the holder of which was entitled to the prize drawn to its number, was one, on which the prize had been demanded within twelve months from the completion of the drawing: or one, the holder of which was entitled to demand the prize, twelve months not having elapsed from the time of the drawing. It was a part of the scheme of the lottery, that the prizes not demanded within twelve months should become a part of the fund, which it was the object of the lottery to raise; and the probability that a portion of them would not be demanded, entered into the calculation of the chances. To which scheme, and to the condition plainly expressed upon the face of such ticket, every purchaser gave his assent, by the act of becoming a purchaser.
The time and circumstances attending the claim to a credit for these tickets, are not such as to invite the favorable consideration of the court. The note was given on the 26th of July, 1817, and the mortgage we have seen, was transferred to the President, Directors, and Company of the City Bank of Baltimore, on the 18th of April, 1820, 

 [*277]  more than two years afterwards. Between the date of the [**21]  note and the assignment of the mortgage, various payments were made on the note by the defendant, in cash or prize tickets, leaving a large balance, which, it is proved by John S. Gittings, then acting as the agent of Sterrett, he frequently admitted to him was due, and promised to pay. Here the inquiry forces itself upon us, why, if he then owned, or was in possession of the prize tickets, for which he now claims a credit, and thought himself to be entitled to do so, did he not apply them to the payment of the note, or claim a credit for them, when he was making payment in other prize tickets? They amounted to a large sum, (several thousand dollars,) too large a sum it would seem to have been overlooked or forgotten. And why, with such ready means of payment, did he acknowledge to the agent of Sterrett, that he owed the balance appearing upon the note to be due, and frequently promise to pay it? In the latter end of the year 1820, after the assignment of the mortgage, and when he had a knowledge of that assignment, he at different times, in conversations with John B. Morris, who was acting for the Bank, proposed to give a note for the balance due on the note in question,  [**22]  if the Bank would cancel the mortgage. And it is proved by another witness that he heard him, several times, say to John B. Morris, that he had also offered an endorser. Why did he not then, when negotiating with Morris, for an adjustment of the balance claimed to be due upon the note, instead of offering a new note for that balance with an endorser, offer in payment the prize tickets for which he is now claiming a credit? If he then possessed or owned them, and was entitled to the credit claimed, it is difficult to conceive that he could have forgotten them, or why he did not claim to be allowed for them, when pressed for a settlement of the note; they were prizes, many of them of 20, others of 50, and some of $ 500 each. It was not that he was inattentive to his interest, because he did claim other credits; and if he had the tickets, and supposed he was entitled to it, he ought to have claimed 

 [*278]  this. It was a matter peculiarly within his own knowledge, for the Bank cannot be presumed to have known that he had such tickets in his possession, and it was his duty to have disclosed it, if he intended ever to set them up against the claim upon the note and mortgage, [**23]  or supposed he had a right to do so; and not by concealment to deceive the Bank, at the very moment when he was pressed for payment of the balance claimed upon the note. The original bill for a fore-closure of the mortgage, which was filed in May, 1820, was dismissed for the want of proper parties, on the 21st of December, 1826; but by an agreement appearing in the record, all the proceedings and evidence in that case are to be used in this. In his answer to that bill, the defendant sets up no pretence that the note was satisfied, or that he was entitled to any credit on account of any tickets in his possession. And although testimony was taken under the commission in relation to a few prize tickets which were alleged to have been lost, amounting to something more than $ 78, and for which a credit had been claimed, and also in relation to a pair of oxen, both of which credits are allowed by the auditor in his statement; yet no testimony whatever, was taken, nor claim set up, in relation to those prize tickets, of so much more importance, until July, 1825, when, for the first time, they were exhibited before the auditor, and the amount of the prizes insisted on as a credit against the [**24]  note, more than seven years after the drawing of the lottery, and more than five years after the filing of the bill. During the whole of this time, the defendant was pressed for payment of the balance claimed to be due on the note, and for the greater part of the time, proceedings in Chancery were going on to enforce the payment. From all which, the conclusion is irresistible, that the defendant was not in possession of, nor had any interest in the tickets in question, at any time, before the assignment of the mortgage to the Bank, nor until long after. And he comes into a Court of Chancery with a bad grace, insisting upon a credit for them now, to which, by his proposal to give a note with an endorser, 

 [*279]  for the amount claimed to be due, if the Bank would cancel the mortgage, he virtually admitted he was not at that time entitled, and without showing how, or when, or from whom, he obtained the tickets for which the credit is claimed. By the stipulation in the note of the defendant, that it should be payable in cash or prize tickets, such tickets were meant as would, at the time of payment, entitle the holder to their prizes, which, according to the terms of the condition [**25]  expressed upon the face of each of them, is not the character of the tickets, for which, the defendant now claims a credit against his note, none of them having been demanded within twelve months after the drawing of the lottery; and consequently not being such, as entitle the holder to the prizes drawn to their numbers. And adhering to the express terms of the lottery, if this was a proceeding by James Sterrett and the other purchasers of the scheme, to enforce the payment of the note, the defendant would not be entitled to the credit he claims; the omission by the holders of tickets to demand the prizes in time to entitle themselves to them, being one of the sources of profit, which the purchasers of the scheme had a right, and probably did look to and rely upon, as a part of the scheme of the lottery. In that respect, occupying the position of the original managers, for they purchased the scheme with all its advantages. It was only by the terms of the note, that prize tickets were made receivable at all in payment; for without that stipulation, the defendant would have had no right to pay off his note in prize tickets, and to settle his claim for prizes in that way, but must [**26]  have looked to the original managers for payment of his prizes; and to compel the receipt now, of such as are not available, and do not entitle the holder to demand and receive the prizes from the managers, would not be to oblige the parties to fulfil their engagement, but to coerce them to do what they never contracted to do, what, by the terms and spirit of their engagement, they were under no obligation to do; for their engagement was not to receive in payment, tickets that would not entitle the holder to the prizes 

 [*280]  drawn to their respective numbers; and as to such tickets, it is, as if there was no stipulation to receive prize tickets in payment at all, and the note was payable in cash only. And if the defendant would not be entitled to a credit for those tickets, as against Sterrett and the other purchasers of the scheme, in proceedings by them to foreclose the mortgage, what pretence is there for such an allowance, as against the assignees of the mortgage, who took it more than two years after the drawing of the lottery had been completed; and when the balance claimed on the note was acknowledged by the defendant to be due, and no claim to a credit for those tickets [**27]  had been set up, nor until five years afterwards, though the defendant was pressed for payment, to which he might have applied them at any time within twelve months after the drawing, if he was then in possession of them, of which there is no evidence, but every reason to believe that he did not obtain possession of them for many years after the title of the assignees had accrued. And though the note informed them that it was payable in prize tickets, yet they were also informed by the tickets themselves, that the defendant could not, according to the scheme of the lottery, be in possession of any tickets applicable to that purpose, when they received the assignment of the mortgage; the time having elapsed within which alone the holders of tickets were entitled to demand and receive the prizes drawn to their numbers. They took the assignment of the mortgage, therefore, not only, without notice of any subsisting claim to a credit for these tickets, but with the assurance, looking to the terms of the lottery as proclaimed on the face of each ticket, that there could be no such claim.
But it has been strongly urged, that the assignees of the mortgage took it subject to all the equity [**28]  of the mortgagor as against the mortgagee; and that this being the case of a condition, equity will relieve against the effects of the non-performance of it, by giving to the defendant the benefit of the prizes, though not demanded according to the condition. 

 [*281]  Equity will relieve against penalties and forfeitures, and where the matter lies in compensation, whether the condition be subsequent or precedent; as if it be for the payment of a certain sum of money at a certain day, and the payment at a subsequent day will be a compensation for the non-performance, the intent being to secure the payment of the money. But notwithstanding it will, in many cases, interpose to prevent the divesting an estate, it will not relieve against the non-performance of a condition precedent to the vesting of an estate, by giving an estate that never vested; it will not vest an estate, that by reason of the non-performance of a condition precedent will not vest in law. This is not a case of forfeiture; no right to the prizes for which the credit is claimed, was ever acquired, to be forfeited. Nor is it one in which the matter lies in compensation; for if the defendant is to be relieved against [**29]  the non-performance of the condition, by being allowed a credit for the amount of the prizes drawn to the numbers of those tickets--what is to be the compensation to the assignees of the mortgage, who would thus lose the amount of the prizes so credited? It is not within the principle on which equity will relieve, where a compensation can be made, as where the condition is for the payment of a certain sum of money at a certain day, the breach of which condition may be compensated by payment at a subsequent day. But here the entire loss would rest upon the assignees of the mortgage, without any compensation; and it would be the same, if the proceeding was by the purchasers of the scheme, who by the allowance of the credit here claimed, would be deprived of the benefit of the prizes, without any compensation, to which, by the omission to demand them within twelve months after the completion of the drawing of the lottery, they become entitled, as a part of the profits of the scheme, and of their purchase. Neither is it the case of a condition subsequent; but a demand within twelve months after the completion of the drawing, was a condition precedent to the vesting of the right to the [**30]  prizes, and without the performance 

 [*282]  of which, the right could not vest in law; and equity will not relieve by interposing to vest the right.
We therefore think, that the defendant is not entitled to the credit claimed; and that the decree ought to be reversed with costs; and a decree passed for a foreclosure, and sale of the mortgaged premises, to satisfy the amount due, with interest, according to account No. 1, as stated and reported by the auditor.
DECREE REVERSED.  

11 of 43 DOCUMENTS 

JOSEPH KOLB vs. ANTHONY WHITELY, Trustee of D. TROWBRIDGE and J. TAYLOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 188; 1831 Md. LEXIS 9 

December, 1831, Decided 

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

This was an action of Trover for a quantity of leather, which originated in Baltimore County Court, on the 21st of April, 1829, and was afterwards removed to Harford County Court, upon a suggestion, according to the act of assembly.

The appellee in this court, was the plaintiff in the court below--issue was joined upon the plea of not guilty.

1. At the trial the plaintiff offered to read in evidence to the jury, the records of the proceedings of Baltimore County Court, except certain interrogatories contained therein, upon the applications of Trowbridge and Taylor, dated March 27th, 1829, for the benefit of the insolvent laws, by which it appeared that said Trowbridge and Taylor were discharged by the said court, upon the report of the commissioners of insolvent debtors for the city and county of Baltimore, and that the appellee was appointed their permanent trustee, and gave bond with approved security, as such, on the 4th of April, 1829; for the purpose of proving that the said appellee was the duly appointed permanent trustee of said insolvents, and entitled in that capacity, to sue for their effects and rights. To the competency [**2]  of which evidence for that purpose, the defendant objected, unless the plaintiff first produced an assignment to him from the provisional trustee, mentioned in said proceedings; and unless the said plaintiff also proved, that he was appointed upon the recommendation of a majority in amount of the creditors of the insolvents. But the court [KELL, A. J.] overruled the objections, and permitted the proceedings for the purpose aforesaid, to be read to the jury--the defendant excepted. This exception was abandoned in the argument.

2. The plaintiff then proved that the insolvents were curriers and partners on Cheapside, in the city of Baltimore, before and during the month of March, 1829. That Kolb, the defendant, occupied a warehouse next door to them, and was also a currier, and that the witness a day or two before the 20th of March, 1829, was in the currying shop of Trowbridge and Taylor, and they had therein a stock of leather, which the witness, (who was also a currier) from the appearance of the stock on the shelves, supposed to be worth $ 1200 or $ 1500, and that he was not in the cellar of their store. That on the morning of the 20th of March, the attention of the witness [**3]  was attracted by the circumstance, that at the back door of Trowbridge and Taylor's store, a dray was loading with leather, which was taken out of the cellar of the store, and was of various kinds. The dray was laden in a hurried and unusual manner, calculated to injure the leather, the quantity of which upon the dray, was worth from $ 200 to $ 300, and was taken off, the witness knew not where. That it did not stop at the store occupied by Kolb. That in the course of the same morning, witness was called upon to appraise the value of the leather in Trowbridge and Taylor's shop. That the rent claimed from them was about $ 75, and after including the tools, &c. there was little more leather in the warehouse than was sufficient to pay the landlord's claim. That whilst the appraisement was going on, the defendant came to the warehouse, and wanted the appraisers to value the articles higher than they were appraising them at; and that when the appraisers were proceeding to the upper story to find other property, that on the lower floor not being sufficient, defendant interfered, and claimed to be the owner of the leather up stairs. The appraisers, however, went up stairs, and after they [**4]  had there discharged their duty, they were called down, when defendant paid the landlord, and took the leather at the appraisement, and the key of the warehouse, observing that if T. and T. would refund him the sum he had advanced for the leather, they might have it. That on the same day, Kolb, the defendant, came to the store of witness, when upon being asked if he was a creditor of T. and T., he replied that he was not then a creditor--that he had been satisfied in leather, &c. and had given them up their notes, which amounted to from $ 500 to $ 600. He did not say when he had received the leather. The witness was told by said Kolb, at a subsequent time, that he had received a letter from Whitely, the plaintiff, as trustee of T. and T., requesting him to come up and settle his claim against him. T. and T. were in good credit until one Myers absconded from Baltimore, which was, the witness thought, from eight to ten days before the 20th of March, and then it was generally known that T. and T. were affected by Myers' affairs. The plaintiff proved by another witness, that defendant called on him (the witness) within a day or two after the 20th March, and stated, that the insolvents [**5]  had been indebted to him, but that they had satisfied or paid him, and he invited the witness in his shop to look at some calf skins, which had the appearance of having then been recently moved, not being dry. The plaintiff further proved, that about the time he was appointed trustee, the defendant, in a conversation with another witness, about the affairs of the insolvents, expressed his determination to hold on to the leather he had got from them; which conversation being communicated to plaintiff, he wrote and sent the following letter to defendant: "Mr. Joseph Kolb,--Sir--From the books of Trowbridge and Taylor, I learn that a considerable amount of stock was handed over to you by said T. and T. immediately previous to, or about the time of their application for the benefit of the insolvent laws. It becomes my duty as trustee for the creditors, to seek to recover said stock, as the property belonging to the estate of insolvents. I therefore respectfully notify you to deliver over the said stock and property to me, in order that the same may be fairly distributed amongst the creditors of said insolvents. Yours respectfully, A. Whitely, trustee. April 10, 1829." Which the defendant,  [**6]  upon its being handed to him, opened and looked at, and then threw it into the street, telling the bearer of it, that if the writer was there, he would serve him in the same manner. The plaintiff further proved, that Myers absconded on the 17th of March, 1829, and came back to Baltimore, and was arrested and sent to prison on the night of the 23d of March, and that T. and T. were jointly responsible with him on various notes to a large amount, in the possession of the Mechanics' Bank and others, and that a note on which they were endorsers, was protested on the 19th of March, 1829, and notice given to them on that day. The defendant proved that the insolvents paid a note which became due on the 15th March, 1829, and that Myers' estate divided twenty-five cents in the dollar, and will divide five cents more, and that the plaintiff, as their trustee, had not demanded or received any dividend on the estate of Myers. The plaintiff then proposed to prove, that some few days before the 20th March, 1829, Daniel Trowbridge, of the house of T. and T. informed the witness, that if Myers' creditors came on them, they must stop payment or petition, though they had enough to pay their own debts,  [**7]  and that they were endorsers on Myers' paper to a large amount. The defendant objected to the admissibility of this evidence, for the following reasons. 1. That no declarations of the insolvents, after the alleged delivery of leather by them, are admissible for the plaintiff. 2. That no declarations before the time of delivery of the leather, are admissible for plaintiff. 3. Because the said declarations do not appear to have been made at the time of the said delivery of leather, nor with reference thereto. But the court admitted the said declarations, and instructed the jury, that if the said declarations were made by Trowbridge anterior to the time of delivery to Kolb, (if there was such a delivery,) that then they might consider the same in forming their opinion, whether the said T. and T. at the period of said delivery, delivered the same with a view, or under an expectation of becoming insolvent debtors. The defendant excepted.

3. The plaintiff then proved that the defendant, since the commencement of this suit, said, that he had got leather for his claim against Trowbridge and Taylor--that he had tried to save himself, in doing which, he had done no more than other people [**8]  would do in similar circumstances: and also read in evidence two bills of sale, executed by the respective insolvents, on the 21st of March, 1829, to Reuben Trowbridge, conveying to him a variety of household furniture: and offered to prove, that John Taylor, one of the insolvents, on the date of the execution of the bills of sale, informed the conveyancer, that Reuben Trowbridge had advanced money to them, and that they wished to secure him, in consequence of the situation they were placed in by Myers, and that they would have to petition. To the competency of the bills of sale, and the information derived from said Taylor, the defendant objected. But the court overruled the objection, and permitted the evidence to go to the jury, for the purpose of showing that the insolvents were dispossessing themselves of their property, and for the purpose of enabling the jury to ascertain when T. and T. first had in view, or were under an expectation, of being or becoming insolvent debtors. The defendant excepted.

4. The plaintiffs then, for the sole purpose of showing that the insolvents, on the 19th, 20th, 21st, and 23d of March, 1829, were dispossessing themselves of their property generally,  [**9]  with a view, or under an expectation, of being or becoming insolvent debtors, and to enable the jury to fix the time at which such view or expectation originated, offered to read in evidence certain entries in the day book of the insolvents, which it was admitted were genuine, by which it appeared that at those dates, they transferred to the defendant and others, a large amount of goods, and received payment chiefly in their own paper. To this evidence the defendant objected upon the ground, that the said entries were inadmissible; and also, that they ought not to be read, unless the names of the parties attached to them, and particularly that of Joseph Kolb, should be omitted: but the court permitted the entries to be read for the purpose aforesaid. The defendant excepted, and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where A and B, who were partners in trade, became embarrassed about the 17th March, and on the 27th applied for a discharge under the insolvent laws, and where, as between the permanent trustee of the insolvents and the defendants, the inquiry was, whether a certain transfer of property made by the insolvents, on the 19th, to the defendant, then a creditor, was made with a view, or under an expectation of being or becoming insolvent debtors, it was held, that for the purpose of enabling the jury to find when the intent to seek relief under the insolvent laws originated, declarations of one of the insolvent partners, made a few days before the 20th, that if certain creditors came on them, they must stop payment, or petition--that bills of sale of household furniture executed by them on the 21st, and declarations of one of the insolvents, made at the same time, that the grantee therein (who was not the defendant,) had advanced money to the partners, and they wished to secure him in consequence of the situation they were placed in,--and that entries in the day book of the insolvents, dated the 19th, 20th, 21st and 23d, shewing a delivery of goods and notes to various persons, and among others, to the defendant, were all competent evidence for that object, as surrounding circumstances of the transaction, and a part of the res gestae.

When declarations of persons, not parties, to a suit, constitute a part of the transaction under investigation, they are admitted in evidence to show its character, or the speaker's intention.

In an action by the permanent trustee of an insolvent debtor, under the system for the City and County of Baltimore, it is not necessary to produce an assignment from the provisional trustee to him, of the insolvent's effects, nor to show that a majority of the insolvent's creditors recommended him to the commissioners of insolvent debtors as permanent trustee, to support his right to sue in that character.

PER HARFORD COUNTY COURT.  

COUNSEL:
Krebs, for the appellant, contended, 1. That the declarations of the insolvents, offered in evidence by the plaintiff, were inadmissible; first, because they were interested in the success of plaintiff, as a recovery by him would swell the fund for distribution among their creditors: or, second, they are to be regarded [**10]  as strangers, and their declarations consequently, merely hearsay. For the exceptions to the rule, forbidding the admission of hearsay, as evidence, he cited 1 Philips' Ev. 186, &c. He argued that the insolvents and the appellant, stood to each other in the relation of vendor and vendee. The insolvents are the vendors, and their declarations, made prior to the sale, might be evidence against the vendee, because then they spoke against their interest. Dorsey vs. Dorsey, 3 Harr. and Johns. 410. It is not so, however, in reference to declarations made after the sale. 1 Serg. and Rawle, 526. The declarations of a bankrupt, as to past transactions, which have have been consummated, are not admissible. 1 Saund. Pl. and Ev. 303. 1 Phillips' Ev. 219. 4 Esp. Rep. 233. 1 Ib. 255. 12 Serg. and Rawle, 328. 14 Massa. Rep. 245. 12 Ib. 5 Johns. Rep. 413. He contended also, that the bills of sale, and the entries in the books of the insolvents, were altogether inadmissible. For the purpose of showing that the insolvents were interested in promoting the plaintiff's success, he referred to the act of 1805, ch. 110, sec. 10, by which, a creditor who takes from an insolvent debtor a collusive transfer,  [**11]  forfeits his debt.

Johnson and Gill, for the appellee. The single question is, upon the admissibility of the evidence. That the transfer was made with a view to insolvency, is not made a question. The defendant does not claim title to the property as a purchaser, but as a preferred creditor; and the County Court merely decided, that declarations made by the insolvents, showing that at the time of the transfer, they contemplated becoming insolvent, and designed to give an undue, and improper preference, to the defendant, were evidence. The declarations so made, are certainly evidence to show indebtedness at the time, as would judgments against, or promissory notes given by, the insolvents. If not, then their petition, and record of discharge, would not be evidence for the same purpose. They contended that the rules of evidence, adopted in reference to the bankrupt system of England, were not applicable to our system of insolvency, which contemplates that the acts of the insolvent, previously to his petition, will manifest his design to do so. His acts and declarations, are part of the res gestae. 1 Stark. Ev. 46, 7 sec. 28. Ib. 48, sec. 29. To show that the intention of the insolvent [**12]  might be inferred from his acts and declarations, they cited 5 Harr. and Johns. 97.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*195]  STEPHEN, J. delivered the opinion of the court.
This is an action of Trover, instituted by the appellee, as trustee of Trowbridge and Taylor, to recover from the appellant certain property, transferred by Trowbridge and Taylor to the appellant, who was their creditor at the time they became insolvent. In the course of the trial of the cause, the plaintiff offered in evidence certain declarations of one of the insolvents, a short time prior to the transfer, relative to the pecuniary embarrassments of the firm, and also certain entries in their day-book, for the purpose of showing that they were dispossessing themselves of their property, 

 [*196]  generally, with a view or under an expectation of becoming insolvent debtors, and to enable the jury to ascertain the time, when such view or expectation originated; a part of which entries went to show that they were disposing of large quantities of leather, part of their stock in trade, and of which article they were manufacturers.  [**13]  To the admissibility of these declarations and entries, the defendant, by his counsel objected, but the court overruled the objection and suffered the testimony to be given to the jury; the defendant excepted, and whether or not such testimony was legally admissible for the purpose for which it was offered, is the question, which this court is now called upon to determine. The insolvents applied for the benefit of the insolvent laws on the 27th of March, 1829; on the 20th of March of the same year, the transfer of the leather was made to the defendant, for which this action was brought. (Here the Judge adverted to the bills of exceptions, and then said.) By an act of the General Assembly, passed in 1816, ch. 221, sec. 6, it is enacted, "that all deeds, conveyances, transfers, assignments, or sales of any property, real, personal or mixed, or of any debts, rights or claims, to any creditor or creditors, security or securities, which have been, or shall hereafter be made by any person, with a view or under an expectation of being or becoming an insolvent debtor, and with an intent thereby to give an undue and improper preference to such creditor or creditors, security or securities,  [**14]  shall be absolutely null and void." And it further provides, that such property shall vest in the trustee of the insolvent debtor, as effectually as any property specified in his schedule. To enforce the provisions of this section, and to recover the property transferred, was the object of this suit. It became necessary, therefore, to prove to the jury, that at the time of the transfer and delivery of the property to Kolb, the insolvents contemplated becoming insolvent debtors; and to establish that fact, the entries and declarations were offered in evidence. The rule is well settled, that where the expressions heard, constitute a part of the transaction, 

 [*197]  they are admitted to show its character, or the speaker's intention; as the declarations of a trader on leaving home, to show an act of bankruptcy, 2d Saun. P. and E. 66. Hearsay is often admitted in evidence, as part of the res gestae; the meaning of which seems to be, that where it is necessary, in the course of a cause, to inquire into the nature of a particular act, and the intention of the person who did the act, proof of what the person said at the time of doing it, is admissible evidence for the purpose [**15]  of shewing its true character. Thus, for example, in an action by the assignees of a bankrupt, the bankrupt's declarations, at the time of his absenting himself from home, are properly received in evidence, to show the motives of his absence. In the case of Bateman vs. Bailey, therefore, where the question was, whether the trader's departure from his dwelling house, amounted to an act of bankruptcy, the Court of Kings Bench were of opinion that the reasons which he gave for his absence, after his return home, ought to have been admitted in explanation of his own act. 1st. Philips' Ev. 202. What a bankrupt said at the time of his doing an act, alleged as the act of bankruptcy, is receivable in evidence as being part of the res gestae, and as evincing the intent with which the act was done, 1st Saun. Plea. and Evi. 68. Speaking on the subject of presumptive evidence, Starkie, in his treatise on evidence, 1 vol. 19, says, "The necessity of resorting to presumptive evidence is manifest. It very frequently happens that no direct and positive testimony can be procured; and often when it can be had, it is necessary to try its accuracy and weight, by comparing it with [**16]  the surrounding circumstances;" so (p. 39) he observes, "From what has been said, it seems to follow that all the surrounding facts of a transaction, or as they are usually termed, the res gestae, may be submitted to a jury, provided they can be established by competent means, and afford any fair presumption or inference, as to the question in dispute; for as has been already observed, so frequent is the failure of evidence from accident or design, and so great is the temptation to 

 [*198]  the concealment of truth, and misrepresentation of facts, that no competent means of ascertaining the truth, can or ought to be neglected." "Hence it follows, that facts remote from and irrelevant to the issue between the parties, are inadmissible, for no presumption can safely be drawn from them; and if such evidence does not tend to prejudice and mislead the jury, at least, it unnecessarily consumes the time of the court. The evidence must be confined to the fact or point in issue." When A, the holder of a bill, deposits it with B, as security for the balance of accounts between them, and after it is due, B endorses it to C, in an action by C against A, the account book of B is not evidence [**17]  in diminution of the balance between A and B, but a contemporaneous entry or declaration would have been admissible. 2d Saun. Plead. and Ev. 557. So, "where the party against whom the evidence is offered, was privy to the act, the objection ceases, it is no longer res inter alios. And in general, where the evidence is offered as a mere fact which is connected with the matter in dispute, and not with a view to affect the party, otherwise than as the actual existence of the fact affects the nature of the transaction itself, then, although it was a transaction between others, yet as a mere fact, and part of the res gestae, it is evidence." 1st Starkie, Ev. 52. Here the evidence was offered as a mere fact connected with the matter in dispute, and not with a view to affect the party otherwise, than as the existence of the fact evinced the nature and character of the transaction. The declarations offered in evidence in this case were made by the insolvent immediately, or a few days preceding the transfer in question, and tended directly to prove his contemplated or apprehended insolvency, and the entries showing a disposition of their effects to particular creditors, were [**18]  also facts not remote from, but contemporaneous with, and immediately preceding, and subsequent to, such transfer; they were, therefore, in the language of Starkie, part of the res gestae; nor can such declarations or entries be considered as made from sinister motives, because there was then no 

 [*199]  controversy or lis pendens, in relation to the transfer, and the insolvents had no reasonable motives to misrepresent the truth.
We are, therefore, of opinion in this case, that the court below were right in receiving the declarations and entries as surrounding circumstances of the transaction, and a part of the res gestae, showing the insolvent situation of the parties at the time, and that they contemplated becoming insolvent debtors, in consequence of the derangement of their affairs, and their utter inability to pay their debts.
JUDGMENT AFFIRMED.  

12 of 43 DOCUMENTS 

JOHN GLENN vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 424; 1833 Md. LEXIS 17 

December, 1833, Decided 

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

This is an action of Debt instituted by the appellees against the appellant, January 22d, 1833, to recover the sum of $ 200, in virtue of an ordinance of the 9th of March, 1826; whereby it was "enacted and ordained, that no person or persons should thereafter erect, establish, or rebuild, or carry on in such building within the limits of direct taxation, any distillery of spirits, or turpentine, or varnish, or manufactories either of earthen or stone wares, or slaughter house or houses, or soap, or candle manufactory, under the penalty of $ 200; and a further sum of $ 50 for each and every month thereafter, until the same be removed out of the said limits, or pulled down."

The defendant pleaded nil debet, and issue was joined.

1. At the trial the plaintiff proved that the defendant owned a turpentine distillery within the taxable limits of the city of Baltimore; which on the 16th of December, 1832, was materially injured by fire. The witness proved, that two days after the fire, the examined the premises at the request of the Mayor of the city. He found the north gable end off to the square; the east end wall was about half down; the [**2]  south gable end wall totally down; the front was standing, but partially injured by the fire; the wood work all burned. The body of the still was enclosed in brick, and was not from that circumstance susceptible of injury. Some slight injury was done to the cap, which was repaired, as was also the building, owing to which, and the inclemency of the weather, there was an interval of a month before operations were resumed.

The plaintiff then prayed the court to instruct the jury, that if they believe from the evidence, that the distillery, and messuage of the defendant, mentioned in the pleadings, and the evidence, were so much injured by fire, as to require repairs to the apparatus of the still, or any part of it, before it could be used; and that the building was burned, as is stated in the evidence; and that the defendant rebuilt the house, and repaired the apparatus, and has resumed by himself, his agents, or his tenants, the business of a turpentine distillery in the messuage so rebuilt, before the institution of this action, that then the plaintiffs are entitled to a verdict. Upon this prayer the court instructed the jury as follows. That if they should find from the testimony,  [**3]  that the defendant was the owner of the turpentine distillery mentioned in the declaration, and that the damage done to the building in which it was carried on, whether by fire or otherwise, was so considerable as to put a stop to the further prosecution of the business, whilst it remained in that condition; and that the defendant afterwards restored the said building to its former condition, by repairing the walls, and putting on a new roof, and thereupon resumed the distillery of turpentine or varnish in said building; he has thereby violated the ordinance of the 9th of March, 1826, referred to in the declaration, and is liable to the penalties for which this action is brought, and that the jury must find for the plaintiffs. If on the contrary, the testimony will not support the above, they must find for the defendant.

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

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The act of 1817, ch. 148, so far as regards the power of the Mayor and City Council of Baltimore, to pass ordinances for the prevention and extinguishment of fires, does not extend the previous powers conferred by the original charter of that city upon that subject.

Where an ordinance of the city of Baltimore, does not in terms disclose that it is in the fulfilment of some one of the specific powers granted by the charter of that city, or it is not so connected by its subject matter with the powers conferred, that the court can judicially determine it to be made in the exercise of its chartered privileges; it becomes a question of fact, whether such ordinance was properly passed or not; and the burden of proof is upon the party claiming under it.

So where an ordinance prohibited the carrying on any distillery of spirits of turpentine or varnish, and did not purport to be passed for the prevention of fires, the court HELD, they would not judicially determine whether such prohibition was calculated to prevent danger from fires, but referred it to a jury to determine whether it was in any degree calculated to effect that object.

The ordinance of March, 1826, passed by the corporation of Baltimore, prohibiting the erecting, establishing, or rebuilding of certain factories within the limits of direct taxation in said city, was not intended to interfere with any then existing establishment, nor to prevent its being merely repaired; and where one of such factories was injured by fire, and its business stopped, it becomes a question of fact whether it was rebuilt or repaired. If the destruction was so great as to require the house in which it was carried on to be rebuilt, it must then come within the prohibition.  

COUNSEL:
Meredith and Johnson for the appellant, contended.

1. That the section of the ordinance of the 9th of March, 1826, upon which this action is brought, is not within any of the powers conferred on the corporation [**4]  by the charter, or any supplement thereto, and is therefore void. Act of 1796, ch. 68; 1817, ch. 148, sec. 7; 1797, ch. 54, sec. 2.

2. That according to the true construction of said section, a total demolition of the building erected or established, was intended, and contemplated, and the court below erred in directing the jury, that if the said building was only partially injured by fire or otherwise, so as to put a stop to the carrying on the distillery whilst it remained so injured, the appellant had no right to repair the building, and resume the operations of said distillery.

Scott and Belt, for the appellees.

1. The authority of the corporation to pass the ordinance in question, is fully established by the cases of The Mayor and City Council vs. Barron, survivor of Craig and Koster, decided by this court.

2. The ordinance though penal in its character, being calculated, and intended to promote the general welfare, is entitled to a liberal interpretation. 6 Bac. Abr. Title Statute, 378, &c. Mayor and City Council vs. Moore & Johnson, 6 Harr. and Johns. 380. Dugan vs. Mayor and City Council, 1 Gill and Johns. 499. It is shown by the evidence, that the injury [**5]  was such as to interrupt for a considerable period the operations of the distillery; and it is no answer to say that the injury was confined to the building, as it is impossible to distinguish between the building and the machinery. The establishment consists of both united, and neither without the other could exist within the contemplation of the ordinance.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*427]  ARCHER, J., delivered the opinion of the court.
The instruction given by the court to the jury, and which forms the subject of inquiry, involves the consideration of the ability of the corporation, to prohibit the erection, and establishment of a turpentine distillery, and the rebuilding of a distillery, which had been in operation previous to the passage of the ordinance.

 [*428]  The corporation by its original charter possesses the power to pass by-laws, for the prevention, and extinguishment of fires, and to prevent and remove nuisances, and by the act of 1817, ch. 148, sec. 7, power is conferred upon the corporation in the following words. "The said Mayor and City Council, shall possess [**6]  all power, necessary or proper, for preventing nuisances, preserving order, securing property and persons from violence, danger or destruction, protecting the public, and city property, rights and privileges, from waste or encroachment, and for promoting the great interests, and securing the good government of the city, not repugnant to the rights of the citizen, or inconsistent with the provisions of any act of the General Assembly of this State, or the constitution thereof." Under these various grants the power in question is claimed.
The act of 1817, in its clause above quoted, so far as regards the present question, perhaps does not confer any extended authority, and the power must rest on one of the two grants of power, which were originally given in the charter of 1796; the power to prevent or remove nuisances, and the power to prevent fires. On which of these the claim to impose the penalty in question, is reposed by the city authorities does not appear. The ordinance of the 9th of March, 1826, contains no preamble reciting the existence of such distilleries as a nuisance, or that their establishment, or operation, were calculated to increase the dangers arising from [**7]  fires, nor does the title of the ordinance indicate that it is in the fulfilment of any one specific power. We are therefore, left at large to examine the whole catalogue of powers to ascertain its validity, and we perceive no other grant of power upon which it could be sustained, but one of the two which have been mentioned.
The validity of many ordinances are at once perceived, because they appear upon the face of them to be in the execution of a delegated power. Of this character for example, would be such ordinances as relate to the laying out of new streets, the establishment of night watches, the erection 

 [*429]  of lamps, the providing for the general survey of the city, laws for cleaning and deepening the basin, and many other powers of the like description, which it is unnecessary to enumerate.
But the power to prevent fires, and the power to remove nuisances, are grants of a totally different description, and there may be just, necessary, and proper exercises of these powers, which the court cannot judicially see. Thus, whether the various manufactories spoken of in the 17th section of the ordinance, are calculated to endanger the habitations, or the health of the inhabitants,  [**8]  may be a matter of science, upon which possibly a diversity of views might be entertained, and thus the legitimate exercise of the power might become a mixed question of law, and of fact. The city authorities might pronounce that to be a nuisance, which evidence might show was not a nuisance. They might prohibit a particular occupation upon the ground, that it increased the danger of fire, when the reverse could be shown by the concurring testimony of all men. The power therefore, or the want of power to suppress a particular occupation as a nuisance, or as a means of preventing fire should be shown in the proof.
It is true the corporation have power to pass all laws, which are necessary or proper to carry into effect any given power, and the degree of its necessity or propriety would not be minutely, or critically scrutinized; but the court ought to see that it may be the means of accomplishing the object of the grant. The degree of the necessity would indeed be properly, perhaps, the subject for the judgment of the corporation, but that it contributes in any degree, would be for the determination of the court. Now that the prevention of such occupations, as are under certain circumstances [**9]  prohibited by the ordinances under consideration, would in any degree be a means of preventing fires, or of removing nuisances, must be disclosed by evidence. None is produced, and we therefore think, upon this ground, the court were wrong in their direction to the jury, that if 

 [*430]  they found the facts proven in the bill of exceptions to be true, they must find for the plaintiff.
We also conceive, that the court below erred in the construction which they put upon the 7th clause of the ordinance. That section is in the following words. "Be it enacted and ordained, that no person or persons shall hereafter erect, establish, or rebuild, or carry on in such building, within the limits of direct taxation, any distillery of spirits, or turpentine, or varnish, or manufactories either of earthen ware, or stone ware, or slaughter house or houses, or soap, or candle manufactory, under the penalty of two hundred dollars, and a further sum of fifty dollars for each and every month thereafter, until the same be removed out of said limits, or pulled down.
It was obviously not the intention of the corporation to interfere with any existing establishment, and it might perhaps be well questioned [**10]  whether they could give a retrospective operation to the law. They aimed at the prohibition of any new establishment, and at the rebuilding of any old establishment. The repair of any manufactory of this description was not forbidden, nor could it well be. The stoppage of the distillery might be occasioned by a damage done to the building, and yet that building might only require repair, and not rebuilding. Thus, suppose the roof was so much consumed by fire, that the owner could not with advantage carry on his customary operations, could the reparation amount in legal contemplation to a rebuilding? This would be the mere amendment of the roof, or the putting a new roof on an old building, or in other words, repair, and not rebuilding. The difficulties attending the court's direction, grow out of their not having distinguished between the repair of the distillery, and its being rebuilt. Reparations, and rebuildings, sometimes, so nearly approximate to each other, that it may be said, they are separated by invisible lines, but in general, the distinction between these two words, is obvious to every man's understanding; and although it may sometimes be difficult to mark 

 [*431]   [**11]  the boundaries between them by intelligible definitions, we are inclined to think, that so far as regards the building in question, if its walls were injured, and thrown down to the extent of more than a half, and its roof destroyed, it could not be re-established otherwise than by rebuilding.
But it is supposed, that although the house in which the manufactory was carried on might have been rebuilt, yet as the distillery apparatus only required repair, and that only to the extent of nine-tenths of its value, that therefore the re-erection of the building, and the repair of the apparatus, did not render the proprietor obnoxious to the provisions of the ordinance. Were this construction to prevail, the ordinance might be rendered nearly ineffectual. The still itself is enclosed by a brick wall, and is the most costly part of the structure; and being thus protected, is scarcely susceptible of injury; for we perceive, notwithstanding this destructive fire, it was entirely uninjured. Repair, from time to time, to supply defects from gradual wear and use, might preserve it for an indefinite period, and no matter what injury might be done to the other less expensive part of the apparatus [**12]  more liable to injury, or the walls which enclose the still, or to the building itself, if this construction were to prevail, there could be scarcely any such thing as the rebuilding a distillery.
The distillery in truth, in contemplation of the ordinance, as it is in common parlance, may be said to consist of the external structure, the building itself, and the internal structure, the distillery apparatus. These conjointly constitute the distillery, and any injury which requires the rebuilding of either would be a violation of the ordinance. The erection of a building for the purpose of a distillery would constitute no offence, for it does not assume the character of distillery until the internal apparatus is supplied. But when the internal structure exists in whole, or in part, the erection of a house over it, which is necessary for its more perfect operations, would be clearly within the just construction of the ordinance.

 [*432]  It is true the building itself, and the machinery for distilling may exist separately; and if the proprietor having sustained a partial injury in the machinery, has chosen to risk the success of his manufactory without rebuilding the house which [**13]  enclosed it, or in other words, had chosen to work it in open air, if indeed such an operation were practicable, he might have done so, the corporation not having condemned repairs. But this being admitted to be so, will not affect the question of his liability if he rebuilt the house which encloses it; for such building is ordinarily, nay universally, a portion of such an establishment. Nor can this question be made depend upon the comparative cost of the building, and of the distillery apparatus. Although the house which encloses the machinery, may in cost be inconsiderable when compared with the worth of such machinery, the ordinance looks to the rebuilding of either the one or the other as punishable.
From these views it would follow, that if the plaintiff below had offered evidence, that the establishment of a distillery, like the one in question, was dangerous to the habitations of the citizens by increasing the hazard of fire, or that it was a nuisance, in addition to the evidence which the record contains, he might have subjected the defendant to the penalties of the ordinance.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

13 of 43 DOCUMENTS 

THOMAS & JAMES HUNTER vs. BRYSON, Adm'r c. t. a. of JOHN MACARTNEY, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 483; 1833 Md. LEXIS 22 

December, 1833, Decided 

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

In this case a petition was filed by the appellant, Thomas Hunter, against the appellee, on the 1st of June, 1832, stating that by the last will of John Macartney, Jr., Hugh Thompson, Nathan G. Bryson, the appellee, and Thos. Humes, of Baltimore, were appointed trustees of all his property in America. That Thompson and Humes refused to act, and that letters of administration, c. t. a. on the estate of the testator, were granted Bryson by this court, in which character he had received a large sum of money, for which he has not accounted. That by the will of the testator, the moneys so received and retained by Bryson, are payable to the petitioner, and a certain Andrew Patrick, now deceased, and he prays that the appellee may be decreed to pass an account, and pay the balance in his hands over to the said petitioner.

By the will of Macartney, a copy of which was exhibited with the petition, the petitioner and Andrew Patrick, of Ireland, are appointed trustees and executors; and after directing the payment of a number of legacies in Ireland and America, and among others, one of £  100 to the petitioner, James Hunter, "now gone [**2]  to America," the will proceeds, "and as all the property that I have now willed, is in our firm in Baltimore in America, known by the name or firm of Macartney & Sanders, I therefore nominate and appoint Hugh Thompson, merchant, Nathan G. Bryson, and Thomas Humes, all of Baltimore, in America, trustees of all my property in America, and it is my will, that these trustees that I have nominated and appointed, to do all my said American affairs, shall have full power to act for me, and to settle all my accounts in the way they shall think best; and so soon as they conveniently can, they shall remit said property to my trustees and executors, that I have hereby nominated and appointed in Ireland."

The answer of Bryson, the appellee, denies the right of the petitioner to call him to an account, or to enforce the payment by him of any balance in his hands, as the administrator of Macartney.

Afterwards the parties filed the following agreement:

"It is agreed that the petition heretofore filed by Thomas Hunter, shall be considered as amended by adding James Hunter thereto, as a co-petitioner, for the distribution of the deceased Macartney's effects, according to the just construction [**3]  of his will. That Thompson and Humes renounced all rights under the said will, when the said Bryson was appointed administrator. That Bryson has passed two accounts, the first in 1827. By the last of which there remained in his hands a balance of $ 1350 98, due the estate. That Andrew Patrick named in the will of Macartney, died before the petition was filed in this cause, and after Macartney's death; and that the said Thomas Hunter, when the said petition was filed, and now, resides in the State of Vermont, and that James Hunter, the legatee, resides in Baltimore. It is also agreed, that the answer of Bryson shall be considered as so amended, as to ask of this court to allow him to pay over to himself as trustee, the balance in his hands as administrator, in the same way as if he had filed a petition asking for permission to do so."

The orphans court decreed, that Bryson settle another account, in which he is to receive credit for the balance due on his last account, as paid over to himself as trustee, under the will of the deceased, for the purposes therein mentioned. From this decree, the petitioners appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

Where a testator in Ireland, appointed executors there, and declared that certain persons should be trustees of his property in America, with power and direction to collect and remit the same to his executors in Ireland, such persons are to be considered, not as trustees, but as limited executors, and bound to execute the trust in the mode prescribed by the will under which the authority was derived.

A testator may appoint different executors in different countries in which his effects may lie, or different executors, as to different parts of his estate in the same country.

A testator cannot appoint a trustee of his personal property by his last will, so as to evade the provisions of the testamentary system. Such a trustee cannot act in the first instance without taking out letters testamentary or of administration, and having taken out letters of administration, if the duties imposed upon him by the will, as trustee, are the same which as administrator he is bound by law to perform, he cannot discharge himself as administrator by a payment to himself as trustee.  

COUNSEL:
Gill, for the appellant, contended,  [**4]  

1. That the power conferred upon the American trustees under the will, was a mere agency to collect the deceased's funds, which is void, being in opposition to the design and spirit to of our testamentary laws.

2. That the authority given to the American trustees, was a naked power, given collectively to the three persons named, and that when two of them renounced, the third could not act. Every authority of this description is to be strictly pursued, and when communicated to two jointly, ceases with the death of one. 1 Liv. on Agency, 79. 2 Kent's Com. 495. Bergen vs. Duff, 4 Johns. Ch. Rep. 368. Patterson vs. Leavitt, 4 Conn. Rep. 52, 52.

3. That Bryson having received the estate as administrator, must account to the persons beneficially interested, in that character. To the American legatees directly; to those in Ireland through the petitioner, Thomas Hunter, who represents them.

4. That Bryson having omitted, from 1827 to 1832, to remit these funds, has evinced such a gross neglect of duty as to have forfeited all rights as trustee, even if he had any, and ought not to be permitted now to delay the final settlement of the estate.

To show how the distribution [**5]  should be made, he referred to Dawes vs. Head, 3 Pick. Rep. 128. Ib. 144. Harvey vs. Richards, 1 Mason, 411 to 415. 2 Kent's Com. 344 to 347. Act of 1798, sub-ch. 15, sec. 12. De Sobry vs. De Laistre, 2 Harr. and Johns. 224.

Mayer for the appellees.

This is principally a question of jurisdiction. The will creates a trust which the orphans court is not competent to enforce. The Irish executors are merely executors; but the parties in Baltimore are expressly constituted trustees. The authority and duties of the former are entirely local, and the court of chancery only, could compel them to remit money to a foreign country; whilst by the express terms of the trust, the latter are required to do. An administrator cannot be made to remit money abroad. 1798, sub-ch. 10, sec. 6, 10.

The subject of remitting money abroad depends upon judicial discretion, and the power cannot be exercised by the orphans court, whose jurisdiction is limited and defined by law. Even if Bryson had been named executor in the will, and such powers as were conferred on the trustees in this country had been superadded, they would have made him a trustee, and amenable only to the court of chancery. It [**6]  would not have been within the jurisdiction of the orphans court, to take cognizance of the performance of such powers. Jeremy's Eq. 138. Scurfield vs. Howes, 3 Bro. Ch. C. 91. Southouse vs. Bate, 2 Ves. and Bea. 396. Osgood vs. Franklin, 2 Johns. Ch. Rep. 21. Davour vs. Fanning, Ib. 252. There is a great difference between a mere naked power, and a power coupled with a trust. The Irish executors could not as such recover money from the American administrator. The trust survived to Bryson, though a mere naked power might not. Osgood vs. Franklin, 2 Johns. Ch. Rep. 21. Davour vs. Fanning, Ib. 252. And when the trustees disclaimed, the trust devolved on Bryson alone. Adams vs. Taunton, 5 Mad. Rep. 435. It is impossible to suppose, that the testator designed that all the parties should act collectively, or not at all; as in that event his object would be defeated by the refusal to act, or the death of one, or more of them, an event by no means improbable.

But suppose the trust was in fact defeated by the renunciation of two of the trustees; still as one had been created, the court of chancery alone could appoint another to execute it; or the legatees might at once file their bills [**7]  for their legacies. Ellison vs. Ellison, 6 Ves. 662. Brown vs. Higgs, 8 Ves. 570.

The foreign executors had no right to recover the money from the domestic administrators. Dawes vs. Head, 3 Pick. 128. Harvey vs. Richards, 1 Mason, 413. Ib. 423. Kraft vs. Wickey, 4 Gill and Johns. 332. Morrell vs. Dickey, 1 Johns. Ch. Rep. 156. Smith vs. Union Bank of Georgetown, 5 Peters, 518. Guier vs. O'Daniel, 1 Binney, 349. 2 Mass. Rep. 384. Harvey vs. Richards, 1 Mason, 415. And there is difference between what are called ancillary and principal administrators. Bryan vs. McGee, 2 Wash. C. C. R. 337.

If the persons named in Ireland are to be considered in the character of trustees as well as executors, still they could only fill those characters in Ireland. Their remaining there was a condition annexed to the trust, and one being dead, and the other having moved to this country, their authority has ceased. Coke Lit. 27. 1 Cruise's Dig. 79. 1 Roper on Leg. 521, 522. Ib. 506. The court will look through the will, and if from its whole terms, they think that the trust was imposed because the parties resided in Ireland, they will imply such a condition, and upon their ceasing to reside there,  [**8]  the authority will be revoked. Joining one of the legatees in the present petition makes no difference, because if the executor is entitled to receive the money from the defendant, the legatee is not; and in fact he is to be considered as uniting in the prayer of the petition, that the money may be paid the executor.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*488]  DORSEY, J., delivered the opinion of the court.
In decreeing that Nathan G. Bryson had a right to pay over all the funds in his hands as administrator with the will annexed, to himself as trustee, under the will of the deceased, and that he pass an account accordingly, we think the orphans court were in error. As to all his property and affairs in America, the testator, in most explicit terms, gave to Hugh Thompson, Nathan G. Bryson, and Thomas Humes, the same powers, and imposed on them the same duties, as if by his will he had, in so many words, appointed them his executors. This provision of the will, per se, created them limited executors, and two of them having declined the appointment, and the third accepted it, he is bound [**9]  to execute the trust, in the mode prescribed by the instrument under which he derives his authority.
A testator may appoint different executors, in different countries, in which his effects may lie; or different executors, as to different parts of his estate in the same country. Whether letters testamentary, or of administration cum testamento annexo, have been granted in this case, is a matter wholly immaterial, so far as respects the present controversy. The directions of the will must be complied with; and Nathan G. Bryson, in his representative character, should be decreed to transmit or pay the funds in his hands to the executor in Ireland; or show some satisfactory reason for his being excused from so doing.
But suppose Bryson not to be created executor by the clause in the will, which has been referred to, and that the testator's design was, that the persons appointed should act literally as trustees, without taking out any letters testamentary, or of administration. The appointment is a nullity, 

 [*489]  as far as the personal estate is concerned, being an attempt to evade the provisions of our testamentary system, in a way which the law does not tolerate.  [**10]  
The administrator in relation to the personalty, is ex officio, bound to the execution of every duty, with which it was illegally attempted to clothe the trustees. And the effort to transfer the funds in the manner proposed by the decree, from the hands of Nathan G. Bryson, as administrator, to those of Nathan G. Bryson, as trustee, is giving a construction to the act of the testator, to which no principle of judicial interpretation will lend even a momentary sanction.
The legatee, James Hunter, has assigned no sufficient reasons for his coming into the orphans court, and demanding of Bryson the payment of his legacy. If any special circumstances exist, warranting the interposition of a court of chancery in his behalf, he had better apply to that tribunal for relief.
The decree of the orphans court is reversed, and the record remanded, that such proceedings may be had therein, as the nature of the case may require.
DECREE REVERSED.  

14 of 43 DOCUMENTS 

OWINGS & PIET, use of OWINGS, vs. HENDERSON P. LOW.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 134; 1833 Md. LEXIS 6 

June, 1833, Decided 

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

Action of Assumpsit for goods sold and delivered brought by Owings & Piet vs. Low.

This case was decided by the Court of Appeals at June term, 1826, 7 Harr. and Johns. 124, reversing the judgment of the County Court in favor of the defendant, upon the appeal of the plaintiffs, the present appellants, and sending the case back with a procedendo.

1. Upon the second trial the plaintiffs offered to give in evidence by one Alexander Manro, a competent witness, that during the years 1818, and a part of 1819, he and one John Dukehart, Jr., were clerks in the employ of the plaintiffs, who carried on the hardware business in the city of Baltimore. That during that time various articles of hardware were sold and delivered to defendant. That sometimes the things were delivered by witness to defendant, or his order; sometimes by plaintiffs, or one of them; and sometimes by said Dukehart. That the charges for the same on the day book of plaintiffs, now produced, were at times made by witness, or by one or the other of said persons. That all the things charged by himself he knows were delivered as charged, because he never made such charges without [**2]  delivery. And that it was the constant usage of the said plaintiffs, and Dukehart, never to make entries in the book without a like delivery. That witness, during the whole of the period of the said charges, was constantly in said store of plaintiffs, except when he was at his meals, and at night, after the hours of business; and occasionally out of the store upon other business, which was but seldom. That he knows that in some cases some of said charges were made by one of the plaintiffs, when he, witness, was attending to the delivery of the articles. That when this was the case, the witness called to the said plaintiff, a list of the items delivered, when he, plaintiff, was at the desk, and with the said book before him; but he is not able to particularize the said charges, nor does he know that in such instances he examined, after said charges were made, to see if they were correct, nor can he now tell whether they are correct. In some cases, however, of that sort, there are charges in witness's hand writing on the same day, and immediately preceding or following said charges by plaintiffs, or Dukehart, and he thinks it is probable he may have seen said charges. He is sure he never [**3]  did see any instance of any such charges being made when the goods were not delivered, nor does he know whether or not such charges, or any charges except those in his hand writing, were correctly or incorrectly made; nor has he any recollection of the delivery of any particular article so charged, except his belief arising from the facts before stated, and because he knows the said plaintiffs to have been correct and honest men, who would not make false charges in their books. Whereupon the plaintiffs by their counsel offered to give said evidence of said witness, and all of said charges against defendant, from said day book, as well those in the hand writing of witness, as those in the hand writing of plaintiff, or Dukehart, for the purpose of charging the defendant in this action, with the value of all the said articles charged in said book, during said period to the defendant. To the admissibility of which evidence, (except the evidence of the entries actually made by the witnesses, and as to the goods and amounts, and particulars comprised in such entries,) the defendant objected; which objection the court, (ARCHER, Ch. J.,) sustained. The plaintiffs excepted.

The plaintiffs [**4]  then gave in evidence by the said John Dukehart, Junior, in the plaintiffs' first exception mentioned, that he was a clerk in the employ of the plaintiffs, from October, 1818, to the termination of the partnership of the said plaintiffs, as hereinafter given in evidence by them. That during that time, he knows that at various periods, sundry articles of hardware of the said plaintiffs were delivered either to defendant, or to his order, and charged to defendant's account by his defendant's direction. That sometime in the month of April, in the year 1819, the plaintiffs stopped delivering any more hardware to defendant, when defendant called upon plaintiffs to know the cause, when he was told by them, that they could not deliver any more to him, unless he would pay or settle for the amount then delivered, and he then told plaintiffs, (and offered to do so,) that he would give his note for $ 1000, endorsed by one John Walsh, and Walsh's note for $ 1000, endorsed by defendant; the amount delivered of said hardware up to this time, being estimated or supposed to be $ 2000. That plaintiffs agreed to this, and the notes were then drawn, and for a few days, some other small amount of hardware [**5]  was delivered to defendant, or his order, when defendant informed plaintiffs, that he could not comply with his agreement to give said notes, because said Walsh refused to execute them. The plaintiffs then stopped delivering any more hardware to defendant. The plaintiffs further gave in evidence the following paper, for the purpose of proving a dissolution of said partnership of plaintiffs, and the assignment of all Piet's interest in the property of, and debts due said firm, to James Owings, one of the plaintiffs, and which said paper is admitted to be in the hand writing of John Piet the other plaintiff.

"Baltimore, June 8th, 1820. Received of James Owings, nine hundred and twenty-two dollars and fifty-five cents, in full payment of all my part of the goods, notes and accounts of the firm of Owings and Piet, which I had on concern, which was this day dissolved by mutual consent. John Piet. Witness, John Dukehart, Jr."

And the defendant thereupon offered in evidence, by Ignatius Boarman, that in the latter part of the year 1818, the witness went with a certain John Walsh, to the store of the plaintiffs, in order to obtain hardware for certain houses in Franklin street, in [**6]  the city of Baltimore. That Walsh told the plaintiffs to furnish the said hardware on account of said houses. That Piet, one of the plaintiffs, proceeded to charge the said hardware to the witness, against which the witness objected, and that said Piet then told the witness, that the plaintiffs, in the first instance, charged the hardware got for said houses, against the persons who got the same, and meant when all the houses were finished, to turn it over against the houses, on account of their interest in the said houses. That witness was told by the plaintiffs in conversation, during the copartnership, that they had an interest of three-fourths in the said houses in Franklin street, building by Low, and that Low was to take hardware for that interest. That witness was asked by the plaintiff Owings, what witness thought of his bargain, to take the said interest for hardware, when witness told him he thought it was worth nothing. The defendant further then offered to prove by said Boarman, that after the dissolution of the partnership of said plaintiffs, that plaintiff, Piet, again informed witness, that the plaintiffs had taken an interest of three-fourths of a house, in the houses [**7]  aforesaid, in Franklin street, and that the plaintiffs were to give said Low hardware, for which this suit was brought for the said interest. The plaintiffs gave in evidence, that before said witness was called, the suit had been entered for said Owings' use, but that it was entered on the day when he was called, and that such use was so entered by the order of plaintiff's counsel; to the admissibility of which said latter declaration, as made by said Piet, after said dissolution and assignment of said partnership of plaintiffs, as said dissolution and assignment are proved by the plaintiffs, they objected; but the court (ARCHER, Ch. J.) overruled the objection, and permitted the same to be given in evidence to the Jury.

The plaintiffs excepted, and the verdict and judgment being against them, they prosecuted the present appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action for goods sold and delivered, a clerk of the plaintiff may give evidence of the delivery of goods, by referring to entries in the plaintiff's books made by such clerk, testifying to his belief of their truth at the time of making, them, and proving generally the dealings of the defendant with the plaintiff for such articles as those charged by the clerk; but he cannot establish such a delivery, by reference to entries made by the plaintiff or other clerks, of which he has no knowledge other than that arising from the course of business of the plaintiff's store.

There is no usage in this State which makes the books of accounts of a storekeeper, evidence per se, upon proof that he is a man of integrity.

Pending an action brought by O and P, as partners, for certain hardware sold and delivered, the partnership was dissolved, and the interest of P in the effects of the firm assigned to O for value. The suit was then entered for his use. At the trial the defendant proved that during the partnership one of the plaintiff's informed the witness, that they had an interest of three-fourths in certain houses building on F street by the defendant, and that the defendant was to take hardware for that interest. The defendant then proposed to prove, that in a conversation after the dissolution. P informed the witness, that the plaintiffs had taken an interest of three-fourths of a house in the house aforesaid, and the plaintiffs were to give defendant the hardware for which this suit was brought, for such interest. The County Court admitted the evidence, but this court upon appeal, decided it to be incompetent.

Declarations of a partner, made after dissolution, cannot per se, establish a contract against his co-partner.

The declarations of an agent, in relation to his agency, made subsequent to its execution, when his authority was functus officio, are not evidence against his principal.

Courts of common law have, to a limited extent, for the purposes of justice, recognized the interests of the assignees of legal choses in action; and by a summary equitable jurisdiction, exerted on motion, they will protect those assignees against such acts or admissions of their assignors, as would operate in fraud of their rights. This protection is afforded, whether the defence arises upon plea, or appears upon evidence under the general issue.

Where O and P were partners in trade, and upon the dissolution, P assigned for value, all his interest in the partnership effects to O, a court of law will not permit P by his mere declaration made after such assignment to defeat an action brought in their joint names.

The plaintiff upon the record at common law, cannot, unless he voluntarily waive his privilege, be compelled to give testimony for the defendant.

The case of Wood, et al, assignees of Hussey, et al, vs. Braddock, 1 Taunt. 104, overruled.  

COUNSEL:
Gill, for the appellants contended, upon the first exception, that the evidence of Manroe, proposed to be given, and rejected, was admissible under the circumstances, as part of the res gestae. That the book mentioned in said proposed evidence, was admissible upon the same principle; that the entries therein,  [**8]  being made in the ordinary course of business, were admissible as confirmatory evidence, and necessary for that purpose. Case vs. Potter, 8 Johns. Rep. 211. Vosburgh vs. Thayer, 12 Ib. 461.

2. That after the dissolution of the partnership, and the assignment by Piet of his interest therein to Owings, and after the bringing of the suit, Piet could do no act to discharge such suit, and therefore his declarations made subsequently were not evidence. Frear vs. Evertson, 20 Johns. Rep. 142. Baker vs. Stackpole, 9 Cowen, 433.

3. That as Piet had no interest in the suit, being only a nominal party, he was a competent witness for the defendant, and his declarations consequently could not be given in evidence. Thomas vs. Denning, 3 Harr. & Johns. 242.

Moale and Mayer for the appellee.

1. The usage which prevails in New York, in regard to the admissibility of entries made by the parties themselves in their books, does not obtain in this State, and consequently the cases referred to on the other side, can have no bearing upon the judgment of this court.

The acts of 1729, ch. 20, and 1795, ch. 46, are conclusive to show the absence of any such usage. Nor can the plaintiffs [**9]  avail themselves of the doctrine of res gestae, that being only applicable, when the thing in relation to which it is asserted, is proved to be done. But here, the very question is, were the articles charged, sold, and delivered, and until that is proved, no foundation is laid for the application of the res gestae. Upon this exception they cited, Digby vs. Stedman, et al. 1 Esp. Cases, 328. Price vs. Earl of Torrington, 1 Salk, 285. Pitman vs. Maddox, 2 Ib. 690. 1 Phillips' Ev. 195, note (a). Calvert vs. Archbishop of Canterbury, 2 Esp. Rep. 646. 1 Stark. Ev. 72. Pritt, et al. vs. Fairclough, et al. 3 Camp. Reps. 305. Harrison vs. Blades, et al. Ib. 457.

2. The declarations of Piet were evidence against the plaintiffs. Every thing which occurs during the partnership, in relation to the business of the concern, is evidence against the partners; and the admissions of either of them, though made after the dissolution, are admissible in behalf of third persons, to defeat a partnership demand. Wood vs. Braddick, 1 Taunt. 104. 1 Saund. P. and Ev. 62. Lucas et al. vs. De La Cour, 1 Maule & Selw. 254. Van Reimsdyk vs. Kane, et al, 1 Gallison Rep. 631.

The object of the proof was [**10]  not to charge the partners, but to show the nature of a contract made during its continuance. Ward vs. Howell, 5 Harr. and Johns. 60.

It was not competent to the defendant, to examine Piet as a witness; at least he could not do so, without releasing him from his responsibility for costs, which he was under no obligation to do.

The declarations of the plaintiffs on the record, are always admissible to defeat the action, though he is a mere trustee. Lovelace vs. Curry, 7 Term. Rep. 633. Lucas et al. vs. De La Cour, 1 Maul. and Selw. 249.

But at all events the declarations of Piet, are evidence against himself; and the action being a joint one, for the recovery of a joint debt, the plaintiffs must fail, if the evidence shows that one of them has no claim. The plaintiffs declare for a joint claim, and cannot be permitted to recover for a separate one.

It does not appear that the defendant had notice of the assignment to Owings, until the paper was produced at the trial, which distinguished it from the case in New York.

The consent of Piet alone would not have made him a witness. Owings's consent must also have been obtained. Frear vs. Evertson, 20 Johns. 142. But [**11]  if his single consent would have been sufficient, still, as he could not be forced to testify, his declarations could be proved. The City Bank, Baltimore, vs. Bateman, 7 Harr. and Johns. 108. Wood vs. Braddick, 1 Taunt. 104.

Johnson in reply.

1. The opinion of the court, in the first exception precluded the plaintiffs from recovering the price of any of the articles, except those, which were delivered and charged by the witness himself; though some of those which were charged by the plaintiff, were delivered by the same witness. In relation to these, at least the evidence was sufficient to go to the jury, as tending to prove the sale and delivery.

2. In regard to the admissibility of the declarations of parties, the rule is the same with respect to plaintiffs and defendants, and in reference to the latter, it is well settled that the admissions of a partner, after dissolution, are not evidence to charge his former partner. 5 Harr. and Johns. 60.

The ground upon which such evidence is excluded, is, that after the dissolution of the partnership, the parties have ceased to be the agents of each other. And it is not material whether the agreement proposed to be proved [**12]  by Piet, was made before or after the dissolution. If before, still subsequent declarations by Piet, in relation to it are not evidence against Owings, because then he had no authority to speak for him.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*142]  DORSEY J., delivered the opinion of the court.
From the opinion of the County Court in the first bill of exceptions, we do not feel ourselves at liberty to dissent. The testimony given by the witness, except as it relates to his own entries in the day book, was of a character so vague and indefinite, that upon no sound principles of reasoning or inference, could the jury have made it the basis of a verdict for the plaintiffs. The court therefore were right in instructing them, of its legal insufficiency for the purpose for which it was offered. To establish the entries made by Dukehart, it has not, even in the argument been pretended, that it was available. To sustain those made by the plaintiff, it was so destitute of every thing like precision or certainty to any intent, that the court acted wisely in withdrawing it from the consideration of the jury.
The [**13]  cases referred to from New York, in which, by a local usage, the books of accounts kept by creditors themselves, who are proved to have been of fair character, and correct in their dealings, are sufficient evidence before a jury to establish such accounts, it cannot be necessary to remark 

 [*143]  are of no authority in this State, where such an usage not only never existed, but is at war with all the acts of our legislature, in relation to proving accounts, and the uniform decisions of our courts of justice upon the subject.
In permitting the testimony objected to, in the second bill of exceptions, to go to the jury, we think the County Court erred. The declarations of Piet were made after the dissolution of the partnership; and consequently after all power had been withdrawn from him, either by word or deed, to create any new contract obligatory upon Owings, his former partner. The incompetency of partners to bind each other after dissolution, applies as well to cases in which they sue in the character of plaintiffs, as to those in which they stand in the attitude of defendants. Did the declarations of Piet assert the evidence of a partnership contract, of which,  [**14]  no other evidence had been previously offered, presents itself to our inquiry? Of this there can be no doubt. The only proof before produced to defeat the plaintiffs claim was, that the hardware charged in their account was not to be paid for by Low, but furnished by the plaintiff's under a special contract, which secured to them, as its equivalent, an interest of three-fourths in the houses to be built upon Franklin street. Instead of relying on this agreement, the defendant offers the declarations of Piet made after the dissolution of the partnership, to prove a new and entirely different contract, by which the plaintiffs are said to have "taken an interest of three-fourths of a house in the houses aforesaid on Franklin street, and that the plaintiffs were to give said Low hardware, for which this suit was brought for the said interest." To support the opinion of the County Court, the case of Wood and others, assignees of Hussey and others vs. Braddick, 1 Taunt. 104, has been referred to, and that case, it must be admitted, does go the whole length of the decision made by the County Court.
But to the principle there established, we never [**15]  can assent. The question was, whether certain merchandize had 

 [*144]  been consigned to Cox and Braddick, or to Cox alone, and without any other proof than a letter from Cox written four years after the dissolution of the partnership; it was held, that the consignment was made to the firm, and not to Cox. With as much propriety might it be insisted, that the declarations of an agent in relation to his agency, made long subsequent to the execution thereof, when his authority was functus officio, were evidence against his principal. If the letter of Cox had been the statement of some fact, in relation to a contract, into which it had been proved by other testimony, that he and his partner had entered; as for example, that a certain balance was still due, or that the contract on their part had not been complied with, the admissibility of the evidence might have been insisted on, with some plausibility; and it would not have been without analogies in the law to sustain it. As where two persons give a joint and several note; the admissions of one of them that the note was unpaid, or the like, would be evidence against both. But to permit one partner, after the [**16]  dissolution of the partnership, by his simple declarations, to impose upon his former co-partner any contract which he in said declarations may see fit to state, as having originated anterior to the dissolution, appears to us a solecism in the law, and productive of consequences so ruinous and unjust, that if sanctioned, no prudent man would ever form a copartnership. That such a principle does not prevail in Maryland, is settled by the decision of this court, in Ward vs. Howell and others, 5 H. & J. 60.
In New York, the doctrine, that the admissions of a partner after dissolution, as to transactions during the partnership, are not evidence to bind the other partners, is put to rest by numerous decisions; and they draw no distinction between such admissions, when made of a contract of which they are the only evidence, and where made in relation to a contract substantiated by other testimony. Baker vs. Stackpole, 9 Cow. 420, and the cases there referred to.

 [*145]  It is said however, that no matter whether the admissions of Piet bind Owings or not, they are admissible against him who made them, and are sufficient to bar his recovery;  [**17]  and it being a joint action at law, there cannot be a separate judgment in favor of one of the plaintiffs.
In refusing to permit the defendant to set up such a defence, we think the County Court, under the circumstances of this case, were clearly right. Long before the declarations offered in evidence were made, Piet had for a valuable consideration, assigned all his interest in the cause of action to his co-partner. To permit him afterwards, by his simple declarations or admissions to defeat such claim would be a fraud upon Owings, which nothing but an imperious obligation to submit to some inflexible principle of law, would induce us to tolerate. None such exists in this case. Courts of common law have long since recognized to a limited extent, for the purposes of justice, the interests of the assignees of legal choses in action; and by a summary equitable jurisdiction exerted on motion, they will protect those assignees, against such acts or admissions of their assignors, as would operate in fraud of their rights. This protection is afforded by refusing to permit the defendant to avail himself of the defence thus furnished him, whether attempted to be asserted in the [**18]  form of a plea, or by way of evidence under the general issue. As authorities for such a practice, see Frear vs. Evertson, 20 Johns. 142. Jones vs. Witter, 13 Mass. 304. Jenkins vs. Brewster, 14 Mass. 291. Legh vs. Legh, 1 Boss. & Pul. 447. Jones and Matthews vs. Herbert, 7 Taunt. 421. Hickey vs. Burt, 7 Taunt. 48. Skaife and Caris vs. Jackson, 3 B. & C. 421.
It has been contended, that the case of Thomas' Exec'r vs. Denning use of Page, 3 H. & J. 242, was a conclusive authority, that no such practice existed in this State. But such an inference is not warranted by that case, whatever may have been the opinion of the reporters on that subject. The judgment no doubt rested on the 

 [*146]  fact, that the nominal was the real plaintiff, there being no evidence that the chose in action had ever been assigned.
To evade the force of this necessary and wholesome exercise of equitable jurisdiction by courts of common law, it has been insisted, that the essential ingredient to warrant its exertion is wanting, to wit, a previous notice of the assignment [**19]  to the defendant. But such notice under the circumstances of this case, is wholly immaterial. The want of it has subjected him to neither detriment nor inconvenience; he has done nothing in ignorance, which he would not have done with full knowledge of the assignment.
The inadmissibility of the evidence was pressed upon another ground; that Piet having no beneficial interest in the controversy, he could have been called as a witness, and therefore his declarations were inadmissible, not being the best evidence of which the nature of the case would admit. But from this position we must dissent. The plaintiff upon the record at common law, cannot, unless he voluntarily waive his privilege, be compelled to give testimony for the defendant. Such a voluntary waiver, he, the defendant, was neither bound to have anticipated nor accepted. Indeed, if the decision before cited from 20 Johns. is to be respected, Piet could not have been received as a witness, but by the assent of Owings, the cestui que use. The competency of the testimony offered, stands unaffected by this objection.
We concur with the County Court, in their opinion, in the first bill of exceptions, but dissenting [**20]  from that, in the second, we reverse their judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

15 of 43 DOCUMENTS 

YATES and MCINTYRE vs. O'NEALE and SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 253; 1831 Md. LEXIS 15 

December, 1831, Decided 

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

This was an action of Assumpsit, instituted by the present appellants, against the appellees, on the 31st of July, 1826, upon the following written contracts: "Know all men by these presents, that we, H. G. O'Neale and Jonas Smith, are held and firmly bound unto John B. Yates and Archibald McIntyre, in the penal sum of $ 1,000, to be paid to the said Yates and McIntyre, or either of them, or their certain attorney, heirs, executors, administrators or assigns, to which payment well and truly to be made, we bind ourselves, our heirs, &c. Witness our hands and seals, this 24th day of June, 1824. Whereas, the above bounden H. G. O'Neale has undertaken, as agent for the above named Yates and McIntyre, to vend lottery tickets, for which he is to receive a certain allowance, as agreed upon between them and the said above bounden H. G. O'Neale; and has also agreed to make due returns of such money as he shall receive for said tickets, and sell them at such prices as he may from time to time be directed by them, or their agent residing in Baltimore: now therefore, the condition of the above obligation is such, that if the above named H. G. O'Neale shall [**2]  well and faithfully perform his duty, as agent aforesaid, pursuant to the instructions he shall from time to time receive, and duly return all the money which he shall receive for lottery tickets, or shares, as soon as received by him, then this obligation to be void, or else to remain in full force. H. G. O'Neale, Jonas Smith."

"Memorandum of agreement between H. G. O'Neale and John B. Yates, and Archibald McIntyre, by S. Scribner, their agent, made this 24th of June, 1824. The said H. G. O'Neale agrees to sell lottery tickets for said Yates and McIntyre, for cash only, and return to their agent in Baltimore all such money, as he shall, from time to time, receive for them, by mail, unless otherwise directed. And he also agrees to return to the office in Baltimore, by mail, if not otherwise directed, all such tickets as shall remain unsold, at such time previous to the drawing, as he shall be directed by the said Yates and McIntyre, or their agent residing in Baltimore. And the said Yates and McIntyre agree to allow the said H. G. O'Neale, for all the tickets he shall so sell and remit, the money for one-half the advance price for which they shall sell, over and above the scheme [**3]  price of the tickets; the business of the agency, and expenses thereof, to be borne by the said H. G. O'Neale, except the postage, which is to be charged equally to both the parties. H. G. O'Neale. S. Scribner, agent for Yates and McIntyre."

It was admitted that the defendant, H. G. O'Neale, as agent of the plaintiffs, after the execution of the said instrument of writing, received from the plaintiffs sundry lottery tickets, and shares of lottery tickets, in a certain lottery thereafter to be drawn, and which lottery was authorized by an act of assembly of this State, and that he vended and disposed of said tickets, as such agent, in the town of Middletown, in Frederick county, and received from the vendees respectively, the prices thereof: and that on the 23d of September, in the year 1825, he was in arrears in the sum of $ 398 25, for money by him previously received, for tickets by him previously sold, as such agent, and for which he had not returned the money to the plaintiffs, or their agent, or in any way paid, or accounted for the same. The plaintiffs also proved, by a competent witness, that afterwards, and after the determination of such agency, the defendants acknowledged [**4]  that the said sum was in arrear as aforesaid, and promised to pay the same within two weeks thereafter, and that the same money and every part thereof, is yet unpaid. The plaintiffs here rested their case. The defendants then prayed the court to instruct the jury, that the plaintiffs are not entitled to recover in this cause from the evidence offered; because the contract on which the suit is brought, is void, by virtue of an act of assembly of this State, passed at December session, 1821, ch. 232, which instruction the court (SHRIVER, and Th. BUCHANAN, A. J.) gave. The defendant excepted.

2. The plaintiffs then, upon the facts stated in the foregoing bill of exception, prayed the court to instruct the jury, that if they shall believe from the evidence in the case, that H. G. O'Neale, as such agent, was in arrear to the plaintiffs, in the sum of $ 398 25, and that afterwards the defendants acknowledged the said sum to be due to the plaintiffs, and promised to pay the same to the plaintiffs within two weeks thereafter, and that they have failed to do so, and that the same is yet due; then the plaintiffs are entitled to a verdict for such sum as the said sum of $ 398 25, with interest [**5]  from the day of the impetration of the writ in this cause, shall amount to. Which instruction the court refused to give, and the verdict and judgment being for the defendants, the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The act of 1821, ch. 232, was not designed to prevent the mere sale of lottery tickets, or to impose upon the seller the necessity of obtaining a license therefor. Its prohibitions only extend to the opening, setting up, exercising, or keeping any office or other place, for selling lottery tickets, or registering the numbers, or publishing the setting up, &c. without having first obtained a license for that purpose.

A contract between A and B, by which the latter agreed to become the agent of the former, for the sale of lottery tickets, account for, and remit a certain part of the sales of tickets, return unsold tickets, and bear the expenses of the agency, is not void under the act of 1821. There is nothing in such a contract, upon any principle of construction applicable to penal statutes, that could warrant a jury in inferring that the agent had agreed to open an office, &c. of the character described in the act; and the court will not presume that A intended to violate that law, by having an office kept without a license. 

COUNSEL:
Wm. Schley, for appellant.

1. The contract is not void by the act of 1821, ch. 222. This act does not prohibit the business of vending lottery tickets; nor does it forbid the creation of an agency for that purpose. It is just as lawful to vend lottery tickets in authorised lotteries, by agent, as it is to vend merchandize, by agent. In both cases a license is necessary; not to legitimate the pursuit, but to qualify the vendor. How does the contract contravene the provisions of the act? The creation of an agency with a view to the sale of tickets, is not ipso facto, opening an office for that purpose, within the meaning of the act. It was a preparatory step. No one can be said to sell by agent, until he has constituted one. It is not shewn affirmatively, that a license was obtained; but non constat, that one was not procured. O'Neale was to bear the expenses of the agency; and, if necessary, it ought to be presumed, that [**6]  a license was obtained. But this is immaterial. A contract cannot be considered in fraudem legis, unless the parties had in view, at the time of its formation, a violation of the law. It is not good or bad by matter subsequent. 1 Com. on Cont. 31. Bull, N. P. 146. There is nothing upon the face of either contract shewing it to be of this character; nor is there any thing in the record, dehors the contracts, from which it might be inferred that a violation of this act was within their scope and object. Fraud is never presumed, much less a criminal intent. 2. But if there was any foundation for this objection, these defendants could not make it successfully. Where an agent has received money for his principal, he cannot set up in excuse of his resposibility, the supposed illegality of the dealings of which such money is the fruit. 1 Bos. and Pull. 296. 2 Stark. Ev. 120. These defendants are answerable upon their contract, precisely to the same extent that O'Neale himself would be accountable.

Palmer, for the appellant, contended, that the question really was, whether a party can vend lottery tickets without a license, and recover the proceeds of such sale; and not whether the contract [**7]  is void, by virtue of the act of assembly referred to. If the parties are particepes criminis in a void contract, neither can sue upon it. Though the rule may be, that money received by an agent, under a void contract, may be recovered from him by his principal, it can only apply to the agent, and Smith, the surety, does not fall within its operations. The suit was brought on the written contract, and the right to recover does not rest upon any supposed, implied agreement, growing out of the receipt of money by the agent, for the use of the principal. Contracts in violation of the common, or statute law, are void, and cannot form the foundation of an action. In this case, the obtension of a license was a condition precedent to the right to sell, and the selling without, is prohibited. Aubert vs. Maze, 2 Bos. and Pul. 374, 375. Collins vs. Blantern, 2 Wilson, 351. Bensley vs. Bignold, 7 Serg. and Low, 121. Where a contract is prohibited by statute, under a penalty, it is void, though not in terms declared to be so. 2 Carth. 252. 1 Com. 38. 1 Bos. and Pul. 264. Coleman vs. Wathen, 5 Term, 245. Steers vs. Lashley, 6 Ib. 61. King vs. Handy, Ib. 286. Buck vs. Buck, 1 Camp. 547.

Wm.  [**8]  Schley, in reply, insisted that this case differed from those cited on the other side. They respect the doing of some prohibited act, or some forbidden pursuit; and for which no license could be had. No license could be had which would qualify a person to commit murder, or to engage in smuggling, or to sell impure or unwholesome liquors, or to utter counterfeit coin, or to do any thing else, which is malum in se, or even malum prohibitum. He cited Johnson vs. Hudson, 11 East, 180, as illustrating the distinction.  

JUDGES:
DORSEY, J., delivered the opinion of the court.  

OPINIONBY:
DORSEY 

OPINION:

 [*258]  DORSEY, J., delivered the opinion of the court.
The only question which this court are called on to determine, is, did the county court err in granting the defendants' prayer in the first bill of exceptions? and to our minds, it is obvious that they did. The agreements between O'Neale and Yates and McIntyre, are simply an engagement on the part of the former, to sell lottery tickets, as the agent of the latter. The act of 1821, ch. 232, does not forbid this; nor were any of its provisions designed to prevent the mere sale of lottery tickets, or to impose upon the seller the necessity [**9]  of obtaining a license therefor. The only prohibition therein contained, is to the opening, setting up, exercising or keeping, any office or other place for selling tickets, or registering the numbers, or by writing, printing, or otherwise to publish the setting up, opening or using any such office or offices, or other place, without having first obtained a license for that purpose. There is nothing in the agreements, upon any principle of construction applicable to penal statutes, which could warrant a jury, much less the court, in inferring that O'Neale had engaged 

 [*259]  to open an office, &c. of the character described by this act of assembly; and the testimony is equally silent as to his obligations or acts under those agreements. But even suppose that these contracts bound O'Neale to keep an office, &c., is it a fair legal presumption to be drawn by the court, that Yates and McIntyre intended a violation of the law, and the keeping of such office without license? There is nothing in the nature or terms of the agreements themselves, or in the testimony contained in the bill of exceptions, which could justify such a conclusion. Dissenting therefore from the [**10]  opinion delivered by the county court in the first bill of exceptions, we reverse their judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

16 of 43 DOCUMENTS 

SOTHORON vs. GUSTAVUS and GEORGE WEEMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 435; 1831 Md. LEXIS 32 

December, 1831, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Saint Mary's County Court.

Assumpsit by the appellees for the use of Gustavus Weems, commenced against the appellant, James F. Sothoron, on the 20th of November, 1821. The defendant pleaded non assumpsit, to which issue was taken. (See Weems, et al. vs. Millard, 2 Harr. and Gill, 143.)

At the trial the plaintiffs read to the jury the following paper: "We the subscribers promise and oblige ourselves, our heirs and executors, to pay or cause to be paid unto George Weems & Co. the sum we may subscribe as a payment for the steam boat Surprize, in three equal installments, in manner and form following, viz: one-third on or before the 10th day of March next, and one-third on or before the 10th day of April following, and the balance on or before the 10th day of June next. It is hereby understood, that we, George Weems & Co. bind ourselves to appropriate the money subscribed in no other manner but for the payment and use of said boat, and that each subscriber will hold an interest in proportion to the shares they may take, and will be entitled to draw their proportion of dividend once in every six months after the starting of the said boat. We, George Weems & Co. bind [**2]  ourselves to run said boat from Baltimore to Patuxent river, and as far up as Nottingham, and to use every possible exertion in our power to the interest of the said boat. The shares will be divided into 280 shares, of $ 100 each. 1st December, 1818." Then follows the list of subscribers, annexed to the above paper, to the amount in the whole of fifty-one shares. The defendant's name was down for five shares, and his signature thereto was admitted; the partnership of the plaintiffs was also admitted, and thereupon the plaintiffs closed their case.

The defendant then prayed the court to instruct the jury, that the plaintiffs were not entitled to recover; but the court [STEPHEN, Ch. J.] refused the instruction prayed for, and directed the jury that the contract or subscription list bore on its face evidence, that Gustavus and George Weems, the plaintiffs, were the proprietors and owners of the steam boat Surprize, at the time when the said list or contract was signed, and that the said list proved the averment of ownership in the declaration, and that the plaintiffs were entitled to recover. The defendant excepted.

2. In addition to the evidence contained in the first bill [**3]  of exceptions, the defendant offered to read in evidence to the jury, a certified copy of a deed of mortgage executed by George Weems, one of the plaintiffs, to John White, cashier of the Branch Bank of the United States at Baltimore, dated on the 18th of August, 1820, and duly acknowledged and recorded, of three undivided fifth parts of the steam boat Surprize, with the like proportion of her tackle, apparel, &c. to secure to the said Branch Bank the sum of $ 7,600, due to it by the plaintiffs, Gustavus and George Weems, upon their joint promissory note, dated June 30th, 1820. To the admissibility of this evidence the plaintiffs objected, and the court sustained the objection. The defendant excepted.

3. After the evidence in the preceding exceptions had been given, or offered and rejected, the defendant, for the purpose of showing that George Weems, one of the plaintiffs, had been finally discharged under the insolvent laws of the state, offered to read in evidence a transcript of the record and proceedings in his case before the Commissioners of Insolvent Debtors, and County Court of Baltimore county; to the admissibility of which, under the general issue, the plaintiffs objected.  [**4]  The court sustained the objection, and excluded the testimony. The defendant excepted.

4. The defendant then offered to prove by a competent witness, that George Weems, one of the plaintiffs, advertised for a meeting of the stockholders in the steam boat Surprize, at Leonard Town, and the meeting was had some time in the summer. When they met, the said Weems asked for payment of their subscriptions from the present defendant, and others present; the stockholders refused to pay, alleging that he had not complied with his part of the contract, by putting the steam boat Surprize in a proper state to navigate, as agreed, and the present defendant, with all the stockholders present, then agreed they would not pay their subscriptions. To the admissibility of this testimony the plaintiffs objected, upon the ground that a subsequent agreement by parol, could not be admitted to contradict or vary a written contract. The objection was sustained by the court, and the evidence withheld from the jury. The defendant excepted, and the verdict and judgment being for the plaintiffs, he brought the present appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Where a party at the trial of a cause makes a general prayer to the court which is refused, and the court then proceeds of their own accord to give a specific instruction to the jury, which was excepted to, this court upon appeal will review such instruction, although since the act of 1825 it would not have regarded the general prayer.

In an action of assumpsit brought by W. & Co. to recover a portion of the installments mentioned in the following agreement, dated 1st Dec. 1818, viz: "We the subscribers, promise to pay unto W. & Co. the sum we may subscribe as a payment for the steam boat S. in three equal installments, viz. &c. It is hereby understood, that we, W. & Co. bind ourselves to appropriate the money subscribed in no other manner, but for the payment and use of said boat, and that each subscriber will hold an interest in proportion to the shares he may take. We, W. & Co. bind ourselves to run said boat from B. to &c. and use every possible exertion in our power to the interest of the said boat. The shares will be divided into 280, of $ 100 each." It appeared that 51 shares of the stock had been subscribed for, of which the defendants had taken five. HELD, 1. That it was not to be implied from the terms of this agreement, that W. & Co. were the owners of the steam boat. 2. That the signing of this contract was an imperfect act, of no legal obligation until the whole number of shares should be subscribed; and until that was done W. & Co. were under no obligation to perform their part of the agreement. 3. That W. & Co. having assigned, by way of mortgage, three-fifths of the said steam boat, after the signing of the agreement and before the bringing of the action, the consideration for the promise of paying the installments contained in the agreement had failed, and therefore the action could not be sustained. 4. That upon the issue joined in this case, the defendant could not show that at a meeting called by W. & Co. of the subscribers thereto, it was determined by them not to pay the subscriptions, upon the ground that W. & Co. had failed in their part of the engagement.

Evidence offered to the jury for a particular purpose, may be properly rejected, though it might be admissible for some other object in the same cause.

Under the act of 1825, ch. 117, the appellate court considers what particular point, or question the County Court has decided, and determines accordingly, whether it is correct or erroneous, and not whether the reasons assigned by the counsel on the record justifies what has been done.

So where the admissibility of the testimony adduced, being objected to, whether it was admissible or not for the reason assigned, is wholly immaterial; this court regards as the point decided below, the competency or incompetency of the evidence.  

COUNSEL:
Magruder, Scott, and Stonestreet for the appellant, contended,  [**5]  1. That the contract or subscription list dated December 1st, 1818, set forth in the first bill of exceptions, was not evidence that the plaintiffs were the proprietors and owners of the Surprize, at the time when said list or subscription was signed, and because said paper did not sustain the averment of ownership in the declaration, nor the instruction of the court, that the plaintiffs were entitled to recover. 2. That said paper or subscription list, is only evidence of an inchoate agreement, not binding per se, upon either of the parties, because the small number of shares taken, as compared with the whole number necessary to the enterprise, was such as to justify the plaintiffs in declining to purchase the boat, or from putting her on the proposed route from Baltimore to the Patuxent; and that if they did so, and in all respects fulfilled the agreement on their part, in order to recover, it was incumbent on them to prove the fact. 3. That as the project had failed, the plaintiffs were not entitled to recover in the present action, without adducing evidence that the failure was occasioned by the default of the defendant. 4. The promise of the defendant, as it appears in the evidence,  [**6]  is a naked promise, without consideration. 5. That the court below erred in rejecting the evidence in the second exception, because said evidence was competent to show that the said George Weems, one of the plaintiffs, had disposed of his interest in the vessel, and had thereby deprived himself of the power of fulfilling his part of the contract. 6. That the evidence in the fourth exception was admissible, to show a failure of consideration. They referred in the argument to 2 Saund Pl. and Ev. 136. 2 Ib. 245. Cuff vs. Penn, 1 Maul and Selw. 21. 3 Stark. Ev. 1007. Batturs vs. Sellers, 6 Harr. and Johns. 249. Wyman and Gray, 7 Ib. 409. Stewart vs. The State, 2 Harr. and Gill, 114.

C. Dorsey, for the appellee, referred to Roberts on Frauds, 124. New. Con. 171.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*439]  DORSEY, J., delivered the opinion of the court.
The County Court were right in refusing the defendant's prayer, in his first bill of exceptions, it being a general prayer, the granting of which, since the act of 1825, would be error. To this refusal no exception was taken. But the court, however, did not stop here; they instructed [**7]  the jury, "that the contract or subscription list, bore on its face evidence that Gustavus and George Weems, the plaintiffs, were the proprietors and owners of the steam boat Surprize, at the time when the said list or contract was signed, and that the said list proved the averment of ownership in the declaration, and that the plaintiffs were entitled to recover; to no part of which instruction can we subscribe our assent. Instead of this subscription list per se, importing that at its date the plaintiffs were the owners of the steam boat Surprize, as far as any inference on that subject can be drawn, from its entire context we should infer, that the Surprize was owned by some other person, and that the object of the subscription was to raise the sum of $ 28,000, with which the appellees were to purchase and equip the steam boat, for the purposes set forth in the contract. If the boat were already the property of the appellees, what motive could prompt the subscribers to require the appellees 

 [*440]  to bind themselves "to appropriate the money subscribed in no other manner but for the payment and use of said boat." The appellees being the owners, it was [**8]  perfectly immaterial to the subscribers, what appropriation might be made of so much of the fund raised by subscription, as covered the price of the boat; and it were absurd in the appellees, the owners of the boat, who received the money in payment for her, to stipulate that they would appropriate the money in no other manner but for the payment of the boat; besides, if George Weems & Co. had been the owners of the Surprize, can a reason be assigned, why the price to have been paid for her was not inserted in the contract? Was it a matter to have been left to the uncontrolled discretion of the sellers, in which the subscribers, the purchasers, had no interest, and of which they desired no information? The nature of the transaction repudiates such ideas. But conceding that the County Court were correct in inferring from the subscription list, that George Weems & Co. were the proprietors of the steam boat, we cannot assent to that part of their instruction, which declares that they are entitled to recover. The signing of the contract was an imperfect act, of no legal obligation until the 280 shares should be taken. Until then, George Weems & Co. had they subscribed the [**9]  agreement, as from its tenor, it was manifestly designed they should do, could not have been compelled to perform any of the stipulations on their part assumed: nor could they have exacted performance of any of the subscribers, because the implied condition (the subscription of the 280 shares,) on which their liability was to become absolute, had not occurred.
To test the accuracy of the County Court's opinion, in the second bill of exceptions, let it be admitted, that their instruction, as given in the first bill of exceptions, stands free from all objection, and that according to the proof then offered, the plaintiffs below were entitled to recover; does not the copy of the conveyance offered in evidence in the second exception, divest them of the basis of their action? 

 [*441]  Upon the assumption of the court's correctness in the preceding exception, what is the consideration on which depends, the right to coerce the subscribers to a performance of their engagements? It is, that on payment of their money, they thereby acquire as an equivalent, an interest or property in the steam boat Surprize. If then it be shewn, that the payment of the subscription will not invest the [**10]  subscribers, with the stipulated property in the steam boat, the consideration for their promise has failed, and payment cannot be enforced in a court of justice. The testimony offered, we think, fully establishes such failure of consideration; and the County Court therefore erred in its rejection.
The withholding from the jury the evidence set forth in the third bill of exceptions, gives to the appellant no ground for complaint; it was offered for a particular purpose, and if inadmissible therefor, it was properly rejected, although it might be admissible for other purposes. The object of the testimony was stated to be, "for the purpose of proving that he (George Weems) had been finally discharged under the insolvent laws of the State." This fact being immaterial to the issue in the cause, the proof for its establishment could not be otherwise, than incompetent. Had it been offered not only for the purpose stated, but to prove, that all the property, rights and credits of George Weems, had passed out of him, and vested in his trustee, it might perhaps have presented a different question for consideration.
The decision of the County Court in the fourth bill of exceptions,  [**11]  meets our approbation. The admissibility of the testimony adduced, being objected to, whether it be inadmissible or not, for the reason assigned, is wholly immaterial. If it be inadmissible on any ground, it should be rejected; and when the subject comes in review before this court, under the act of 1825, we regard, as the point decided by the court below, the competency or incompetency of the evidence, not the sufficiency or insufficiency 

 [*442]  of the reason urged for its rejection. Upon the issue joined on the pleadings in the cause, the testimony in this exception was clearly incompetent.
We concur with the County Court, in their decision in the third and fourth bills of exceptions, but dissent from their opinions in the first and second, and therefore reverse the judgment.
JUDGMENT REVERSED.  

17 of 43 DOCUMENTS 

WM. L. BOYD AND OTHERS by J. L. BOYD, THEIR FATHER AND GUARDIAN vs. DENNIS BOYD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 25; 1833 Md. LEXIS 32 

December, 1833, Decided 

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

This bill was filed by the appellants on the 11th April, 1831. It stated that William L. Boyd, the uncle of the complainants, all of whom are minors, died some time in the year 1827, having first made his last will and testament, now duly admitted to probate, and that letters of administration with the said will annexed have been granted to the appellee by the Orphans court of Baltimore county. That by the said will, the appellee is entitled, of the testator's estate, to the use of $ 10,000 during his natural life, free of interest, with directions that the same shall be invested after his death in bank stock, in the name of, and for account jointly and equally of the complainants, the children of Jeremiah L. Boyd; and that all other moneys that should be remitted to said Dennis, (the appellee) the testator directed to be invested in stock of the Bank of the United States, also in the name of, and for the equal benefit of the said complainants. That there has been remitted to and received by the appellee, of the estate of the said testator, the sum of at least $ 10,000, the whole of which, as he left no debts unsatisfied, is subject to the directions [**2]  of his will. That twenty-three months have elapsed since the grant of letters to the appellee, whose pecuniary circumstances are such as to make it probable, that without the interposition of the Chancery court for the security of the complainants, the said sum of $ 10,000, mentioned in the said will, will not after the death of the said appellee remain entire to be invested for them; but on the contrary they believe, and so charge their fears to be, that if said sum of $ 10,000 be allowed to remain blended with the common property of the appellee, and thus involved with the chances of his business, the views of the testator with reference thereto will be entirely defeated. The bill then alleged, that the residue of the testator's estate over the $ 10,000 should be directed to be invested for their use, according to the will, which they allege not yet to have been done. That the complainants do not know what sums of money or property the appellee has received, for which he is accountable as aforesaid to them; or whether he may not at the date of the will have been indebted to the testator for money lent, or on other account. The bill then prayed for a discovery in reference to all [**3]  these matters, and that the appellee may be compelled to invest the said sum of $ 10,000, or to execute such conveyances and securities in that behalf, as to the Chancellor shall seem right, for the protection of the interests of the complainants, and for general relief.

The will, a copy of which was filed as an exhibit with the bill, was in the form of a letter, dated at Rio de Janeiro, 19th July, 1827, and was in the following words.

"Dear Dennis,--I have been confined for two weeks, but am about again, and being alarmed at the nature of my disease, determined at once to try a sea voyage, and therefore have taken my passage in the brig Cervantes, to sail in the morning for Baltimore, where I hope to be before you have any intimation of my coming.

"In case of my death before we meet again, and as I have made no will or disposition of my affairs, I want you to observe, and make such a disposition of the moneys that may come into your hands, as expressed by me in this letter, to wit: ten thousand dollars, of which you are already in possession of the greatest part, is to be at your disposition and for your use, free of interest, during your natural life time, but after [**4]  your death to be invested in bank stock, in the name of, and for account jointly and equally of the children of Jeremiah L. Boyd.

"All the money that may be remitted to you from Rio de Janeiro, by the house of James Birckhead & Co. for my account, is to be invested in United States Bank stock, to be held in the name of, and for the equal benefit of the children of my brother, Jeremiah L. Boyd, the interest to be appropriated annually towards their education, and the principal not to be divided until the youngest comes of age. Understanding this my wish, I trust you will comply with it most certainly, and by no means suffer any other appropriation of my effects. Hoping to be with you in forty-five days from this time, and improved in health, I remain your affectionate brother, Wm. L. Boyd."

The defendant having been returned "summoned," and not having answered according to the rules of the court, an interlocutory decree passed, and an ex parte commission issued on the 17th October, 1831, to prove the allegations of the complainants' bill, in conformity with the act of 1820, ch. 161.

The only evidence returned with the commission was an attested copy of the will, and an [**5]  account settled by the appellee with the Orphans court of Baltimore county, on the 1st March, 1832, in which, after charging himself with the amount of assets then in his hands, and taking credit for the $ 10,000 bequeathed to him by the testator for life, and a sum invested by him in United States Bank stock, in the names of the appellants, in pursuance of the directions of the will, there remained a balance in the hands of the appellee, as administrator, of $ 2092 62.

The cause without further proceedings was set down for final hearing in the court of Chancery, and at the July term of that court in the year 1832, Bland, Chancellor, dismissed the bill with costs.

From this decree the complainants appealed to the court of Appeals.  

DISPOSITION:
CASE REMANDED.  

HEADNOTES:

Upon a bill filed by complainants in the character and capacity of infants, claiming the equitable interposition of Chancery in their behalf, the fact of infancy is a material allegation, and should be sustained by proof, if not admitted by the answers.

Where a testator devised as follows, viz. "$ 10,000, of which you (the devisee) are already in possession of the greatest part, is to be at your disposition, and for your use, free of interest, during your natural life-time; but after your death to be invested in bank stock, in the name of, and for and on account jointly and equally of the children of J;" and the residuary legatees, infants, filed a bill to invest the fund immediately; a charge that the fund was in danger in the hands of the legatee for life, was held to be indispensable under the circumstances of the case, to warrant the court in placing the fund in a different situation from that directed by the testator.

A defendant in Chancery was returned summoned, and did not answer: an interlocutory decree was passed against him, and an ex parte commission issued, under which some evidence was returned. The cause was then put down for final hearing, and the bill dismissed by the Chancellor. Upon appeal, it appearing that the defendant had a sum in his hands which the complainants were entitled to have invested for their use, this court reversed the decree of the Chancellor, and remanded the cause, with liberty to amend proceedings, and produce further proofs.  

COUNSEL:
Mayer and Flusser, for the appellants, contended,

1. That the appellants were entitled to call on the defendant for security for the forthcoming of the fund at his death. 2 Com. Dig. 770. Hyde vs. Parrat, 1 Pr. Wms. 1. 2 Roper on Wills, 191-2. Studholm vs. Hodgson, 3 Pr. Wms. 300, 304. Foley vs. Burnell, 1 Bro. Ch. Rep. 274.

2. If however the defendant cannot be called upon for security, he can at all events be compelled [**6]  to invest the fund.

3. The allegations of the bill in regard to the perilous condition of the fund are sufficient, and the account settled with the Orphans court sufficiently proves those allegations to be true. Johnson vs. Mills, 1 Ves. Sr. 283. Hoare vs. Parker, 2 Durn. and East. 376.

4. But in the case of a pecuniary legacy, an allegation of danger is not necessary. 1 Jer. Eq. 350, 351. Green vs. Pigot, 1 Bro. Ch. Rep. 105. Johnson vs. Mills, 1 Ves. Sr. 283. 1 Cox's Ch. Rep. 244. Ferrard vs. Prentice, Amb. 273. Batten vs. Earnby, 2 Pr. Wms. 163. 1 Vern. 189.

Boyle, for the appellee.

1. There must be a distinct allegation, and proof of danger to the fund, before the court can call for security from the legatee for life. Foley vs. Burnell, 1 Bro. Ch. Rep. 279. Slanning vs. Style, 3 Pr. Wms. 336.

2. In this case there is no evidence, either that J. L. Boyd is the guardian of the complainants, or that they are minors, or that the debts of the testator have been paid, or of the insolvency of the appellee, or danger to the fund; of all which he contended there should have been proof.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*29]  STEPHEN, J. delivered the opinion of the court.
William L. Boyd in the month of July, 1827, then being in a foreign country, and contemplating the possibility of his death before his arrival in the United States, addressed a letter to the defendant, (which has since been admitted to probate as a testamentary paper) in which is contained the following disposition of a part of his property. "Ten thousand dollars, of which you are already in possession of the greatest part, is to be at your disposition, and for your use free of interest during your natural life-time, but after your death, to be invested in bank stock, in the name of, and for account jointly and equally of the children of Jeremiah L. Boyd." The event of his death, of which he seemed to have had an apprehension, did occur before he returned to this country. The object of the bill filed in this cause was to obtain the interposition of the court of Chancery, to have this fund placed in a state of security, so that the legatees in remainder might have the benefit of it after the termination of the interest for life therein given as above to his brother. The complainants [**8]  are stated in the bill to be infants under the age of twenty-one years, and sue by the said Jeremiah L. Boyd as their father and guardian. To this bill no answer was filed; but a commission was issued under which two exhibits only were returned, that is to say, the above mentioned letter, and an account returned to the Orphans court of Baltimore county 

 [*30]  by the defendant, to whom letters of administration with the will annexed were granted. In this state of the proceedings, the case was submitted to the Chancellor, by whom the bill was dismissed with costs. The question to be decided by this court is, whether this decree of dismissal under the circumstances of the case was correct; or in other words, whether the complainants were entitled to the relief sought by their bill. It is to be observed in the first place, that there is a total absence of all testimony to establish several essential facts necessary to be proved in this case, to entitle the complainants to the relief prayed by their bill. In the first place, they claim to be relieved in the character of infants, suing by their father and guardian; of the fact of their infancy at the time the suit was instituted,  [**9]  there is not the shadow of proof. They claim the interposition of the equitable powers of the court in the character and capacity of infants, suing by their father and guardian as their next friend, (for as such for the purposes of this suit we are disposed to consider him,) and yet have offered no evidence of their right or title to assume such a standing in court: without a proof of this fact, we do not think it was competent for them to sue in that capacity; and even if the charge of the fund being in danger or peril, in the hands of the legatee for life be sufficiently made, (of which doubts may be reasonably entertained, as there is no positive averment of that fact,) there is not a particle of evidence to establish or sustain that allegation. That such an averment ought to have been made and proved, under the particular circumstances of this case, to warrant the interference of a court of equity, to place the fund in a different situation from that directed by the testator, we think but little doubt can be entertained. The legatee for life was the first object of his bounty; he manifestly reposed in him by the terms of his will the most unlimited confidence. The ten thousand [**10]  dollars, the subject of the gift, were to be at his disposition, and for his use, free of interest during his natural life; and unless the complainants adduced some 

 [*31]  proof that this confidence had been misplaced, or was likely to be abused, and that their interest in remainder was about to be placed in jeopardy, we do not think that a withdrawal of the fund from his hands, or compelling him to give security, would comport with the benevolent intentions of the testator towards him. The language of the will is peculiarly strong and emphatic; he was to have the use and disposition of the property free of interest during his life, and in the exercise of this right of limited ownership over it, secured to him by the will, we do not think he ought to be disturbed or controlled, unless the interests of those who were the secondary objects of the testator's bounty manifestly required it. In Jer. Eq. Jr. 349, 350, it is said, "that formerly if personal estate was given to A for life, and afterwards to B, the latter or his personal representatives might in all cases have obtained a decree to compel the former to secure the same to him after his death, but that the present [**11]  practice, in ordinary cases, where the property consists of specific chattels, is not to require the defendant to give security unless there is well founded apprehension of danger thereto, but merely to oblige him to make out, sign and deliver to the plaintiff, or into the possession of the court, an inventory thereof; when, however, the property is not of a specific character, the practice is somewhat different; for in the instance of a legacy payable at a future time, in which it is frequently and most usefully applied, this court will direct the amount thereof to be paid into court, whether the period for payment be fixed or uncertain, and will regulate the application of the proceeds in the mean time, in such manner that justice may be done between all the parties, and will thus interfere, although there should not be any danger of loss from the misconduct or misfortune of the defendant." The authorities referred to in support of this principle, it is conceived, have no application to this case; but were cases of legatees suing executors to have their legacies secured, and they were decreed to be secured, as declared in Ambler, 273, "on the 

 [*32]  general rule of the court;  [**12]  " but no case has been found, where, without an allegation of danger or misconduct, a legatee for life, as in this case, has been decreed to give security on "the application of those having an interest in remainder; if there be such a case, it has escaped our researches." So in 2 Kent's Com. 285, Chancellor Kent, speaking upon the same subject says, "the interest of the party in remainder in chattels, is precarious, because another has an interest in possession; and chattels, by their very nature, are exposed to abuse, loss and destruction. It was understood to be the old rule in Chancery, that the person entitled in remainder could call for security from the tenant for life, that the property should be forthcoming at his decease; but that practice has been overruled. Ld. Thurlow said, that the party entitled in remainder could call for exhibition of an inventory of the property, and which must be signed by the legatee for life, and deposited in the court; and that is all he is ordinarily entitled to. But it is admitted, that the security may still be required in a case of real danger that the property may be wasted, secreted or removed." In Roper on Leg. 231, we find [**13]  the following remarks, "it seems to have been the ancient practice of the court of Chancery to require the person entitled to the partial interest, to give security to or for the benefit of the legatee appointed to succeed him. The practice, however, became gradually altered as above stated, upon a conviction that requiring from the first legatee only an inventory of the property specifically bequeathed, was attended with more equal justice to both legatees. Besides, as the testator had thought proper to entrust the first legatee with a personal use of the articles for life, it was not for the court to destroy that confidence except under special circumstances. But if such circumstances be shown and proved, as would make it dangerous to trust the chattels in the hands of the first legatee, without taking a sufficient security, as in the instance of insolvency, such security will be required." He then adds, that 

 [*33]  Ld. Thurlow had ruled that there ought to be danger in order to require security. It is true that where the bequest to the legatee for life is of a sum of money, the reason for requiring security from the legatee for life, may be stronger than in the case [**14]  of a bequest of specific chattels; but we do not think, that the court ought to exercise an arbitrary power of requiring security in such a case, where the testator has required none, unless there be some evidence, that the responsibility of the legatee for life has been in some degree impaired or altered by a change of circumstances, since that confidence was reposed. In most, if not all the cases, where the security has been required, it has been where the fund was in the hands of the executors; in such cases the court will order the executors to give security, or in default to pay the legacy into bank, as was done in 2 Dickens 568. So in Ambler's Rep. 273, the case was, a "bill for security of a legacy which the defendant, the executor, was to pay at the end of ten years from the death of the testator; and though no particular reasons were assigned, as wasting assets, or insolvency in defendant, yet decreed on the general rule of the court by Sir Thomas Clarke, master of the rolls, who sat in the absence of the lord chancellor. We think we should not conform to the plain and manifest intention of the testator in this case, by requiring the legatee for life to give security,  [**15]  unless there be some proof that the interests of the legatees in remainder are in danger, or in default thereof of ordering the fund to be taken out of his hands. It is true, he is in this case the administrator with the will annexed; but by his settlement with the Orphans court, the fund is placed in his hands as legatee, and in that capacity alone does he now hold it, and not in his representative character. During his life the entire and absolute interest in the money which is the subject of the bequest, is vested in him: he is clothed with no trust for the benefit of the complainants who have no right to have the fund invested for their use, until the expiration of his life estate. They have therefore no claim to the interposition 

 [*34]  of this court, unless they can show that by suffering the fund to remain in his hands, and in the language of the will, at his disposition, their residuary interests will be put in jeopardy. In such a state of things, if they should be made satisfactorily to appear, it would, no doubt, be the duty of this court to take the necessary steps to carry the intentions of the testator fully and completely into effect. But we think that according to [**16]  the well established principles of equity, the complainants are entitled to the discovery, as prayed by their bill, of all such sums of money or property as may have come to the hands of the defendant, and that for the purpose of obtaining such discovery, the defendant should be compelled to answer their bill of complaint; we also think that the balance of two thousand and ninety-two dollars and sixty-two cents, admitted to be in the hands of the defendant, and unappropriated to the use and benefit of the children of the said Jeremiah L. Boyd, as well as any other money or property belonging to the estate of the late William L. Boyd, exclusive of the ten thousand dollars, which may appear to have come to his hands in the manner specified in the will, and which may not be necessary for the payment of debts, ought to be decreed to be invested for the benefit of the children of said Jeremiah L. Boyd, according to the provisions of the will of the said Willlam L. Boyd. If, moreover, the complainants have any merits in their case, and are entitled to an indemnity against loss or injury, by reason of actual or impending danger, they will have an opportunity of evincing it [**17]  by an amendment of their proceedings, and by furnishing the necessary evidence of that fact. For the attainment of that object, should the security of their interests require it, this court will pass an order remanding the case to the court of Chancery, where such measures may be adopted by the complainants, as justice and equity may require.
CASE REMANDED TO THE COURT OF CHANCERY.  

18 of 43 DOCUMENTS 

JOHN DIFFENDERFFER vs. WINDER, et ux.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 311; 1831 Md. LEXIS 21 

December, 1831, Decided 

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

On the 8th August, 1825, the appellees, William S. Winder, and Araminta his wife, filed the present bill against the appellant, and Amelia, Michael, and Charles R. Diffenderffer, the minor children of the appellant, charging, that in the year 1805, a certain Charles Rogers being seised of a considerable real estate in the city and county of Baltimore, duly made his last will and testament, and without revoking the same, departed this life at the close of the said year, leaving four children, to wit, Ann Martin, Mary Lee, Catharine Rogers, and Sarah Bailey, the mother of the complainant, Araminta. That the testator devised his estate to certain trustees, to hold the same upon the trusts by the will disclosed, and also devised all his real estate fronting on Baltimore and Calvert streets, except forty feet at the north, to be divided into three equal parts by the trustees, and to be by them held, to, and for, the sole and separate use of the testator's three youngest daughters, Ann, Mary, and Catharine, during their natural lives, as tenants in common, free from the control of their then, or future husbands, and after their death, then [**2]  in trust for the children of such daughters as tenants in common, and by said will made the following devise. "The residue of my real estate situate in the city of Baltimore, or elsewhere, it is my will and desire, that my said trustees, and the heirs of the survivor of them, hold the same in trust to and for the sole and separate use and behoof of my said three youngest daughters, Ann, Mary and Catharine, as tenants in common, without the control or interference of any future or present husband, each to receive the rents and profits of the same, and to give receipts, either to the tenants, or my trustees, and from and immediately after the decease of each of my said three daughters, then in trust, to and for all and every of the child and children of said daughters, their heirs and assigns, as tenants in common, such child or children to have the share of its, or their parent; to wit, the one-third part of said last mentioned premises, leaving the two-thirds to my surviving daughters, and in case of the death of two of them, then leaving the one-third to the survivor; the remaining two-thirds vesting in the issue of my deceased daughters, per stirpes;" and further devised, "If any [**3]  of my children, to wit, Sarah Bailey, Ann Martin, Mary Lee, or Catharine Rogers, die without leaving issue at the time of their death, or if leaving issue, they die without issue before they arrive at the age of 21 years; it is my will that my trustees, and the survivor of them, &c. hold his, her, or their share or shares, if more than one, in trust, to and for all my surviving daughter or daughters; and the issue of any daughter, is to be considered as a surviving daughter, and to represent the mother or parent per stirpes; where any limitation in this will is made to children or daughters, my meaning is, that the same comprise their issue, that is, my grand, great grand-children, and so in infinitum; and they are to take per stirpes, to wit, issue, to take any one of my daughter's share, it being my intention that no one part, or share of my property, on the death of any of my daughters, shall go to the surviving sister, as long as children, or issue shall represent any of my deceased daughters," as by reference to the will exhibited with the bill appears. That the said Ann Martin and Mary Lee, have departed this life, without leaving any children or issue whatever. That the said [**4]  Sarah Bailey hath departed this life, leaving the complainant Araminta, since married to the other complainant, her only child and heir at law. That Catharine Rogers married John Diffenderffer, (the appellant) by whom she had four children, one of whom died unmarried, and without issue, and Amelia, Michael, and Charles R. three of the defendants are her surviving children, all of whom are minors, and that Catharine, the mother is dead. That since the death of the said Ann Martin and Mary Lee, the said John Diffenderffer asserting that his children are entitled to the whole of the property mentioned in the several devises, hereinbefore stated, has taken possession of all such property, rented out the same, and received the rents and profits thereof, to a large amount, to the exclusion of the complainant, Araminta, who as the complainants charge, is entitled to one-half of the shares belonging to the said Ann Martin and Mary Lee, the children of said Diffenderffer being entitled to the other half. The bill further stated, that the trustees named in the will have refused to accept the trust, and none others have been appointed by any competent authority. That frequent applications have [**5]  been made to Diffenderffer for an account of the moneys received by him, and a discovery of the property to which Ann Martin and Mary Lee were entitled under the aforesaid will, and where the same is situated; and for a fair and equal division thereof, which has been refused. The bill sought information on all these subjects; and prayed that Diffenderffer may come to a full and fair account for the rents and profits of said property, and for a division of the same, and for further relief.

The answer of the appellant admitted the death of Charles Rogers, the testator, as stated in the bill, and that complainants exhibited a true copy of his will. That he left four children as stated, and that Catharine Bailey, one of them is dead, leaving the complainant, Araminta, her only child, and heir at law. The marriage of the complainant is also admitted; and that Ann Martin and Mary Lee have departed this life without issue; the former on the 5th of May, 1807, the latter on the 21st of January, 1808. That Catharine Rogers intermarried with the respondent, and that she has since died, to wit, on the 30th June, 1818, leaving four children, one of whom thereafter died, as charged in the bill.  [**6]  The answer then states, that the trustees refused to accept the trust as stated, in consequence whereof, an application was made on behalf of the parties interested, to have a trustee appointed to execute the trusts of the will; that thereupon one Samuel Vincent was appointed by the Chancellor some time about the year 1806, for that purpose, who took upon himself the duties of said appointment, and continued to discharge them up to the year 1815, when from the infirmities of age and disease, he became incapable of executing them further. That Vincent from time to time, settled his accounts in the Court of Chancery, and paid over to this defendant sundry sums of money received from the said trust fund, on account of the distributive share of his wife; by which, and by an account stated by the auditor of the Court of Chancery, it will appear, that there remained a large balance due to his said wife, whilst the other parties received more than their proportions. The answer further states, that when said Vincent became incapable as before mentioned, from further fulfilling the duties of trustee, he required this defendant to take possession, and receive the rents and profits of that part [**7]  of said trust estate, which belonged to his wife, and descended to her children as aforesaid. That the defendant accordingly took possession of the property on Calvert and Baltimore streets, devised as aforesaid in trust, for the benefit of the said Ann Martin and Mary Lee, and the said Catharine Rogers, (married to defendant) and also of sundry ground rents, devised in the same way, which he is advised he had a just and legal right to, by virtue of the aforesaid will, and the death of Ann Martin and Mary Lee, upon which the said estate, so taken possession of by him, descended to the said Catharine, and after her death, to her aforesaid children. That from the 16th of January, 1815, to the 28th of November, 1825, he hath received, deducting sundry disbursements, for taxes, repairs, &c. the sum of $ 24,149 35 1/2 of which he hath a particular account, ready to be produced when necessary in the future progress of the cause. That he did not take possession of, or receive the rents and profits, of any other of the estate of the said testator, than as stated above, &c.

Upon exceptions to the above, an amended answer was filed, exhibiting a particular account of the receipts of, and [**8]  expenditures by, the defendant, on account of said estate.

The infant defendants answered by their guardian, denying all knowledge of the facts stated in the bill, and putting complainants to the proof of the same.

Afterwards by consent of parties, the defendant, John Diffenderffer, at March term, 1828, filed an amended answer, exhibiting a deed executed by Ann Martin, and Alexander Martin, her husband, dated the 8th of October, 1806, to a certain Levin P. Barnes; and a deed from the said Barnes, dated on the first day of April, then following, to a certain William Hickborn, whereby as he alleged the entail of the estate was docked, and the said Hickborn became, and was seized of an absolute estate therein in fee simple, in trust, for the sole, and separate use of the said Ann Martin; and also the last will and testament of the said Ann, duly executed, devising to certain persons therein named, the whole of her interest and estate in the said premises, to the exclusion of the complainants, or either of them.

A commission issued to take testimony, and interrogatories, were filed by the complainants, to be propounded to the defendant John Diffenderffer. In reply to these [**9]  he stated--that the accounts heretofore filed by him in Chancery, will show the amount, and how, when, and from whom, he received the rents and proceeds of the estate of Charles Rogers, of which he was appointed trustee by the Chancellor, he has been at all times ready, and willing to account for, and pay over the balance which may be due, upon the said trust. He has at different times during the said trust made purchases of stock in various public institutions, by many of which he has lost large sums of money. He kept a separate, and distinct account of the rents received from said estate in his own books, though he did not make a separate deposit of them in bank, which could not be done, as the greater proportion of them was received in small sums, of ten, twenty, fifty, or one hundred dollars, and occasionally larger sums; that the moneys so received were deposited with his own in bank, and drawn for in the same way; and that he had at all times, a large cash balance in his favor in bank, for which he received no interest; and that he could, and would at all times have paid on demand, any thing due to said trust estate. All accounts made out by him, against the debtors of the estate,  [**10]  were in the name of the heirs of Charles Rogers, expecting to account with, and pay over to them the rents so received. The respondent had been advised, and believed, that the property belonged exclusively to his own children.

BLAND, Chancellor, (March term, 1828.)

After an attentive consideration of the will of the late Charles Rogers, upon the true construction of which, this controversy entirely rests, it is my opinion that he devised the property mentioned in the complainant's bill, to his daughters for life, with remainder to their children in fee simple, and upon the death of any one daughter without children, then her share was to go to the survivors, and their children. There is nothing in this will, which shows it to have been the intention of the testator, that his daughters, or their issue, should take an estate tail only. All four of his daughters are now dead, and two of them, Ann and Mary, have left no issue, consequently the property in the proceedings mentioned, must pass in two equal parts to the testator's grand children, the one-half part to the complainant, Araminta, as the daughter and sole heir of the late Sarah, and the other half part, to be equally [**11]  divided, among Amelia, Michael, and Charles R. Diffenderffer, as the children and heirs of the late Catharine. The bill prays for a partition of the estate, and for an account of the rents and profits; these prayers will be granted. It was thereupon, (April 7th, 1828,) adjudged, that a commission issue to make partition accordingly, and the defendant was decreed to account, &c. It was further ordered, that the auditor state an account between the parties upon the proof then in the cause, or which might thereafter be introduced.

On the 8th of November, 1828, the auditor reported, that upon an examination of the proceedings it appears, that by an order passed on the 4th April, 1806, one Samuel Vincent was appointed trustee, to carry into effect the will of Charles Rogers; that he bonded, and acted as such, until 1814, when he resigned in favor of the defendant, John Diffenderffer. It does not appear that said Diffenderffer was ever formally appointed trustee, but he has been recognized as such by the court, in several orders, and as trustee, admits that he has received rents and profits to a large amount. It also appears that said Vincent, as trustee, returned an account of his [**12]  receipts and disbursements, with his vouchers, which were referred to the auditor, and on the 23d December, 1818, sundry accounts were reported, but they yet remain undisposed of--with this report five accounts were filed.

Account (A) stated according to the instructions of the trustee's solicitor, charged him with all his admitted receipts, and allowed a commission thereon of ten per cent. also all his expenses, for taxes, repairs, &c. and the sum of $ 2578,78, on the ground that an equal sum had been paid by the former trustee, to the other devisees, Ann Martin, Mary Lee, and Sarah Bailey, out of the rents and profits received by him, over and above their respective shares thereof.

Account (B) also stated in conformity with the defendant's instructions, differs from the first, only in charging the trustee with interest on the balance in his hands, at the filing of the bill; yearly rests are made, and interest allowed on the balance of principal in hand, at the end of each year to the time of taking the account.

Account (C) stated according to complainant's instructions, disallows any commission to the trustee, and credits him only with his disbursements, for repairs,  [**13]  taxes, &c. Yearly rests are made, and interest charged on the balances in the trustee's hands, at the end of each year.

Account (D) is stated according to the auditor's views of the justice of the case, and like account (C) makes annual rests, charging interest on the balances, and allowing the trustee a commission of ten per cent. Exceptions were reciprocally filed by the parties to these accounts.

BLAND, Chancellor, at September term, 1829, passed the following decree:

This case standing ready for hearing on the exceptions to the auditor's report, and for final hearing on the decree to account, the solicitors of the parties were fully heard, and the proceedings read and considered. By the decree of the 7th of April, 1828, the extent of the interests of the respective parties was determined. A partition of the real estate was directed, which has been finally made accordingly; and it was also ordered that the defendant, John Diffenderffer, render a full and true account of the rents and profits of the property in the proceedings mentioned, during the whole time the same has been, or may remain in his possession or under his control, and the case was sent to the auditor [**14]  with directions to execute this decree to account, who has reported several statements accordingly. And the only matter now to be determined is, whether any, or which one of those statements is correct; and the amount which the defendant, John Diffenderffer, ought to be decreed to pay to each one of the other parties to this suit. The bill states that the trustees named in the will of the late Charles Rogers, expressly refused to accept the trust, and are now dead, and that no trustee to carry it into effect had been appointed by any competent authority. But the defendant, John Diffenderffer, in his answer, has referred to the record of the case in this court, of Sarah Rogers, et al. vs. Merryman and Smith, on a petition filed on the 27th of February, 1806, from which it appears that by a decree in that case, passed on the same day, Nicholas Hopkins was appointed a trustee, and on his declining to act, Samuel Vincent was appointed a trustee for the purpose of carrying the will into effect, on the 4th of April, 1806, who gave bond as such, and acted for some time. That after the death of Sarah Rogers, the widow, and after the death of two of the daughters of the testator, Ann and Mary,  [**15]  without issue, the trustee, Vincent, made a statement of his receipts and disbursements on oath, upon which the auditor reported two statements, one shewing the balance in the trustee's hands due to the legal representatives of Charles Rogers, viz: $ 2889 47, and the other shewing the balance due to the representatives of Sarah Rogers, viz: $ 227 83; which report and statements were, by an order of the 12th September, 1810, confirmed, and by a subsequent order of the 15th of December, in the same year, it is said, "that since the above order of the 12th of September, a report has been made by the trustee of the matters directed therein, by which it appears that the debts of Charles Rogers had been paid, except an account of small consequence, and the executors of Sarah Rogers have informed the court, that they wait for the sanction of the account rendered by the trustee--on this part of the case, the trustee is authorized and directed to pay to the executors of Sarah Rogers the sum reported due to her representatives, being $ 227 83; as to the balance due to the heirs, the trustee is authorized and directed to pay one-fourth part thereof to Sarah Bailey, and to take her separate receipt [**16]  therefor, according to the will of Charles Rogers, and one-fourth part to Catharine Diffenderffer, taking her separate receipt therefor. For the two other fourth parts, a further order will be given on the determination of the appeal in the suit mentioned in the report." Some years after which, the trustee, Vincent, in a letter dated on the 23d of November, 1814, addressed to the Chancellor, says, "I inform you of my resignation of the trust in the estate of the late Charles Rogers, and have given it into the hands of Mr. John Diffenderffer, one of the heirs at law." There does not appear to have been any order passed on this resignation. But on an application, dated on the 20th of December following, made by John Diffenderffer, in which among other things, he says, "on examining the account of Mr. Samuel Vincent, trustee of the late Charles Rogers' estate, I find that he has charged a considerable sum of money to Sarah Bailey, Ann Martin, and Mary Lee; it appears to me by the will of the late Charles Rogers, they were not to receive, or entitled to any, till his debts were paid, which was completed on the 9th of April, 1808." Upon which, in an order of the 25th of March, 1815, it [**17]  is said, "on the application of John Diffenderffer, who married one of the heirs, and on the resignation of Samuel Vincent, the trustee, the Chancellor has examined the former proceedings. Before any further order can be made, it will be necessary for him to be furnished with a transcript of the proceedings in the suits by Mrs. Bailey and Mrs. Diffenderffer, which were carried to the Court of Appeals, as mentioned in the report of Samuel Vincent." And by an order of the 8th of July, 1816, it is said--"It being represented that there is an error in the report, as to the suits in the Court of Appeals, mentioned in the order of the 25th of March, 1815, the auditor may proceed to examine the reports and vouchers, without waiting for the transcripts, and report thereon, giving notice to the former and present trustee." From all which I take it to have been finally settled by the judgment of the court, in the case of Sarah Rogers and others vs. Merryman and Smith, to which the widow and the four daughters of the late Charles Rogers, were all parties; first, that the debts of the testator had been all properly and correctly paid by the late trustee, Vincent, and that a share of the surplus,  [**18]  left after their payment, having been ordered to be paid to Catharine Diffenderffer, who had been a party to that suit before her marriage, is conclusive upon her and those claiming under her. Because so long as those orders of the 12th of September, and 15th of December, 1810, remain in full force, (and they are not now revisable in any way) she, nor any one claiming under her, cannot be permitted in any way to question the correctness of the manner in which the debts of the late Charles Rogers were paid, which has been so distinctly noticed, considered and confirmed by those judgments of the court. And in the next place, that it has been finally determined by the judgment of this court, as indicated by the orders of the 25th of March, 1815, and the 8th of July, 1816, that this defendant, John Diffenderffer, was to be considered thenceforward as the trustee, for the execution of the will of the late Charles Rogers; and that he had succeeded to that trust under the authority of this court, immediately after the resignation of Samuel Vincent, on the 23d of November, 1814. These positions which have been established in that case, appear to me to furnish a very satisfactory answer to [**19]  the claim of the representatives of the late Catharine, to be substituted for, and allowed to take the place of the creditors of the late Charles Rogers, on the ground of their having been improperly paid with their funds, and upon that ground to have certain sums withheld, for their use, from the distribution now about to be made; and also to the objection that John Diffenderffer is here claiming only, as the natural guardian of his own children, and in opposition to the plaintiffs; since those proceedings shew that he stands here as a trustee, constituted by the authority of this court, for the benefit of all the devisees under the will of the late Charles Rogers.

But passing over all the proceedings and final adjudications in that case of Rogers and others vs. Merryman and Smith, let us return to the decree in this case of the 7th of April, 1828, by which, the defendant, John Diffenderffer, has been called upon to account for the rents and profits, for the whole time the property has been in his possession, or may remain in his possession. The statements reported by the auditor, and the exceptions of the parties to those statements, present two distinct subjects for the consideration [**20]  of the court. First--the claims and pretensions of the representatives of the late Catharine; and secondly, the allowances and liabilities of this defendant, John Diffenderffer. It has been urged that the debts of the late Charles Rogers were paid contrary to the directions of his will by the trustee, Vincent, out of rents and profits, which ought to have gone to the late Catharine; and consequently, that she, or her representatives, to the extent of the rents and profits to which she was entitled, and which have been so misapplied, ought now to be allowed to take the place of those creditors, as against those funds in the hands of this trustee, and which are now about to be distributed. This stand is taken upon the ground of substitution, and it can only be maintained by means of those principles, by which a surety, or one who has been placed in the condition of a surety, is allowed to take the place of the creditor against the principal debtor; or by the help of those principles by which securities or assets are marshalled, so as to satisfy all, or to leave the loss fall where it must rest, according to the positive rules of law, or by the aid of the general principles of equity,  [**21]  arising out of some fraud or injustice practiced or participated in by the plaintiffs, or those under whom they claim. It is a well settled general rule, that no one can be allowed to intrude himself upon another as his surety: and, therefore, if a man voluntarily pays the debt of another, without any agreement to that effect with the debtor, he cannot take the place of the creditor, or in any way recover the money so paid, of the debtor. Because the law does not permit one man thus officiously, and without solicitation, to intermeddle with the affairs of another. Stokes vs. Lewis, 1 T. R. 20. The only exception to this general rule is, where, on a bill of exchange being dishonored, a third person, not a party to it, may pay it for the honor of the drawer, or any of the endorsers--and the reason of allowing this exception is, that it induces the friends of the drawer or endorsers, to render them this service, and by that means preserve the honor of commerce, and the credit of the trader. Chitty on Bills, 164. But where one by express contract becomes bound as a surety for the payment of the debt of another, or as an insurer against loss, then, if the surety or insurer pays the whole [**22]  debt, or reimburses the loser, he thereby entitles himself to demand a full assignment, or subrogation of all the securities of the creditor, or insured, and has a right in all respects, to be substituted for the creditor or insured, so as to enable him to obtain reimbursement from his principal. Poth. Ob. p. 2, Ch. 6. Art. 4. Coop. Inst. 612, 420. Randall vs. Cochran, 1 Ves. Sr. 99. This right of a surety to a certain extent, has been affirmed by our act of 1763, ch. 23, sec. 8. And this court has so entirely approved of the doctrine, as to allow a surety who had paid the whole purchase money, to have the benefit of the equitable lien of the vendor. Melay vs. Cooper, 13th Feb. 1804; and also to allow a surety on a custom-house bond, who had paid the whole debt, to take the place of the government, and thus to secure to himself the high and overruling preference, to which such a creditor is entitled. Mickle vs. Taylor, 1806. These principles in regard to those who stand properly in the relation to each other, of principal debtor and surety, have been extended for the benefit of an executor or administrator, who may have been induced through mistake, to pay the debts of [**23]  the deceased, beyond the amount of the assets, which came to his hands, in which case, he has always been allowed in this court, as in England, to take the place of the creditor, and obtain reimbursement out of the real assets of the deceased. And if the debt so overpaid, was on a judgment against the deceased, operating as a subsisting lien upon his realty, the executor or administrator is permitted to take the place of such judgment creditor, and to have a preference in the distribution of the real assets over creditors of inferior grade. Street vs. Cook, 1809. Robinson vs. Tonge, 3 P. Will. 400.

This doctrine of substitution embraces only those cases where there is a principal debtor, and a surety by express contract; or where for the benefit of commerce a man is allowed voluntarily to place himself in the condition of a surety; or where he had by mistake, as in the case of an executor, made payment as if it had stood in that situation. Now before any of the principles upon this subject, can be brought to bear upon the case under consideration, it must appear that the plaintiffs, Araminta, or those under whom she claims, were the principal debtors, or that the [**24]  trustee, Vincent, was the principal, and that Catharine, or those claiming under her were their sureties. And that those claiming under Catharine, were now here, asking to be reimbursed as such, out of the funds of their principal now in the hands of the court. But the assumption of any such statement would be in direct opposition to all the proofs in the case. Vincent was a trustee, appointed by this court for the benefit of all concerned in the estate of the late Charles Rogers, and if he misapplied the rents and profits, which came to his hands, he alone is responsible. If this court were now to make good to Catharine's representatives, any amount of the rents and profits, which had been misapplied by Vincent to their prejudice, out of the proportion of the funds now about to be distributed, to which the plaintiff, Araminta, is entitled, it would be in effect, to treat her as the principal debtor, for whose benefit among others, Vincent was not merely a trustee, subject only to the order of this court, but who was in fact her own proper agent; or it would be to consider Araminta as the surety of the trustee, Vincent. But there is nothing in the case to warrant the placing of Araminta,  [**25]  in any such condition of responsibility; and therefore the representatives of the late Catharine cannot sustain themselves, in the stand they have taken, by any principles derivable from the case of a principal debtor, and surety.

But the representatives of the late Catharine insist on having the securities, or these assets now about to be distributed, so marshalled, as to reimburse them to the amount of their share of the rents and profits, which had been misapplied by the former trustee, Vincent. The marshalling of securities is only made where the debt is so secured, as to give the creditor the means of obtaining payment out of two funds, and other creditors can reach only one of them. In such case the court will compel the creditor who holds the more comprehensive security, to obtain payment as far as practicable, out of the fund which the other creditors cannot reach. So as to leave the other fund to be distributed among the creditors holding inferior securities. 1 Mad. Ch. 250. But there is no sort of analogy between the case of creditors, whose securities may be thus marshalled for the benefit of all, and without injury to any, and the case now under consideration. The [**26]  plaintiff, Araminta, and the representatives of the late Catharine, stand precisely in the same situation; not as creditors seeking payment by way of preference, or otherwise, from the assets of a debtor; but claiming the distribution of a fund to which they are equally entitled. Marshalling of assets respects two different funds, and two different sets of parties, where one set can resort to either fund, the other to only one. As where there are real and personal assets, and judgment, and simple contract creditors, the real assets will be applied to the satisfaction of the judgment creditors, so as to leave the personalty to satisfy the debts due by simple contract. 1 Mad. Ch. 615. But here there is but one fund, and one set of claimants, who all deduce their titles from the same fountain. There is then nothing to be drawn from the principles of equity, in relation to the marshalling of securities, or of assets, which can in any manner aid the representatives of the late Catharine, in maintaining the stand they have taken. It has, however, been argued, that the amount misapplied by the trustee, Vincent, came to the use of those under whom Araminta claims, and therefore that it ought [**27]  to be deducted from the share, now about to be awarded to her. If it has been shown that Vincent had fraudulently misapplied the funds, and that Araminta, or those under whom she claims had participated in the fraud; or that Vincent had paid money properly belonging to the late Catharine, or her representatives, to Araminta, or those under whom she claims, who had received it, knowing it to be such, then there would have been a strong equitable ground, for deducting the amount so received, for the benefit of the representatives of the late Catharine, from the amount now about to be awarded to Araminta. But there is no proof whatever, of any fraud in Vincent, or of any participation in it by Araminta, or those under whom she claims, or of their having received any sum of money, knowing it to be the money of the late Catharine, or that it was money to which they were not justly entitled. Upon the whole, therefore, I am of opinion that no deduction whatever, can be made from the share to which the plaintiff, Araminta, is entitled, because of any misapplication of the rents and profits, in payment of the debts of the late Charles Rogers, or on account of any other misapplication of them [**28]  by the former trustee, Samuel Vincent.

Having thus disposed of the claims of the representatives of the late Catharine, it only remains to determine the extent of the allowances and liabilities of the defendant, John Diffenderffer. It has been argued on his behalf, that he cannot be considered as a trustee, because he took possession of this property in no other character than as the natural guardian of his children. Admitting that he did so, he himself states, that he held their right under the will of their grand-father, and so far according to his own showing, he took possession of this property, in the character of a trustee; and as such he undertook at his peril, with the title deeds of his children before him, to claim and hold on their behalf, a much larger interest than that which belonged to them. He had thus confessedly assumed no higher character, than that of trustee for those who had the right, and now that it clearly appears, and has been determined by the decree of this court, that the whole right was not in his children, he certainly cannot be allowed to assume a new character, and to retain rents and profits, which he does not pretend to have received as his own,  [**29]  but for the use of others, who it has been determined have no right to them, and who cannot be allowed to receive them, or be held accountable for them. The decree of the 7th April, 1828, is however, conclusive upon this subject. Under that decree he has been called upon to account for the benefit of those, the extent of whose interests has been determined by it. But it appears from all the proceedings, that he has had in all respects, as complicated and troublesome an estate to deal with, as ever was committed to the management of an executor or administrator. His receipts have been very numerous, many of them small, and the collections and disbursements, it is evident, must have been attended with much trouble, and therefore, upon every principle of analogy, (apart from considering him as the successor of Vincent, to whom ten per cent. had been allowed,) I am of opinion that ten per cent. commission is a reasonable compensation, and I shall therefore ratify the statement of the auditor which makes that allowance.

It is contended on behalf of John Diffenderffer, that he is not chargeable with interest at all, while on the other hand, compound interest is claimed of him. Legal [**30]  interest is the measure of damages, which the law allows in all cases for the detention of money, which the holder is made to pay, where he is in any default in not paying or applying the money in his hands, as he was bound to do. 2 Fonb. 423. The general rule is, however, that interest is not given upon interest; and therefore in this court when interest is allowed, it is computed by the auditor, from the time the money became due, up to the time of stating the account, and the decree is made for the whole amount with interest only on the principal sum, from that time till paid; by which mode of computation and decree, compound interest is excluded, and this appears to be the rule in Virginia. Sheppards' Ex. vs. Stark, et ux. 3 Munf. 41.

It has long been the established course of this court, according to the rule laid down by the Court of Appeals, in taking an account of rents and profits, to charge the party with interest thereon, from the respective times they were received, Davis vs. Walsh, 2 Harr. and Johns. 329. In this case, one of the accounts of rents and profits has been stated with annual rests, at the instance of the plaintiffs, and the statement has not [**31]  been objected to. It is more favorable to the defendant, John Diffenderffer, than to charge him with interest according to the rule of the court, from the time each sum was received, and therefore the computation of interest from the rest, will in this case be approved.

But it is objected, that interest should not be charged on the interest computed as a portion of the balances, at each of those rests. From all that has been said upon this subject, I take it that interest upon interest, or compound interest, may be charged in three kinds of cases; first, where with the knowledge and permission of the debtor, his whole debt, principal and interest, has been paid by a third person, or his surety, because as to such third person or surety, the interest is the same as the principal sum lent. 2 Fonb. 438. Secondly, where a trustee or holder of money has been directed, and undertakes to invest the sum placed in his hands in a way to make it productive, and fails or refuses to do so, he shall be charged with compound interest. As where a trustee who had been appointed by a decree of this court to make sale of certain real estate, was ordered to invest the proceeds of sale, then in his [**32]  hands, in bank stock, and that he should in like manner invest the dividends arising from such investment; and on his failing and refusing to do so, the auditor was directed to state an account, charging him with interest, which he was ordered to bring into court, with interest on the interest so charged, until brought in, which order was, upon an appeal, affirmed. Brewer vs. Hanson, 1 Harr. and Gill, 12. And thirdly, where a trustee has received rents and profits, which he should have applied so as to be productive, or towards the maintenance of devisees, but failing or refusing to do so, retains and uses the money as his own, in a manner to derive profit from it, there also, he shall be charged with the whole profits he has made from the use of it, or on his failing clearly to shew what those profits were, it will be presumed, that the annual amount of interest has yielded him interest, and he shall be charged with interest thereon accordingly, considering each year's interest as an addition to the capital sum lent or withheld.

The equity of this last rule is founded upon the fact of the beneficial application of the money to the trustee's own use, in violation of his trust,  [**33]  and to the prejudice of the cestui que trust, and therefore it must appear, that the nature of the trust required the trustee to make the funds which came to his hands productive as soon, and to as large an amount, as practicable, in the mode prescribed, or in some other reasonable way at his discretion; or that he was required to apply them to the maintenance or education of the cestui que trust; and it must also appear that he not only failed to do so, but applied the money to his own use, or put it to hazard in a manner in which he did, or might have derived a profit from it. That the trustee was required to invest, or make a beneficial application of the money, may be shown by the terms in which the trust was created. But whether he has applied it to his own use or not, must be shown by proof. Whether the pecuniary ability of the trustee was such as to enable him to pay at any time when called on, is a matter of no consequence, as regards the question of interest. The making of a deposit of this money at a bank as his own, or making purchases with it, or using it in the course of his trade, has been deemed sufficient evidence of his deriving such a profit from it, as to authorize [**34]  the court to charge him with interest upon each annual amount of interest. In the case under consideration, it very satisfactorily appears to have been the duty of the defendant, John Diffenderffer, to have applied the rents and profits received by him, for the benefit of all the devisees of the late Charles Rogers, and that instead of doing so, he deposited them as received, in bank as his own, drew them out, made purchases, and used them for his own use and benefit exclusively. What advantages he derived from those rents and profits, thus mingled with his own money, from the time of their being deposited in bank, has not been shown, but such a course of management must have been very beneficial to himself, and greatly injurious to the devisees. Such a course of conduct by any one, standing as this defendant, John Diffenderffer did, bound to make the funds received by him productive, or constantly useful to those entitled to them, cannot be tolerated by this court. I am therefore of opinion, that he has been correctly charged with interest on the whole amount, including principal and interest, found to be in his hands at each rest. Newton vs. Bennett, 1 Bro. Ch. R. 359. [**35]  Roche vs. Hart, 11 Ves. 59. Raphael vs. Boehm, Ib. 92. Raphael vs. Boehm, 13 Ves. 408. Raphael vs. Boehm, Ib. 591. Ringgold vs. Ringgold, 1 Harr. and Gill, 12. State of Connecticut vs. Jackson, 1 Johns. C. R. 14. Schiefflin vs. Stewart, Ib. 624.

Decreed, that statement (D) be ratified and confirmed, and the others rejected--and that John Diffenderffer pay unto the plaintiffs, and to each of the other parties, their costs.

From this decree both parties appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

D, in 1815, voluntarily assumed a trust over certain real property, to a part of the rents of which the complainants were entitled, and from that period until 1828, from time to time, every year, received large sums of money from the estate, which he continually employed in trade and speculation. To the bill against him for an account, he filed more than one defective answer, withholding the discovery sought for. He claimed the whole trust fund, in one answer, as belonging to his wife and children, who really owned a part; while in another, he set up an unfounded stale claim in a stranger, to a part of the fund. He endeavored in the progress of the cause to stifle the inquiry as to the use he had made of the money received, or the profits which had accrued from its use. He neither paid nor offered to pay the c. q. t. complainants any thing. HELD, that under the circumstances he was liable to pay compound interest, estimation on the balance in his hands at the end of each year; and that having kept full and fair accounts of his receipts and expenditures, and in that respect faithfully discharged his duty as trustee, he had not forfeited all claim to commissions, but was entitled to half commission--5 per centum.

Where the Appellate Court reverses the decree of the Court of Chancery, it exercises as it were an original equity jurisdiction, and places that decree upon the record, which the Chancellor ought to have given. Upon cross appeals, therefore, from the same decree, errors of which one party below, since the Act of 1825, could not have availed himself upon his appeal, because not excepted to, may be corrected by this court in remodelling the Chancellor's decree upon the appeal of the other party.

The Court of Appeals will direct an audit to be made, and new accounts stated, where it is necessary to enable them to pass a final decree in the cause.

Accounts stated by the auditor of the Court of Chancery which have not been confirmed by the Chancellor, are no evidence of the truth of the facts assumed by the auditor in stating them.

Where trustees act bona fide and with due diligence, they have always received the favor and protection of Courts of Equity, and their acts are regarded with the most indulgent consideration. Where they have betrayed their trust--grossly violated their duty, or been guilty of unreasonable negligence, their acts are inspected with the severest scrutiny, and they are dealt with according to rules of strict, if not of rigorous justice.  

COUNSEL:
Dulany, for the appellant, (Diffenderffer) contended.

1. That under the circumstances of the case, Diffenderffer was not chargeable with compound interest,--he took possession of the property, believing it to belong to his wife and children. The will does not direct the trust fund to be invested for the purpose of accumulation; nor is there any express declaration that the property was given for the maintenance of the cestui que trusts. There are but two cases in which compound interest was ever charged. In the one, the charge was made upon the ground of fraud; in the other, upon the fact, that the trustee had used the funds for his own [**36]  benefit, the rule being, that an executor or trustee shall make no profit to himself from the estate in his hands. In Schiefflin vs. Stewart, 1 Johns. C. R. 623, Chancellor Kent infers that compound interest has been charged in some English cases, because rests were taken, though such is not necessarily the case. A mere misapplication of funds by an executor, will not subject him to compound interest; he can only be so charged upon the ground of profit, and proof of such profits must be adduced. It is not sufficient that the executor is silent as to the extent of his profits; there must be actual proof that he has made profits equal to compound interest before he can be charged at that rate. This principle is recognised in Ringgold vs. Ringgold, 1 Harr. and Gill, 12--and also in Tibbs vs. Carpenter, 1 Madd. Rep. 162. 1 Chitty Dig. 548. Earl of Hardwick vs. Vernon, 14 Ves. 504. Raphael vs. Boehm, 13 Ves. 411. Bates vs. Scales, 12 Ib. 402. These cases also shew, that although the general rule is, that compound interest shall be charged where the trustee has used the fund, yet the courts always look to the peculiar circumstances of the case, and never but in one case, in England, has [**37]  compound interest been actually decreed. The answers of Diffenderffer to complainant's interrogatories show, that he has not made a profit equal to compound interest; on the contrary, he invested the money in stocks, by which he lost; and he is also shown to have kept by him constantly, large cash balances. Although, therefore, the rule was, that investing in stocks, shall charge an executor with compound interest, upon the ground that he is thus presumed to have made such interest, yet in this case, there is abundant evidence to repel such a presumption. The courts do not charge compound interest as a punishment, but upon the ground of profit; and consequently, if profits equivalent to the interest are not made, the charge cannot be supported.

2. But Diffenderffer is not chargeable with interest at all. He took possession of the property, under the impression that it belonged exclusively to his own children--his answer and the proofs, show this clearly. He was ignorant of the actual cestui que trusts, and the question is, did he use due diligence to inform himself correctly on the subject. The possession of the property was derived by him from Vincent, who had acted in the character [**38]  of trustee, from 1806 to 1814, and who was consequently familiar with all the circumstances of the case. He was the very person therefore, to whom Diffenderffer, as a prudent man, should have applied for information on this subject, and his doing so, repels the idea of any fraud on his part. He was put into possession of this property by Vincent, as belonging exclusively to his wife and children. More than ordinary diligence to obtain accurate information in this respect, cannot be required. Other men, under similar circumstances, would have done as he did. Defendant was acting under the influence of an honest mistake, into which any man of ordinary prudence might have fallen, and therefore he should not be made to pay even simple interest, which is charged upon the ground of negligence. Bruere vs. Pemberton, 12 Ves. 390. 2 Chitty Dig. 1311. 3 Atk. 444. Franklin vs. Green, 2 Vern. 137. Attorney General vs. Corporation of Exeter, 2 Rus. 45. Att'y General vs. Dean and Canons of Christ Church, 2 Rus. 321. The money has been received under a mistake, and therefore does not carry interest, notwithstanding the infancy of the complainant--a claim for interest in such a case, even by an infant,  [**39]  is neither moral nor equitable. The rights of a minor, in a case like this, cannot be different from those of an adult; the error of the defendant is equally a protection against the claim for interest whether the money received by him belongs in fact to an adult or a minor. All the defendant is bound to do in such a case, is to refund the money when the mistake is discovered. Brisbane vs. Dacres, 1 Serg. and Low. 50, 51. The Chancellor decides that Diffenderffer knew that he was a trustee, and if he had acted in that character throughout, then when the real parties were discovered, the fund must be preserved for them. Conduct which might be considered as negligent, in reference to a stranger, would not be so regarded with respect to a wife and children. The motives must be looked to. A husband may use the separate estate of his wife. If her dissent does not appear, he is not responsible for rents and profits. Smith vs. Camberford, 2 Ves, Jr. 698. Methodist Esp. Ch. vs. Jacques, 3 Johns. Ch. R. 78, 79. Squire vs. Dean, 4 Bro. Ch. R. 326. 1 Atk. 269. Powell vs. Hankey and Cox, 2 P. Wms. 82, 83. If the benefit of the trust fund is enjoyed by the cestui que trust, the trustee shall not [**40]  pay interest; though he too, may derive an advantage from it, as in the case of a parent acting as trustee for his children.

3. The evidence shews that $ 2578 77 of money, belonging to Mrs. Diffenderffer, was used by the former trustee to pay debts which were incumbrances on the shares of the other cestui que trusts, and consequently, the appellant in right of his wife, is entitled to a credit to that amount out of the funds of those cesqui que trusts, which have since come to his hands.

Johnson for the appellees, (Winder and wife.)

The question about which it is said Diffenderffer was mistaken, was, whether the whole interest in the devise to Ann Martin and Mary Lee, did not survive to Mrs. Diffenderffer. That question is not now open. The decree of March term, 1828, deciding differently, is not appealed from. All the facts were in the knowledge of Diffenderffer, as appears by his answer; and in 1815, when the trust devolved on him, he took it, as it was held by Vincent, and according to the will of Rogers. He took it avowedly for the benefit of the cestui que trusts--kept a separate account of the receipts, and professes at all times, to have been ready and willing [**41]  to account for them. It is a principle of equity, that a party, who with knowledge, comes into the possession of an estate subject to a trust, takes as trustee, for the benefit of those who actually are the cestui que trusts, and not those whom he may suppose to be. Mech's Bank, vs. Seton, 1 Peters' S. C. Rep. 309. Diffenderffer's situation cannot be better than Vincent's would have been. He claims, and is allowed a commission, as having been substituted for him. All the orders in the Court of Chancery from the resignation of Vincent, recognize Diffenderffer as the trustee, though no decree appointing him can be found. When the bill was filed in August, 1825, the defendant was in possession confessedly as trustee, when instead of a full and frank answer, manifesting a willingness to account, he sets up a title adverse to the complainants, and drives them to except to his answer. The answers show that every difficulty was interposed up to the date of the decree in 1828. It was proved on the part of the complainants, that Diffenderffer used the trust money as his own, and when he was called upon to say what use he had made of it, he refused to say, except that he had some stocks, without [**42]  saying how much, upon which money was lost. But he will not give a detailed and full account, which he certainly could have done, if so disposed. Defendant during the whole time was a trader, and the money not used in buying stocks, was used in his trade, thus putting it to hazard, and pocketing himself the profits, whatever they may have been. When a merchant refuses to disclose his profits, he will be charged with compound interest, if he has used in his trade a fund held by him as trustee. All the cases shew, that a trustee cannot make a profit out of the trust fund, for the benefit of any but the cestui que trust. The case of Ringgold vs. Ringgold, 1 Harr. and Gill, 12, decides that beyond dispute. If the defence set up in the last answer is good against the complainants, it is good against the other cestui que trusts, whose rights the defendant had acknowledged before. The inference then is, not only that he made profits which he was unwilling to disclose, but that he designed, and still designs to keep them for his own benefit. A trustee who is ready and willing to account, and gives every information for that purpose, will be more leniently dealt with, than one whose conduct [**43]  is the reverse. When a cestui que trust, calls on his trustee for the trust fund, he has not only a right to the fund itself, but likewise all the attending advantages. That portion of these rents and profits which belong to the complainant, Araminta, certainly was not used for her support, and it must therefore have been employed by the trustee in his trade, or invested in stocks for his own benefit. We have a right to call for an annual account, and to convert the profits of each year into capital at the end of the year. These profits are the property of the cestui que trusts; and to make the trustee pay only simple interest, would be to allow him to use a portion of their money without interest. If the defendant did not in fact use the money, but kept a separate account of it, he could have shown the fact, and having failed to do so, the inference is against him. Schiefflin vs. Stewart, 1 Johns. Rep. Ch. R. 620, 625. Raphael vs. Boehm, 11 Ves. 92. The fact, that the testator in the latter case had directed an accumulation, does not distinguish it from the case under argument, because the law makes it the duty of a trustee to do so without any such direction. The case of Schiefflin [**44]  vs. Stewart, received the sanction of this court in Ringgold and Ringgold. In the latter case, the trustees were exonerated from the charge of compound interest, solely upon the ground, that it appeared in evidence that they had not made it. If the trustees had used the money in their business, there can be no doubt they would have been so charged. Darne vs. Catlett, 6 Harr. and Johns. 482. It is not pretended in this case that Diffenderffer did not use the fund, and use it beneficially for himself. The allowance of compound interest is to reach the supposed gains of the party, which can be got at in no other way. Deprive the court of this power and you render it powerless, because the cestui que trust can rarely ascertain the actual profits of the party. When a trustee admits he has made profits, but is unable to say how much, he shall be charged with compound interest. Walker vs. Woodward, 1 Russell, 107. Stearns vs. Brown, 1 Pick. 538. Biglow's Dig. 388.

2. The second question is, as to the liability of a trustee to pay simple interest upon trust money used by him. It is conceded that he is bound to pay those whom he knew to be cestui que trusts, and it would seem hard, that [**45]  the unknown cestui que trusts should be in a worse situation. Now it is not pretended that Diffenderffer took possession of this property, believing it to be his own: he admits the contrary in his answer. A party who uses the money of another, is bound, as a matter of law to pay interest for it. Newson vs. Douglass, 7 Harr. and Johns. 417. State use Kirk vs. Fridge, 3 Gill and Johns. 103. It is said, however, that he is not bound to pay the other cestui que trusts, because they were his children, and he was charged with their support. If this were so, it is no reason for refusing interest to Araminta, with whose support he certainly was not burdened. But it is not law with respect to his own children, whose separate estate is not liable for their support, if the father is in a condition to support them. Butler vs. Butler, 3 Atk. 60.

3. With respect to the $ 2578, to which it is said complainant is entitled to a credit, in right of his wife, as being so much of her money, applied to discharge debts which ought to have been paid out of the funds of the other cestui que trusts; it cannot be claimed upon the ground of an over-payment to those persons, because such a claim should be [**46]  preferred against Vincent, the former trustee, or the parties who actually received it. In order to raise this question, two facts should distinctly appear--1st. That debts to that amount were in fact paid--and 2d, not only, that they were paid out of the profits of property specifically devised to Mrs. Diffenderffer, but also that the testator, Charles Rogers, did not leave personal property adequate to the payment of his debts. The claim is, to be substituted for the creditors who have been paid, and of course the rights of those creditors, and none other can be asserted. Gists' adm'r vs. Cockey and Fendall, 7 Harr, and Johns. 134.

Taney, (Att'y General U. S.) in reply.

1. There is no pretence of a wilful abuse of power, or negligence on the part of the trustee, nor that he ever intended the slightest injury or injustice to the cestui que trusts, whom he believed, were his wife and children. The direct purpose to injure persons standing towards him in such relations, cannot be presumed. He insisted that in the whole history of English and American law, but two cases could be found, in which compound interest had been actually charged. It has never, in a solitary instance,  [**47]  been done by this court, and a case like the present, free from fraud, negligence, or the imputation of improper motives, will hardly be selected, as the first one, for the application of so harsh a principle. The general rule is to charge simple interest. Compounding the interest is an exception, and the case of Raphael vs. Boehm, 11 Ves. 92, is in its very terms, an exception. On this point he referred to Tibbs vs. Carpenter, et al. 1st and 2d Madd. 162, 167.

2. As the defendant, for the first time, received notice of the present claim by the filing of the bill, he is not liable for even simple interest, under the circumstances of the case. The property was not taken possession of by him, as his own, nor did he enter as a general trustee of the trust fund, but as the specific trustee, for certain known and named cestui que trusts, for whose benefit alone, can he be considered as having received the property. The obligations of a trustee depend upon the character of his undertaking. In this case he undertook, and merely entered, for the use of those cestui que trusts, whose separate estate he supposed he was receiving from the general trustee. He could not dispute the title of [**48]  those persons, nor could he divert from them to others, the income of that estate. The cases cited show how kindly the court will deal with a trustee who as acted ignorantly, but bona fide, particularly when the mistake has been committed by a person confided in by the Court of Chancery. Not having entered for himself, but for others, it cannot be presumed that he made profits; and in this view of the case, it is immaterial that the cestui que trusts, were his own children. He was as much bound to protect them as strangers. 1 Chitty Dig. 511. Where the trust is for the benefit of a wife, the husband will be presumed to apply it for her benefit, and with her consent, if he mixes the fund with his own, and uses it for the support of the family and in his business--unless objected to by the wife; the husband has a right to employ her trust fund for her benefit. 2 Pierre Wms. 82. It is not true, that in every case, a parent will not be allowed to apply a portion of his child's estate for his maintenance. 3 Atk. 60. And the permitting him to do so, is in harmony with the policy of our laws, which aims as far as practicable, to produce a pecuniary equality in members of the same family.  [**49]  The appellant, Diffenderffer, had a right so to apply the fund, and although he did not act formally as their guardian, yet as he asks a credit for no more than would be sufficient for their comfortable maintenance, a Court of Chancery will protect him.

3. The defendant is entitled to be reimbursed for the $ 2578. It constituted a part of certain debts made by the will of Rogers, a lien on the estates of his daughters Ann, Mary, and Sarah. The property devised by the testator to Mrs. Diffenderffer, was not liable for any part of it. It was an incumbrance on the estates of the others--not merely on the income, but on the land itself. This money was paid by Vincent, out of the funds of Mrs. Diffenderffer, in his life-time; it was not a voluntary payment by her, but by the trustee, and by this appropriation of her money, a charge was removed from the estates of the other cestui que trusts, and the property thereby has devolved on those in remainder, disencumbered of the lien--they have the full benefit of the payment. This money having been paid from rents falling due in the life-time of Mrs. Diffenderffer, the present defendant, her husband, is entitled to a credit for it. As Vincent's [**50]  accounts, settled in the Court of Chancery, show that this money was paid out of the trust fund, it is to be presumed not only that they were in fact so paid, but that evidence must have been offered to the Chancellor of a deficiency of personal assets. An account thus settled in the Court of Chancery, has the same prima facie effect, as a settlement by an administrator in the Orphans Court.  

JUDGES:
The cause came on to be argued upon the cross appeals before BUCHANAN, Ch. J., ARCHER, and DORSEY, J. BUCHANAN, Ch. J., dissenting.  

OPINIONBY:
DORSEY 

OPINION:

 [*340]  DORSEY, J., delivered the opinion of the court.
In disposing of the first point on which a reversal of the decree of the Chancellor has been urged, it is unnecessary for this court to consider, whether the credit insisted on by appellant, of $ 2578 77, alleged to have been paid by the former trustee, (in satisfaction of the debts due by Charles Rogers,) out of that portion of the trust fund to which Mrs. Diffenderffer was entitled, ought not to have been discharged by the proceeds of the trust estate, on which those debts were conditionally a lien, accruing before the death of Mrs. Bailey: because it does not appear by [**51]  the record before us, or any of the proceedings which it refers to, and makes evidence, that the personal estate of the testator was insufficient for the payment of his debts. It has been stated in the argument, that such insufficiency is established by the auditor's statement of the accounts, of the former trustee, made in the year 1818. But to these accounts, no such operation can be given; having never received the Chancellor's confirmation, they are no evidence of the facts they are relied on to prove. This credit therefore was properly rejected.
In discussing the question of interest, it has been strongly contended, that no such charge ought to be made, because Diffenderffer came into possession of the trust property, as the allotment of his wife, under a division of Charles Rogers' estate, made in pursuance of his last will and testament, by Samuel Vincent, the former trustee, without a knowledge of any other persons being entitled or claiming title to any part thereof, and that the first intimation 

 [*341]  of the kind which he received, was the filing of the bill in Chancery, which is now before us. What would be Mr. Diffenderffer's rights in such a state [**52]  of facts, we are not required to determine. He stands not in that predicament before us. It is manifest that Samuel Vincent never did make any division under Charles Rogers' will, of the real estate devised to Mrs. Lee, Mrs. Martin, and Mrs. Diffenderffer, the only property whereof a division was directed;--that every thing done by Hands, and now relied on, as proof of such division, was to point out to Diffenderffer, at the time he took possession of the trust property, the forty feet lot on Calvert street, devised in severalty to Mrs. Bailey. That so far from being in utter ignorance of the rights, or claims of the appellees, until their bill was filed in 1825, he was fully and distinctly notified thereof, by the auditor's statements in 1818, made under his own eye, and as well, at his instance, as at that, of the former trustee. Had he then believed, as he now alleges, that his wife and children were entitled to the whole of the property confided to his charge, what would have been his course with regard to the auditor's accounts? It is so clearly pointed out both by his duty, and his interest, that what it would have been, cannot be the subject of [**53]  a momentary doubt. He would have caused exceptions to be filed, and the rights of the parties interested to be definitively settled. His failure to have done this, cannot be otherwise regarded, than as a recognition of the title of the appellees. He has therefore, upon the grounds upon which he has asked it, no claims to lenity at the hands of this court.
Where trustees act bona fide, and with due diligence, they have always received the favor and protection of Courts of Equity; their acts have been regarded with the most indulgent consideration. But on the other hand, where they have betrayed their trust; where they have grossly violated their duty; where they have been guilty of unreasonable negligence, they forfeit all claims to the favor and protection of the court. Their acts are inspected with 

 [*342]  the severest scrutiny, and they are dealt with according to rules of strict, if not of rigorous justice. This course of proceeding, is productive of the most beneficial consequences, and is founded on the soundest principles of policy. It is the surest, perhaps the only means of securing the fidelity, vigilance, and integrity of those, to whose hands are committed the interests [**54]  of the weakest, and most unprotected portion of the community.
It was held in England, even in the days of Lord Hardwick, that an executor was not chargeable with interest who had used for his own benefit, money belonging to the estate of his testator. Subsequently a more just and equitable principle was adopted. It was determined, that an executor or trustee ought not to derive any advantage to himself from the trust property; and that if he used it as his own, or was guilty of crassa negligentia in not paying it over to, or investing it for the benefit of the cestui que trusts, that he should be charged with the annual interest of four per cent; that being the established interest of the Court of Chancery. At a subsequent period, it being found that these abuses by fiduciary agents still continued, and that justice was not extended to cestui que trusts, by the rule already established, the court went a step further, and decided, that where an executor or trustee used the trust fund, and refused to render an account of the profits, that he should pay an interest of five per cent.; that being the greatest annual interest which the law allowed, and being [**55]  the presumed amount of profits, to the whole of which, if ascertained, the cestui que trust was entitled. At a still later period, a decree was passed, (sanctioned by the opinion of at least three Lord Chancellors) in Raphael vs. Boehm, reported in 11 and 13 Ves., by which not only five per cent. was allowed, but compound interest also, against an executor who had neglected, as directed by the will, to invest money with the interest accruing thereon by way of accumulation, for the benefit of the children of the testator. 'Tis true, that the decision in that case, was made as depending on the peculiar 

 [*343]  provisions of the will, under which the executor acted. But it is equally true, that there was nothing in that will enjoined on the executor, which the law does not impose on him as a duty, without any testamentary injunction on the subject, where money belonging to the deceased's estate unnecessarily, and for an unreasonable time, remains in his hands. And it requires more than an ordinary degree of astuteness, to discern the distinction in a moral point of view, or in the eyes of a court of conscience, between the acts of him, who violates the duties required [**56]  of him by a testament or deed, and him who in regard to the same subject matter, violates the same duties imperatively imposed on him by the established principles of law. But the appellant here, is not even entitled to the benefit of this distinction, if any there be, because, like the executor in Raphael vs. Boehm, his duties are enjoined on him by the same authority under which he derives his powers.
In what has been said respecting the legal obligation of investment by executors or trustees, in whose hands large sums have, without any reasonable excuse therefor, been suffered to remain, we do not mean to say, that compound interest is the indemnity to be made for such negligence. The current of English decisions is against it, and the question is not now before us for adjudication. It is hardly necessary to say that Mr. Diffenderffer, by his own acts, and the recognition of his agency by the Court of Chancery, stands precisely in the same attitude in which he would have stood, had he been a trustee regularly constituted by a decree of that court. The doctrine of Raphael vs. Boehm has been elaborately investigated, and learnedly discussed in New York, by that [**57]  most distinguished jurist, Chancellor Kent, and has been adopted to its fullest extent in the case of Schiefflin vs. Stewart, 1 Johns. Ch. 620, where no directions for investment or accumulation are to be found. The allowance of compound interest prevails in like manner in South Carolina, as will appear by Wright vs. Wright, 2 McCord Eq. 185, where two cases are referred 

 [*344]  to, as having previously decided the same question, viz: Bowles and wife vs. Drayton, 1 Desaus. Eq. 489, and Edwards vs. McMorris, Harper's Eq. Rep. 224. In Massachusetts also, the computation of interest is made on the same principles, as is shown by the case of Robbins vs. Hayward, 16 Mass. 524, in which, where large sums of money had come into the hands of a guardian, and no account had been rendered for many years, there being rents from real estate, and income from public stocks periodically received, it was ordered that an account be settled with a rest for every year, including principal and interest; and the balance thus struck, carried forward, to be again on interest, whenever the sum should be so large, that [**58]  a trustee, acting faithfully and discreetly, would put that sum into a productive state.
Do the facts in this cause present Mr. Diffenderffer's conduct as a trustee, in a more favorable aspect, than that in which appeared the conduct of the several defendants in the authorities referred to? Such a comparison he can have no motive to invite. In Raphael vs. Boehm, the testator died in 1791. The bill was filed against his executor in 1794, so that the funds were in the executor's hands about three years; and it is not shown that he ever used them for his own benefit. Within three months after the filing of the bill against him, he obtained an order for that purpose, and brought into the Court of Chancery the principal part of the money he had received; and in his answer, after alleging payment of the debts of the deceased, and for the maintenance and education of his wards, he stated that he was ready to pay the balance, and interest for the testator's money, which he had from time to time in his hands, as the court should direct. Contrast this with the conduct of Mr. Diffenderffer. He assumed the trust in 1815, and from that time until 1828, he had from time to time, every [**59]  year received large sums of money, which he continually employed in trade and speculation. He filed more than one defective answer, withholding from the complainants the discovery 

 [*345]  they sought. He claimed the whole trust fund as belonging to his wife and children, and endeavored by all the means in his power, to stifle the inquiry as to the use he had made of the money received, or the profits which had accrued from its use. After the present litigation had continued nearly three years, he filed a supplemental answer, setting up an unfounded stale claim in a stranger, to one-third of the trust fund; thus seeking to defeat the just rights not only of the appellees, but of his own children. From the year 1815 to the present day, it does not appear that he ever paid, or offered to pay, to any of the cestui que trusts, one dollar of the $ 35,373 48, which he received before the 2d of August, 1828, being the income of the original trust estate. In Schiefflin vs. Stewart, the executor himself filed the bill, praying that his accounts might be settled, and stating that he was desirous of paying over the residue to the children of the deceased, or their guardian. It cannot [**60]  be necessary to draw the strong lines of discrimination between the case at bar, and the cases cited, nor further to prosecute this unpleasant comparison. The interests of the appellant certainly do not urge it.
Is it unjust or unlawful to charge the appellant with compound interest, under the peculiar circumstances of this case? It is a rule of equity, founded as well on principles of natural justice, as of sound policy, and now too well settled to be controverted, that profits made by an executor, or trustee, by the use of the trust fund, belong to the cestui que trust; and that if an account of such profits be withheld, that interest shall be allowed as an equivalent therefor. What was the trust fund used by Diffenderffer, in the year 1815? The amount received from the trust estate during that year. Of what consisted the trust fund used in 1816? The receipts from the trust estate in 1815 and 1816, and the profits made in 1815. Can a reason be assigned why these profits, thus used by the trustee as so much capital, should not bear interest in the same manner, as any other part of the trust fund enjoyed in the same way? Ought the trustee 

 [*346]  to have the beneficial [**61]  use of these profits for sixteen years, and pay no interest therefor? This advantage he will unquestionably have enjoyed, if charged with the payment of simple interest only. Justice cannot be administered to the cestui que trust, their clear equitable rights cannot be sustained, but by allowing them interest on their profits used by the trustee. And this is the compound interest for which, under the decree of the Chancellor, the trustee hath been made answerable. If the appellant be let off with the payment of simple interest, it would be offering to fiduciaries, a premium for infidelity. It would in effect be a decree of this court, giving to the trustee several thousand dollars, in addition to his commissions, of the property of the cestui que trusts, as a reward of any thing, rather than a faithful execution of the duties of his trust.
It may also be remarked, that the established interest of the Court of Chancery in Maryland, is six per cent.; in allowing compound interest thereon, (unless the delinquency be of at least twelve years continuance, nay even in the case now before us,) the same additional relief is not obtained by the cestui que trust, that is granted [**62]  in the familiar cases to be found in the modern chancery reports of England, where the inflamed interest of five per cent. is exacted of executors or trustees, who abuse their trusts. And we by no means go to the length to which Raphael vs. Boehm has been carried, where five per cent. has been charged, and interest compounded at the same rate. If, in no case, compound interest is to be exacted, you uproot the settled principle of equity, that all gains from the use of the trust fund shall inure to the benefit of the cestui que trust; and you present the strange anomaly in the law, that every shade of delinquency, corruption or misconduct of a trustee, no matter how various its consequences may be to the interests of the cestui que trust, is visited with the same measure of retribution. If in England and New York, where trustees are agents, serving gratuitously, it be deemed equitable for some delinquencies to subject them to the payment 

 [*347]  of compound interest, ought it to be looked on as a measure of severity, that the same rule should prevail in Maryland, where trustees, by way of commission, are liberally compensated for all the services they [**63]  render? But this question of compound interest is not now, for the first time, submitted to the consideration of this tribunal. In Darne vs. Catlett, 6 H. & J. 475, where the decree of the Chancellor had given compound interest, this court said, that they could not "concur with the Chancellor in the allowance of compound interest. It is neither charged nor proved, that the executors had appropriated any of the bequest, or of the proceeds thereof, to their own use, or employed them in their own business, or in any way made any profit or gain from them, or in any manner subjected them to hazard." The necessary inference from which is, that if these facts had appeared, it would have been deemed a fit case for compound interest. The principle is still more distinctly affirmed in Ringgold vs. Ringgold, 1 H. & G. 11, at pages 79, 80, where this court thus express themselves: "Where the trustee is directed to invest funds, and to re-invest the dividends; or in other words, where the trust directs an accumulation, and the trustee has used the funds, compound interest will be allowed, as was done in the case of Raphael vs. Boehm, 11 Ves. 92, 108, 109, [**64]  and S. C. 13 Ves. 407, 590--or where he has used the trust money, or employed it in his trade or business, he shall be charged in the same manner, as was decreed in Schiefflin vs. Stewart and others, 1 Johns. Ch. 620. The grounds of this allowance, as is apparent from these cases, is founded on the gain or presumed gain of the trustees, and that the cestui que trust may be indemnified by the efforts of the court in this way, to reach their profits or presumed profits." Upon principle, therefore, as well as authority, so far as the appeal of the appellant is concerned, we affirm the decree of the Chancellor.
On the appeal taken in this case by Winder and wife, we cannot sustain the decree of the Chancellor. It gives to 

 [*348]  the trustee a commission of ten per cent., which is the full allowance that ought to have been made to him, had his conduct been marked by a strict performance of the duties he had assumed. But this is very far from being the posture in which he appears before us. It is the duty of a Court of Equity, in the distribution of its favors, to discriminate between those who violate their duty, and abuse their [**65]  trust, and those who perform it with skill and fidelity. To the latter a full commission is cheerfully bestowed; to the former half that amount is reluctantly granted. Mr. Diffenderffer having kept full and fair accounts of his receipts and expenditures, and in that respect faithfully discharged his duty as trustee, we do not think he has forfeited all claim to commissions, as he otherwise would have done. We reverse, therefore, the decree of the Chancellor on the appeal by Winder and wife, on the ground that but five, instead of ten per cent. commission, ought to have been allowed to the trustee.
Upon this reversal, we are called on to exercise, as it were, an original equity jurisdiction--to give that decree on the record before us, which the Chancellor ought to have given. Whilst relieving the appellant, we must do justice to the appellee. If, therefore, by the decision of the Chancery Court, any injustice has been done to him, in remodelling the decree we must extend to him that relief, on which his equities authorize him to insist. That an error to the prejudice of the appellee, John Diffenderffer, has been inadvertently committed in Chancery, is manifest. He [**66]  has been decreed to pay two-thirds of the rents and profits of the trust fund to his children, from the 16th of January, 1815, till 1828, whereas their rights first accrued to them on the death of their mother, on the 30th of June, 1818. If it be asked, why on this ground the decree of the Court of Chancery was not reversed on the appeal of John Diffenderffer? The answer is obvious; his not having made it a matter of exception to the auditor's statements, the act of 

 [*349]  1825 precluded him from suggesting it as an error, on his appeal to this court.
That this court may pass a final decree in the cause, we appoint and direct the auditor of the Court of Chancery to state a new account, upon the basis of this opinion, that the expense of such audit be paid by the appellants; and that the same, as a part of their costs, on their appeal, be taxed by the clerk of this court.
DECREE REVERSED.
BUCHANAN, Ch. J., dissented from the opinion of the court, in relation to the liability of the appellant, (Diffenderffer) for compound interest. 

19 of 43 DOCUMENTS 

WATCHMAN AND BRATT vs. CHARLES CROOK, Jr. et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 239; 1833 Md. LEXIS 9 

June, 1833, Decided 

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

This was an action of Covenant, instituted by the appellants, against the appellees on the 7th February, 1827, on an agreement dated the 12th September, 1825.

The declaration stated, for that whereas heretofore, to wit, on the 12th of September, in the year 1825, at, &c. by a certain covenant then and there made, and agreed upon between the said plaintiffs and defendants, (which said covenant sealed, &c.) it was witnessed amongst other things, that for the consideration thereinafter mentioned, the said Watchman & Bratt, the plaintiffs, had bargained and agreed, and by the said covenant did bargain and agree to and with the said defendants, by the name of Charles Crook, Junior and brothers, that they the said Watchman & Bratt, the plaintiffs, should and would furnish good merchantable materials, and construct, make, fit, and put up, in a good, faithful and workman-like manner, for the said Charles Crook, Junior and brothers, the said defendants, a high pressure steam engine, of thirty horses power, to work at a pressure of forty-five pounds to the inch, with a cast iron cylinder with three boilers of iron, a quarter of an inch thick, to [**2]  be nineteen feet long, thirty-six inches diameter, and a flue proportioned thereto, the whole to be finished and delivered at the factory of the said Charles Crook, Junior and brothers, and there properly fitted up, and put into effective operation, by and at the proper expense and charge of the said Watchman & Bratt, within ninety days from the day of the date of the said agreement. In consideration whereof, the said Charles Crook, Junior and brothers, the said defendants, by the said covenant, agreed to pay the said Watchman & Bratt, the plaintiffs, for the said engine, so as aforesaid to be constructed, made, and put up, the sum of thirty-seven hundred dollars, and obliged and bound themselves to pay the same in the following proportions, to wit: to pay the sum of one hundred dollars each week, as the work progressed, until the same should be finished and put up as aforesaid, when the sum of twelve hundred dollars, including the weekly advances aforesaid, was to be paid; the residue or balance of the said consideration, that is to say, twenty-five hundred dollars was to be paid in three equal installments, payable at six, nine, and twelve months, from and after the said engine should [**3]  have been put into full and effective operation, to the full extent and meaning of the said covenant. And the said defendants also promised and agreed by the said covenant, that they would provide and pay for the brick and stone work necessary for putting up the boilers aforesaid, and likewise pay for the brick and stone. And it was further agreed by the said covenant, that Watchman & Bratt, the said plaintiffs, were to warrant and insure the faithful performance of the said engine, for the term of twelve months from the time it should be put into operation as aforesaid. And the said plaintiffs further aver, that after the execution of the said covenant, and of good merchantable materials by them furnished, (except a fly wheel, crank, and shaft, which were furnished by the said defendants, to be used in the construction of the said engine, of their own accord, and which constitute only a small portion of the value of the materials used in the construction of the said engine,) they the said plaintiffs, did construct and make in a good, faithful, and workman-like manner, for the said defendants, a high pressure steam engine of thirty horse power, to work at a pressure of forty-five pounds [**4]  to the inch, with a cast iron cylinder, with three boilers of iron a quarter of an inch thick, nineteen feet long, thirty six inches diameter, and a flue proportioned; and that afterwards, to wit, on the first day of January, eighteen hundred and twenty-six, the said plaintiffs delivered the said engine, cylinder and boilers, thus constructed as aforesaid, at the factory of the said defendants, and there properly fitted up, and put the same into full and effective operation, at the proper expense and charge of the said plaintiffs, and that the said steam engine, thus furnished, constructed, and put into full and effective operation, was by the said defendants then accepted, retained, and from thence hitherto hath been used and employed by the said defendants at their factory aforesaid. And the said plaintiffs further aver, that after the said engine was so as aforesaid put into full and effective operation, at the factory of the said defendants, and by them there accepted, and before the commencement of this action, the term of twelve months had fully expired. Nevertheless, the said defendants have not paid the said plaintiffs the aforesaid installments at six, nine, and twelve months,  [**5]  by the said defendants to be paid as aforesaid, and which amount to the sum of twenty-five hundred dollars, nor any part thereof, and so have not kept their said covenant.

Second breach. 1st count. And the said plaintiffs for further breach of the said covenant, say, that after the execution of the same, they of good merchantable materials by them furnished, (except a fly wheel, crank and shaft, which were furnished by the said defendants of their own accord, to be used in the construction of the said engine, and were so used, and which said fly wheel, crank and shaft, constituted only a small part of the value of the materials, used in the construction of the said engine,) they, the said plaintiffs, did construct and make, in a good, faithful, and workmanlike manner, for the said defendants, a high pressure steam engine of thirty horse power, to work at a pressure of forty five pounds to the inch, with a cast iron cylinder, with three boilers of iron, a quarter of an inch thick, nineteen feet long, thirty-six inches in diameter, and a flue proportioned thereto, and were ready and prepared to deliver and properly fit up the said engine, at the factory of the said defendants, and [**6]  to put the same into full and effective operation, on the eleventh day of December, in the year eighteen hundred and twenty-five, according to the said covenant; but the said defendants did not provide the brick and stone work necessary for putting up the boilers of the said engine; by reason whereof the said engine could not be fitted up and put into full and effective operation on the day and year aforesaid, and the said plaintiffs were thereby prevented from fitting the same up, and putting the same into full and effective operation on the day and year aforesaid: by reason whereof, the said defendants became liable to pay to the said plaintiffs, the sum of twenty-five hundred dollars, in installments of six, nine and twelve months, from the day and year last aforesaid. Yet the said plaintiffs say, that although the said term of twelve months had fully expired and ended before the institution of this suit, yet the said defendants had not paid the said sum of money, nor any part thereof, and so have not kept their covenant aforesaid.

Second Count. After referring to the covenant as before set forth, the plaintiffs averred, that after the execution of the aforesaid covenant, to [**7]  wit, on the 20th December, 1825, at, &c. they of good merchantable materials, by them furnished, did construct, make, fit and put up, in good, faithful and workman-like manner, for the said defendants, a high pressure steam engine of thirty horse power, to work at a pressure of forty-five pounds to the inch, with a cast iron cylinder, with three boilers of iron, a quarter of an inch thick, nineteen feet in length, and thirty-six inches in diameter, and a flue proportioned thereto, and the said engine with the appurtenances aforesaid, they, the said plaintiffs, delivered, fitted up, and put into effective operation, at the factory of the said defendants, in the city of Baltimore. And the said plaintiffs further aver, that the said engine and appurtenances were not fitted up and put into effective operation, at the factory of the said defendants, within the term of ninety days from the date of the said covenant, because they say, that the brick and stone work necessary for putting up the boilers in the said covenant mentioned, and without which, the said engine could not have been fitted up and put into effective operation, were not provided within the said term, by the said defendants,  [**8]  their agents or servants. And the said plaintiffs further aver, that the said engine and appurtenances so by them fitted up as aforesaid, were accepted by the said defendants, and by them retained and used from thence hitherto; and although the term of twelve months had fully expired and ended, after the putting the said engine into effective operation, and its acceptance as aforesaid, and before the bringing of this action. Nevertheless &c.

Third Count. After referring to the covenant as before set forth, the plaintiffs averred, that after the execution of the said covenant, to wit, on the 20th December, last above mentioned, that of good merchantable materials, by them furnished, they did construct, make, fit and put up, in a good, faithful, and workman-like manner, for the said Charles Crook, Jr. and brothers, a high pressure steam engine of thirty horse power, to work at a pressure of forty-five pounds to the inch, with a cast iron cylinder, with three boilers of iron, a quarter of an inch thick, to be nineteen feet long, and thirty-six inches in diameter, and a flue proportioned thereto, and delivered the same at the factory of the said defendants, in the city of Baltimore,  [**9]  and there properly fitted up, and put the same into full and effective operation, at the proper expense and charge of the said Watchman and Bratt. And the said plaintiffs also say, that although the term of twelve months had fully expired and ended, after the said engine and appurtenances had as aforesaid been fitted up and put into full and effective operation, and before the commencement of this action. Nevertheless &c.

Fourth Count. After referring to the covenant as before set forth, the plaintiffs averred, that after the making of the said covenant, they did make, construct, fit and put up, the steam engine therein mentioned, at the factory of the said defendants, in the city of Baltimore, and did put the said steam engine into full and effective operation for the said defendants, on the twentieth day of December, in the year eighteen hundred and twenty-five, at the factory aforesaid, to the full intent and meaning of the said covenant, to wit, at the county aforesaid. By reason whereof the said plaintiffs say, that after the expiration of twelve months from the time the said engine was put in full and effective operation as aforesaid, they became entitled to have of the [**10]  said defendants, and the said defendants were obliged to pay them, the aforesaid three installments, at six, nine and twelve months, amounting to the sum of twenty-five hundred dollars. And although the said term of twelve months above mentioned, had fully expired and ended, before this action was commenced, yet the said defendants have not paid to the said plaintiffs, the said sum of twenty-five hundred dollars, nor any part thereof, and so have broken their covenant aforesaid. And therefore the said plaintiffs say they have sustained damage in the sum of five thousand dollars, &c.

The defendants demurred generally to the first and second counts; and the plaintiffs joined in the demurrer. The defendants pleaded to the third and fourth counts as follows.

First plea to 3d and 4th counts. And as to the two last counts in the said declaration contained, the said defendants say, that the said plaintiffs ought not, &c. because they say, that the said plaintiffs did not furnish good merchantable materials, and construct, make, fit and put up, in good and faithful workman-like manner, for the said Charles Crook, Jr. and brothers, the said defendants, a high pressure steam engine,  [**11]  of thirty horse power, to work at a pressure of forty five pounds to the inch, with a cast iron cylinder, with three boilers of iron, a quarter of an inch thick, nineteen feet long, thirty-six inches diameter, and a flue proportioned thereto, and put the same into full and effective operation at the factory of the said Charles Crook Jr. and brothers, by and at the proper expense and charge of the said Watchman and Bratt, within ninety days after the execution of the articles of agreement above mentioned, and this they are ready to verify. Wherefore they pray judgment, &c.

Second Plea to 3d and 4th Counts. And the said defendants, as to the said two last counts in the said declaration contained, for further plea thereto, &c. because they say, that although true it is, that the said plaintiffs did deliver and set up certain parts of a steam engine at the factory of the said defendants, yet the said plaintiffs never did deliver a fly wheel, crank, or shaft; and the said defendants aver, that a fly wheel, crank and shaft are necessary and indispensable parts of a steam engine, without which the residue is of no use or benefit in spinning cotton. And so the said defendants say, that [**12]  the said plaintiffs did not make, construct, fit and put up the steam engine in the article of agreement mentioned, in manner and form as in the said two last counts in the said declaration, they have averred; and this they, the said defendants are ready to verify. Wherefore they pray judgment, &c.

Rejoinder to defendants' 1st Plea to 3d and 4th Counts. And the said plaintiffs, as to the first plea by the said defendants above pleaded, to the said third and fourth counts of the said declaration, say that they ought not to be precluded thereby, because they say, that they did furnish good merchantable materials, and construct, make, fit, and put up, in a good, faithful and workman-like manner, for the said defendants, a high pressure steam engine of thirty horse power, to work at a pressure of forty-five pounds to the inch, with a cast iron cylinder, with three boilers of iron a quarter of an inch thick, nineteen feet long, thirty-six inches diameter, and a flue proportioned thereto; and put the same into full and effective operation at the factory of the said defendants, at the expense and charge of the said plaintiffs, on the twentieth day of December, in the year eighteen hundred [**13]  and twenty-five, to wit, at the county aforesaid, &c. and therefore, &c.

Rejoinder to defendants' 2nd Plea to 3d and 4th counts. And the said plaintiffs as to the second plea of the said defendants to the third and fourth counts of the said declaration, say, that they ought not to be barred from, &c. because they say, that they did deliver a fly wheel, crank and shaft, with the said steam engine; and of this they put themselves upon the country, and so forth. And the said defendants by their said attorneys, in like manner, &c.

The defendants then demurred generally to plaintiffs' rejoinder to the 1st plea to the 3d and 4th counts, and joined issue upon the rejoinder to second plea to same counts. The county court rendered judgment upon all the demurrers for the defendants, and the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Whatever may have been the principles contained in the more ancient decisions, upon the legal effect and operation of contracts containing various covenants, the strong bearing of the courts in more modern times, has been to disencumber themselves from the fetters of technical rules, and to give such a rational interpretation to contracts, as will carry the intention of the parties into full and complete operation.

W contracted with C by an agreement under their seals, that he would furnish materials, and construct, and put up for C, a high pressure steam engine of certain specified proportions and power,--"the whole to be finished, and delivered at the factory of C, and there properly fitted up, and put into effective operation by and at the charge of W, within 90 days from the date of the agreement. In consideration whereof, C agreed to pay W for said engine, so as aforesaid to be constructed and put up, the sum of $ 3700, in the following proportions; $ 100 each week, as the work progressed, until the same should be finished and put up as aforesaid, when the sum of $ 1200, including the weekly advances, was to be paid; the residue of the consideration $ 2500 was to be paid in six, nine, and twelve months, from and after the said engine should have been put into full and effective operation to the full extent and meaning of the said covenant." C, agreed also, that he would provide and pay for the brick and stone work necessary for putting up the boilers of said engine, and likewise pay for the brick and stone work. W further agreed to warrant and insure the faithful performance of the engine, for the term of twelve months from the time it should be put into operation as aforesaid. HELD, that upon the true construction of this covenant, 1. That the parties contemplated the completion of the engine before the weekly payments would amount to the sum of $ 1200. 2. That the time limited for the completion of the engine was of the essence of the contract. 3. That W was not entitled to recover the $ 2500 under the covenant, until he had complied with the stipulations of the contract, as well in relation to the time fixed on, as to other particulars. 4. That it was not necessary for C to provide the brick and stone work for putting up the boilers, before the boilers would be in a state of readiness to be put up, of which fact, it was the duty of W to inform C in due time.

Where a covenant exists to do a particular piece of work, if after the work is done, though not pursuant to the contract, the party for whom it is done accepts it, it would seem to be right and proper that he should pay for it, what it is worth. Justice requires this, and the principles of the law do not forbid it.

Where the County Court decides a cause upon general demurrer, against the plaintiff, and their judgment upon appeal is affirmed, this court will not award a procedendo.

The case of Terry vs. Duntz, 2 Hen. Black, 389, overruled.  

COUNSEL:
Gill, for the appellant, contended.

1. That the first breach in the first count of the declaration, contains an averment of a sufficient and substantial performance of the plaintiffs' part of the covenant, to enable them to recover the instalments of $ 2500.

In support to the first breach, he cited 1 Saund. 320, 481. note 4.  [**14]  Terry vs. Duntze, 2 Hen. Black. 389. 1 Saund. 319. Heard vs. Wadham, 1 East. Rep. 625, 631. Seers vs. Fowler, 2 Johns. Rep. 272. Wilcox vs. Ten. Eyck, 5 Johns. 78. Carpenter vs. Creswell, 15 Serg. and Low. 22. Gardiner vs. Corson, 15 Mass. 501. Ib. 503. Harper vs. Hampton, 1 Harr. and Johns. 672. He insisted that time was not of the essence of the contract He referred also in support of this count to Duke of St. Albans vs. Shore, 1 Hen. Black. 273. 2 Harr. and Johns. 466. Benson vs. Hubbs, 4 Ib. 286.

2. That the exception, as stated in said breach of the materials furnished in the construction of the engine, does not diminish in point of law, the performance of the covenant as to furnishing materials, relied on and pleaded. That it forms a case, if at all objectionable, for the defendant to recover damages upon, but cannot defeat the action. Terry vs. Duntze, 2 Hen. Black. 389. 1 Chitty Pl. 317, 318. Rawson vs. Johnson, 1 East. 206, 208, 211. Waterhouse vs. Skinner, 2 Bos. and Pul. 447. Robbins vs. Luce, 4 Mass. Rep. 475. Couch vs. Ingersoll, 2 Pick. Rep. 302. Hotham vs. East India Co. 1 Term. Rep. 638. McElderry vs. Flannigain, 1 Harr. and Gill, 323. Wills. Rep. 496.

3.  [**15]  That the agreement to finish the engine within ninety days is not of the essence of this contract, and does not make a condition precedent.

4. That the defendants' covenant to pay the $ 2500 in instalments, after the engine should have been put into full and effective operation, does not relate to the time of its being put into operation, but to the fact of its being put into full and effective operation.

5. That the only conditions precedent, if there be any, to the payment of the $ 2500, were the fact of the engine being put into full and effective operation, and the lapse of six, nine, and twelve months thereafter.

Upon the 2d breach in the first count, he contended.

6. That if the ninety days mentioned in the covenant, be a condition precedent, yet the fact that the plaintiffs were ready, and prepared to put the said engine into effective operation within the ninety days, and were prevented by the defendants, gives the plaintiffs a right to the $ 2500 after the lapse of twelve months from such readiness.

7. Upon the breach as laid in the second count he insisted, that the ninety days constituted no condition precedent. That the hindrance within that time [**16]  by the defendants as averred, and the actual putting up the engine according to the covenant, gave a right after the lapse of the twelve months, to the $ 2500.

8. The defendants cannot, and ought not to rely upon the engine not being put up within the ninety days, without first showing, that they, within that time, did their part of what was necessary to its being put into operation, viz: providing the brick and stone work.

9. That those breaches, in which it appears that the appellants were prevented from performing their covenant to the day by the default of the appellees, are to be considered as equivalent to performance by the appellants. In support to the second count he cited, 1 Chitty Pl. 76. Heard vs. Wadham, 1 East. 630. Jewell vs. Schroeppell, 4 Cowen, 564. Littler vs. Holland, 3 Durn. and East. 590. Brown vs. Goodman, 3 Term. Rep. 592, (note.) Phillips vs. Rose, 8 Johns. Rep. 392. 15 Ib. 304. Freeman vs. Adams, 9 Johns. Rep. 114.

Upon the 3d and 4th counts, he referred to Boone vs. Iyre, 1 Hen. Black. 273, (note.) Terry vs. Duntze, 2 Hen. Black. 389. Ritchie vs. Atkinson, 10 East. 295. Ib. 300. Ib. 302. Ib. 311. Havelock vs. Geddes, 555. Ib. 563.

Johnson [**17]  and Evans, for the appellees.

1. The covenant of the defendants to pay the last instalment of $ 2,500, is dependent on the plaintiffs' finishing and putting up the engine, within the ninety days. The rule by which covenants are decided to be dependent, or the reverse, is, that the intention of the parties, as displayed upon the face of the contract, shall govern; and the precedency of acts depends upon the order of time, in which they are to be performed. Speake vs. Sheppard, 6 Harr. and Johns. 85. Thorpe vs. Thorpe, 1 Salk. 171. 1 Ld. Raymond, 665. 1 Wheat. Selw. 98. Campbell vs. Jones, 6 Term. Rep. 572. 1 Saund. 320, note 4. When the covenants go to the whole consideration on both sides, they are dependent. 1 Ventris, 147. Duke of St. Albans vs. Shore, 1 H. Black. 270--and the plaintiff must show a substantial performance of the agreement on his part, before he can maintain an action. Carpenter vs. Creswell, 15 Serg. and Lowb. 22. Gardiner vs. Corson, 15 Mass. Rep. 504. And even the performance of a substantial part, will not be sufficient, unless the things to be done are divisible. Ritchie vs. Atkinson, 10 East. 308. Watkins vs. Hodges & Lansdale, 6 Harr. and Johns. 38. The [**18]  same contract may contain covenants, dependent, independent, and mutual. Gardiner vs. Corson, 15 Mass. Rep. 500. Stoner vs. Gordon, et al. 3 Maul. and Selw. 308. Webster vs. Warren, 2 Wash. C. C. R. 456.

In this case, the covenants are, 1st, that a certain sum should be paid weekly, as the work progressed,--2d, that when the work should be finished, the balance of the sum of $ 1,200 was to be paid,--and 3d, that the balance of the $ 3700 (the whole price) should be paid by instalments, of six, nine, and twelve months, from the actual completion of the work. This balance, according to the contract, was to be $ 2500. Now, compel the defendants to pay it before the completion of the work, and the credit of six, nine, and twelve months is expunged from the contract; or if the work should be retarded, and the weekly payments should amount to more than $ 1200, then the terms of the contract are changed to the disadvantage of the defendants.

In the case of Terry vs. Duntze, 2 H. Black, 389, the whole of the sum to be paid, might have become due before the work was completed, because there was a stipulation to pay certain weekly wages to the plaintiffs, and these wages might have [**19]  amounted to more than the sum to be paid. But in the case under discussion, the weekly payments were in no event, to be paid out of the last instalment, which could not become due until the end of certain stipulated periods from the final completion of the work. Cunningham vs. Morell, 10 Johns. Rep. 203. Harper vs. Hampton, 1 Harr. and Johns. 672. If the rule supposed to be established by Terry vs. Duntze, applies to this case, then the defendants could be made to pay the whole sum before the work was even commenced, that being the necessary result of considering the covenants independent. It is said, however, that the covenant to pay, is in consideration of performance of a part only of the covenant to perform. But if this be so, then the defendants could be made to pay the whole, as soon as the work was commenced. This cannot be the case--performance is certainly necessary, and being necessary, the question is, is time a material part of the performance?

Suppose the plaintiffs had not completed the engine by the time agreed on, but in their declaration had averred a completion by a subsequent day, and that defendants had refused to receive it, the action would certainly have [**20]  failed. Watkins vs. Hodges and Lansdale, 6 Harr. and Johns. 38.

2. Does the subsequent acceptance of the engine, authorize the plaintiffs to recover the price, under the covenant? Now if time is material, a parol agreement to dispense with it, no more authorizes a recovery upon the covenant, than would a parol agreement to dispense with any other part of the covenant. However the acceptance of the engine by the defendants, after the time stipulated, may have subjected them to an action in another form, for the value of the work, still, they are not liable on the covenant. White vs. Parkin, 12 East. 583. Smith vs. Wilson, 8 East. 436. Thompson vs. Brown, 7 Taunt. 656. Littler vs. Holland, 3 Term. Rep. 592. 4 Taunt. 745. Jewell vs. Schroeppell, 4 Cowen, 564. 7 Pick. Rep. 181. Smith vs. First Cong. Meeting House, 8 Pick. Rep. 178. Abbott on ships, 329. Caze & Richaud vs. Balt. Ins. Co. 7 Cranch. 358. Hamilton vs. Warfield, 2 Gill and Johns. 482.

3. The 2d breach in the 1st count, and the 2d count, do not aver sufficently, that the plaintiffs were prevented by the defendants from performing the contract on their part. 1 Chitty Pl. 323. Bach vs. Owen, 5 Term Rep. 409.

It [**21]  was the duty of the plaintiffs, first to prepare the boilers, before they could call on the defendants to do the brick work, for the brick work was required to put up the boilers, and consequently, the defendants should have notice that the boilers were ready. Suppose the plaintiffs had not prepared the boilers in time, the defendants would not have been liable for a failure to do the brick work. The defendants were not bound to take notice of the progress made in the work. The obligation to pay weekly had no reference to the value of the work done. There is no averment of an actual delivery, but a readiness to deliver; nor does the excuse go to the delivery, but to the engine as set up.

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

1. The covenants are independent, and performance by the plaintiffs, not a condition precedent to the payment of the money.

2. If the covenants are dependent, still, time in this agreement is not essential.

3. If, however, time is a material part of this contract, still as the substantial part of the covenant has been performed, a failure as to time merely, is not fatal to the action.

4. If all these points are against the plaintiffs, still [**22]  a sufficient excuse is alleged, for the failure on their part, and the action consequently can be maintained.

1. When the entire consideration is to be paid, when the entire work is done, and no part while it is in progress, then the doing the work by the time limited, is a condition precedent; but if part of the compensation is to be paid before performance, the covenants are independent. In Watkins vs. Hodges and Landsdale, 6 Harr. and Johns. 38, the whole of the tobacco was to be delivered by a given day, which was before any part of the purchase money was to be paid.

The question is, whether the covenant is within the case of Terry and Duntze, and whether that case is law? That case was not decided upon the ground, that the entire consideration might be paid before the entire work was done, but distinctly upon the ground, that if a part was to be paid, the covenants are independent--and in such a case the parties are supposed to rely reciprocally upon the covenants of each other. The case at bar is clearly within the rule of Terry and Duntze, because a certain sum is stipulated to be paid weekly as the work progressed. Being within the rule, the next question is, is there [**23]  any thing in it which should induce the court to change it? In the case 10 Johns. the rule was changed, but that was a case in which no work had been performed. Again--for the recovery of the weekly payments, the plaintiffs must sue in covenant, and if therefore for the balance, they are to sue in assumpsit, you divide the remedy, and compel them to bring two actions instead of one, and according to this interpretation, the credit stipulated for is gone, because as soon as the engine was put up, and accepted, though the day after the day named in the agreement, the plaintiffs could bring their action. Besides, if covenant cannot be maintained by the plaintiffs for the money, their warranty that the engine should remain in good order for a certain period is discharged.

The authority of the case of Terry and Duntze, is recognized in the following cases:--Heard vs. Wadham, 1 East, 625. Ib. 631. Seers vs. Fowler, 2 Johns. Rep. 272. Ib. 387. Wilcox vs. Ten. Eyck, 5 Johns. 78. Gardiner vs. Corson, 15 Mass. Rep. 500. Reab vs. Moore, 19 Johns. Rep. 341. Webster vs. Warren, 2 Wash. C. C. R. 456.

2. But if the covenants are dependent, sill time is not essential. The defendants' covenants [**24]  are not dependent as to time, but upon the making and putting up the engine. Cunnigham vs. Morell, 10 Johns. 214.

If the last instalment was to be paid in certain periodical payments, after the ninety days, the time named for putting the engine into full and effective operation, why does the contract say, that the instalments are to be paid at stipulated periods, after the completion of the work, instead of fixing the credit from the end of the ninety days? It is plain, from this stipulation, that the credit was to run from the completion of the work, and not from the expiration of the ninety days, and it could not therefore have been intended to oblige the plaintiffs to finish the work within the time, or to make time a part of the condition precedent.

3. A substantial part of the contract having been performed by the plaintiffs, within the time, they are entitled to recover, though a small part was not so performed. The case of Boone & Iyre, decides that, a contract divisible in its nature, need only to be performed in part, to enable the party performing to recover; nor is there any thing in Hamilton vs. Warfield, 2 Gill and Johns. 482, against this proposition, because [**25]  there the condition was indivisible. In support of this proposition, he referred to Havelock vs. Geddes, 10 East. 555. Carpenter vs. Creswell, 15 Serg. and Low. 22. 6 Durn. and East. 570.

4. The excuse, for the failure on the part of the plaintiffs to perform their contract, is sufficient. The question here is, should the plaintiffs have averred notice of their readines? When concurrent acts are to be done, it is not necessary to aver notice. Notice is only necessary, when knowledge is in possession of but one party; but here the acts to be done were concurrent, the putting up the engine, and preparing the brick and stone work, being to be done, at the same time. In such a case, the averment of readiness is sufficient. Notice need not be averred, because the contract itself gave the defendants notice, that they must have the work ready a reasonable time before the end of the ninety days, and it was their duty to know, what would be a reasonable time. 2 Saund. 694, (note 3.) 

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

OPINIONBY:
STEPHEN 

OPINION:

 [*254]  STEPHEN, J. delivered the opinion of the court.
This suit was instituted upon a [**26]  covenant, entered into between the parties on the 12th of September, 1825; and after referring to the pleadings, the judge said--the question which arises in this case, is upon the true construction and character of the covenants contained in the deed, or instrument of writing upon which this suit was instituted. We may say in limine, that whatever may have been the principles contained in the more ancient decisions, upon the legal effect and operation of contracts of a similar description, the strong leaning of the courts 

 [*255]  in more modern times, has been to disencumber themselves from the fetters of technical rules, and to give such a rational interpretation to the contract as will carry the intention of the parties into full and complete operation. In 8th Term. Rep. 371, Grose, Justice says, "the question is, whether these covenants be dependent or independent, and that must be collected from the apparent intention of the parties to the contract. There is certainly some confusion in the books on this subject, some of the older cases leaning to construe covenants of this sort to be independent, contrary to the real sense of the parties, and the true justice of [**27]  the case. But the later authorities convey more just sentiments, and the case of Kingston vs. Preston, was the first strong authority in which they prevailed in opposition to the former." In this case of Kingston vs. Preston, Ld. Mansfield says, "that the dependence or independence of covenants, was to be collected from the evident sense and meaning of the parties, and that however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance." Alluding to the case of Kingston vs. Preston, in a subsequent part of his opinion, Mr. Justice Grose says, "I have since found, that that was not the first case, where those sentiments began to be entertained; for it appears from a late publication of reports from the manuscript of Ld. Chief Justice Willes, that in a case of Thomas vs. Cadwalader, Wil. 496, his lordship noticed the injurious tendency of the doctrine, which had before that time prevailed in those cases, and seemed very desirous, that the governing rule should be so to construe such covenants, as that the real intention of the parties should be carried into effect,  [**28]  to obtain the true justice of the case. This was afterwards done in the case of Kingston vs. Preston, and that has since been settled to be the rule in many cases." Mr. Justice Grose then concludes his opinion by observing, that "the intention of the parties is, or is assumed to be, the governing principle of all the 

 [*256]  late determinations." In the same case, Mr. Justice Lawrence observes, "whatever the form of words may be, if we can collect from the face of the instrument, that the whole was to be performed by the plaintiff before the money was to be paid, nothing short of the performance of the whole can enable him to sustain this action for the money." So, in the same case, Ld. Kenyon, speaking of the cases which had been cited in the argument, says, "the general rule which governs them all is, that every man's agreement is to be performed according to his intent, as far as that is to be collected from the particular instrument." A similar principle is laid down in 6 Term. R. 669, where Ld. Kenyon says, "it has been frequently said, and common sense seems to justify it, that conditions are to be construed to be either precedent or subsequent,  [**29]  according to the fair intention of the parties, to be collected from the instrument, and that technical words, (if there be any to encounter such intention, and there are none in this case) should give way to that intention." According to these authorities, the important inquiry in this case, is, what was the intention of the parties to be collected from the covenant entered into between them. It appears by the pleadings in the cause, that the plaintiffs, for the consideration therein mentioned, agreed with the defendants that they would furnish the materials, and construct, make, fit, and put up in a good, faithful and workmanlike manner, a high pressure steam engine of a particular description, the whole to be finished and delivered at the factory of the defendants, and there properly fitted up, and put into effective operation, by, and at the proper expense and charge of the plaintiffs, within ninety days from the day of the date of the said agreement; in consideration whereof, (that is, in consideration that the plaintiffs would perform their part of the contract, by making and putting up the engine as stipulated;) the defendants bound themselves to pay the sum of thirty-five [**30]  hundred dollars for the said engine, so as aforesaid to be constructed, made, and put up in the following 

 [*257]  proportions, to wit; to pay the sum of $ 100 each week as the work progressed, until the same should be finished, and put up as aforesaid, when the sum of twelve hundred dollars, including the weekly advances aforesaid, was to be paid. The residue of the consideration, that is to say, twenty-five hundred dollars, was to be paid in three equal installments, at six, nine, and twelve months, from and after the said engine should have been put into full and effective operation, to the full extent and meaning of said covenant; and the defendants covenanted, that they would provide and pay for the brick and stone work, necessary for the putting up the boilers aforesaid, and likewise pay for the brick and stone; and the plaintiffs agreed to warrant and insure the faithful performance of the said engine, for the term of twelve months from time it should be put into operation as aforesaid. Upon the true construction of this contract, was it the understanding of the parties that the engine was to be completed in ninety days, as a condition precedent to the payment [**31]  of the three last installments, amounting to the sum of twenty-five hundred dollars? In the first place, it is to be observed, that the parties contemplated the completion of the engine, before the weekly payments would amount to the sum of twelve hundred dollars, because those payments were to be deducted from that sum; and the balance to be paid when the work should be finished, and put up according to contract, or to use the language of the deed of covenant, "should be finished, and put up as aforesaid." If then, it was the evident intent and meaning of the parties, that the engine should be completed, and put up before the weekly payments would amount to the sum of twelve hundred dollars; it is demonstrably clear, that the time limited for the completion of the work was of the essence of the contract, and that the plaintiffs were not entitled to recover the twenty-five hundred dollars under the covenant upon which their action was founded, because those installments were not to be paid until "after the said engine should have been put into full 

 [*258]  and effective operation, to the full extent and meaning of said covenant," which, upon every principle of correct [**32]  interpretation, would seem to require a rigid compliance with the stipulations of the contract, as well in relation to the time fixed on, as to the other particulars; the words used being sufficiently strong, and comprehensive to indicate such to have been the sense and meaning of the parties. That time was of importance in the contemplation of the parties, and formed a material ingredient in the constitution of their contract, further appears from that part of it, by which the plaintiff's covenant to "warrant and insure the faithful performance of the said engine, for the term of twelve months, from the time it should be put into operation as aforesaid." Nor do we think that the failure to complete the engine by the time limited, is excused by the non-performance of the defendants of their covenant, by which they bind themselves, "to provide, and pay for the brick and stone work, necessary for putting up the boilers aforesaid, and likewise pay for the brick and stone," because it was not necessary to do that part of the work, before the boilers would be in a state of readiness to be put up; of which fact, it was the duty of the plaintiffs to inform the defendants in due and proper [**33]  time, as they best knew when such part of the work would be wanted; and until it should become necessary, it was not the duty of the defendants to do an act which might ultimately prove to be vain and nugatory. In this case, the words in "consideration whereof," must we think be construed to refer, not to the promise or undertaking of the plaintiffs to do the work, but to the actual performance of the thing stipulated to be done; for in 4 Term. R. 764, Ld. Kenyon was of opinion, that the words "in consideration of the premises," meant in consideration of the actual transfer of the stock, and not in consideration of the covenant to transfer. So, in 1 Tidd's Prac. 442, it is said, "the words by which conditions precedent are commonly created, are, for and in consideration of ita quod proinde," &c. A by his 

 [*259]  agreement was to complete a certain piece of road, on or before the 26th of October, 1810, and B covenanted to pay him for completing the whole of the work, $ 6000, to be paid in installments as the work progressed. It was held that A could not maintain an action for the whole consideration money, without averring, and proving a performance of the whole [**34]  work, and that if he brought his action for a rateable part of the money, he must show a rateable performance. The above case may be found in 10 Johns. 203, Cunningham and another vs. Morrell, where Chief Justice Kent delivered the following very sensible and learned opinion, in which he seemed to think that in the case of Terry vs. Duntze, the court pushed the doctrine of mutual and independent covenants too far. He says, "we cannot distinguish this case so as to take it out of the operation of the case of Sears and Fowler, and Havens vs. Bush, 2 Johns. 272, 387. Those cases were governed by the English decision in Terry vs. Duntze, 2 H. Bl. 389. But from a more full consideration of the subject, we are now led to believe, that the court of C. B. carried too far, the principle of mutual and independent covenants. It is true, that if by the terms of the contract, the money is to be paid by a day certain, and which is to happen before the performance of the service, or by a day certain, and there is no day certain for the performance, the performance is not a condition precedent, and the party may sue for the money [**35]  without averring or showing performance. This is what was said by Ld. Holt in the case of Thorpe vs. Thorpe, 12 Mod. 455. 1 Ld. Raym. 662. And he went no further with the doctrine of mutual covenants. Where it be repugnant to the contract to make the service a condition precedent, the parties, he observes, are left to mutua remedies, on which by the express words of the agreement they have depended. The cases which he cites of Pool vs. Tolchesser, 48 Edward 111, 2, 3, and Pordage vs. Cole, 1 Wms. Saund. 319, are to this effect, and in both of them, the entire consideration was to be paid by a fixed time, and 

 [*260]  which might precede the service. Ld. Holt further said in that case, "what is the reason that mutual promises shall bear an action without performance? One's bargain is to be performed according as he makes it. If he makes a bargain and relies on the other's covenant, or promise to have, what he would have done to him, it is his own fault. If the agreement be that A shall have the horse of B, and A agree that B shall have his money, they may make it so, and there needs no averment of performance to maintain [**36]  an action on either side; but if it appear by the agreement, that the plain intent of either party was to have the thing to be done to him, performed, before his doing what he undertakes of his side, it must then be averred. After this rational explanation of the rule, we cannot but think it was misapplied, or carried to an unreasonable length in Terry vs. Duntze. The covenant in that case was, that the plaintiff should finish the building by a given day, and the defendant was to pay the consideration by installments as the building should proceed, and according to a certain and specified state of advancement, and the remaining part of the consideration when the building should be completed; but because two several sums of money were to be paid before the whole was performed, and when only a part of the service was performed, the court held the covenants to be independent, and as we understand the case, and as the reporter understood it, that the plaintiff might maintain his action for the entire consideration, without any averment of performance. This was contrary to the plain understanding of the parties, and was not warranted by any of the cases referred to. It was sufficient [**37]  for the plaintiff to have shown the advance of the building as stipulated, to have entitled him to the installment then to be paid, but to have entitled himself to the last installment, he was bound to aver, and show a completion of the contract. The good sense and justice of the case, as it appears to us, required this construction, and the meaning of the parties could not have been mistaken. The error in that case, and in the 

 [*261]  two cases in this court which followed it, consisted in holding the covenants to be independent throughout, because a part of the consideration money was to be paid before the entire service was to be performed. This might have been the case, if the contract in all those cases had not provided that a certain part of the consideration was to be paid on the completion of the service, and which rendered the service pro tanto, a condition precedent. There is nothing unreasonable nor unusual in such an agreement. It has been the constant language of the English courts, that the dependence or independence of the covenants, depended on the good sense and meaning of the contract. Their precedency, said Ld. Mansfield, must depend on the order [**38]  of time, in which the intent of the transaction requires their performance. A mechanic generally stands in need of advances from time to time, in aiding him to procure the materials to carry on his work, and the employer if prudent will generally reserve a considerable payment until the work be completed, and to depend on such completion. But if all these payments can be demanded without performance, merely because a part of them were to be made as the work advanced, it would be making the intention of the parties subservient to technical rules. The parties have an undoubted right, if they please, to make their covenants dependent or independent throughout, or to make the covenants independent as to one payment, and dependent as to another. They have a right to mould their contracts so as to suit their mutual convenience and interests, and when the courts can ascertain their meaning, they are so to construe the contract as to give effect to that meaning, provided the purpose be lawful. For these reasons, I apprehend that we have yielded with too much deference to the decision in Terry vs. Duntze, and did not sufficiently advert to the evil consequences of the doctrine in the extent [**39]  there laid down. It becomes then our duty to limit the operation of that case, and of the two cases in this court which were founded upon it, so as to better to 

 [*262]  fulfil the intention of the contract, and the justice of the case; and in doing this, we may be permitted to consider it as some apology for those decisions, that we at the time reposed on the authority of so respectable a tribunal as the C. B; and especially when its decision was supported by so distinguished a judge as Buller, who was equally eminent for a clear and sound judgment, and for diligent and profound inquiry.
"Having thus freed ourselves from undue embarrassment in considering the real merits of this case, we say, that as the road was to be completed on or before the 20th of October, 1810, and as the defendant was to pay therefore the sum of $ 6000, to be paid on or before that day, in installments as the work progressed, the just construction of the contract is, that if the plaintiffs will go for the whole consideration money, they are bound to aver, and show a performance of the whole work, and if they go for a rateable part of the money, they are bound to show a rateable performance." We [**40]  have extracted thus largely from the opinion of that eminent jurist, Chief Justice Kent, because we think it supported, not only by correct legal principles, but by the plainest dictates of common sense, and because it goes far to rescue the law, which ought to be considered a rational science, from the imputation of gross injustice and palpable absurdity. One other decision only, and that of modern date, and made in one of our sister States by a very learned and distinguished tribunal, will be referred to. It will be found in 8 Mass. 79. In that case, Parker, Ch. J., in delivering the opinion of the court, also adverts to the case of Terry vs. Duntze, and uses the following strong expressions: "In one case of modern date, it was decided, that if a man covenants to work upon a house, and the owner covenants to pay him by installments, and that the last installment shall be paid when the house is finished, the workman may recover the last installment, whether the house shall be finished or not. This seems to be turning a man's contract into something totally different from his words 

 [*263]  and intentions in the contract; and yet in the same book it is said,  [**41]  that the intent of the parties is to govern in the construction of the covenants. The principal reason given for this decision is, that some of the installments were to be paid before the house was finished. But because a man had engaged to pay one certain sum of money before his house was finished, therefore, he should be held to pay another sum, which he had not engaged to pay, until his house should be finished, seems to be very questionable as a logical, whatever it may be as a legal conclusion." The cases of Goodesson vs. Munn, 4 D. & East 61. Campbell vs. Jones, cited in the argument; Glazebrook vs. Woodrow, 8 D. & East 366; and Heard vs. Wadham, 1 East 619, all show a disposition on the part of the judges, to break through the bonds which some old cases had imposed upon them, and to adopt what Ld. Kenyon, in one of the cases calls the common sense doctrine--that the true intent of the parties, as apparent in the instrument, should determine whether covenants or promises are independent, or conditional, instead of any technical rules of which the parties were totally ignorant, and the application of which, would in most cases utterly defeat their intentions.  [**42]  We think therefore, that the plaintiffs were not entitled to recover the money sued for by them, upon the true construction of the covenants entered into by them. Whether they had not their remedy in a different form of action, is another question. If after the work was done, though not pursuant to the contract, the party for whom it was done, accepted it, it would seem right and proper, that he should pay for it, what it was worth. This we think, justice would require, and it is believed, that the principles of law do not forbid it. To this effect the law is stated to be in 4 Cowen's Rep. 564. It is there said, that "if there be a special agreement under seal to do work, and it be done, but not pursuant to the agreement, either in point of time, or in any other respect, the party who did the work may recover upon the common counts in assumpsit, for the work and labor, if the work be 

 [*264]  accepted by the party for whom it was done. The workman cannot maintain covenant, unless he perform the work strictly within the time. By permitting the plaintiffs, after knowing that the work was not completed in time, to proceed and finish it, he waived all right to object [**43]  on that ground, and the law implies a promise on his part, to pay what the labor was reasonably worth." So, in Burn vs. Miller, 4 Taunt. 745, we find the same principle recognized. "A lessor contracted to pay his tenant, at a valuation for certain erections, pursuant to a plan to be agreed on, provided they were completed in two months. No plan was agreed on, and after the condition broken, the lessor encouraged the lessee to proceed with the work, and held that the lessee might recover as for work and labor, on an implied promise, arising out of so many of the facts, as were applicable to the new agreement." In this case the court say, "It is a settled rule, even in case of deeds, that if there be a condition precedent in a deed, and it is not performed, and the parties proceed with the performance of other parts of the contract, although the deed cannot take effect, the law will raise an implied assumpsit. Upon this ground it is, that freight is daily recovered in actions of assumpsit, on implied promises substituted for the charter parties by deed. And here, though the plaintiff cannot put his case upon the written agreement, he may upon the agreement [**44]  raised upon so many of the facts of the case, as are applicable." Upon the whole, we are of opinion, that the judgment of the court below was correct, and that the same ought to be affirmed.
JUDGMENT AFFIRMED.
Gill, for the appellants, after the affirmance of the above judgment, moved for a procedendo, upon the following grounds.
The 10th sec. of the act of 1826, ch. 200, declares, that upon any appeal, or writ of error, the Court of Appeals, shall give judgment, or award a procedendo, for a rehearing 

 [*265]  of the case, as shall appear to be just. Prior to this law, and by the act of 1806, ch. 90, sec. 1, the right to award a procedendo depended upon the reversal of the judgment of the county court. The act of 1826 establishes a different, and more liberal rule. It submits the subject to the sound discretion of the court, to its moral jurisdiction, and directs, that the procedendo shall be awarded, when there is evidence in the record, either by facts, or pleading, that the plaintiff has a just claim. In this case, it is apparent, from the record, that the defendants have had the substantial benefits of the contract, and have not paid for them.  [**45]  
Under the act of 1826, the court is not trammelled by technical restraints of any sort, and it may be fairly inferred, that the legislature designed to give a re-hearing, in connection with the right to amend the pleadings, to the same extent as before had been awarded upon bills of exception, where the judgment of the county court had been reversed. This qualification of a right to the procedendo, is a very fair one. It aids just claims, and provides against accidents and errors growing out of nice questions of pleading. The claim being a just one, the defendant has no right to complain.
If the cause is transmitted to the county court, with leave to amend the pleadings, the plaintiffs could put it in a situation to recover. They could aver an excuse, in proper, and technical form, for a non-delivery of the engine in full and effective operation at Crook's factory, within ninety days. It could be averred, that after the execution of the contract, and before the expiration of the ninety days, the plaintiffs gave the defendants notice, at their factory, that they, the plaintiffs, were ready, prepared, and willing to put up the said engine, and put the same into operation, and [**46]  that they requested the defendants to furnish the brick and stone work, a sufficient period before the expiration of the ninety days, to have enabled the plaintiffs to put up, and put the said engine into operation at the said factory within said ninety days, but that the defendants did not, and would not furnish the brick and stone work in season.

 [*266]  The second breach of the first count avers, that the plaintiffs were ready and prepared to deliver and properly put up the engine at the factory of the defendants, and to put the same into full and effective operation, on the 11th of December, 1825, but the defendants did not provide the brick and stone work necessary for putting up the boilers, by reason whereof the engine could not be put up on the day, and the plaintiffs were thereby prevented from putting up the engine. To this breach there was a general demurrer. The state of the pleadings then admit:
1. That the plaintiffs commenced the engine. 2. That they were ready within the ninety days, to put it up at the factory. 3. That the defendants did not furnish the brick work. 4. That the failure to furnish the stone work, prevented the putting up the engine.
Now,  [**47]  these facts show, that the greater part of the work must have been completed, and that the plaintiffs had nearly earned their whole claim, even supposing defendants had furnished the brick work, and that the defendant must have received some notice to furnish the brick work. The plaintiffs, therefore, having in substance, performed their contract, they are entitled, under the act of assembly, to a new trial.
The county court had several times, before the institution of this suit, decided the broad principle, that time was not of the essence of a sealed contract. In Finley vs. Boehme, 3 G. & J. 42, that point was directly so decided by that court. These decisions induced the counsel not to bring assumpsit.
Johnson, contra.
Independent of the act of 1830, ch. 186, an act not referred to by the appellants, no provision can be found, and no case decided, to authorize a procedendo, when the judgment appealed from is affirmed. Had it been otherwise, there would have been no necessity for the act of 1830. The passage of that act is evidence, if any were needed, that a procedendo, in case of affirmance, was before wholly unprovided for; and [**48]  the act of 1830 applies only to bills of 

 [*267]  exceptions, and of course not to a case like the present. But if the court was now, for the first time, called upon to act under the law of 1826, it is confidently contended, that the present motion could not be granted. In this case, as in all others, the court can alone look to the record, and to what it discloses. That the plaintiff has a better case than his pleadings disclose, can only be known by facts appearing in exceptions, or in other parts of the record. When that is not the case, the court can have no knowledge that the case as made by the plaintiff, is not the only case that he can make, and of course, can have no knowledge that justice requires a new trial. In the present instance, the only ground upon which it can be pretended, that the plaintiffs could recover on this covenant, is by supposing a fact to exist, of which no evidence is offered in any part of the record. The court therefore, cannot see that justice requires a new trial.
The only ground on which it is contended that a procedendo should issue, in this case, is the suggestion of the appellants' counsel, that he believes the fact will enable [**49]  him to make a better case, than is now presented by the record. It will not escape the observation of the court, that the case of the appellants was brought out in pleading in every variety of form, and that no application was made to the court below to amend, for the purpose of pleading the fact now alleged to exist, and which if it does exist, must have been then known to their counsel. That excuse was deemed by them to be necessary to account for the delay in the completion of the engine is obvious, because the pleadings aver an excuse in different ways. Under such circumstances, to subject the successful party below, to the expense and trouble of a new trial, would be a principle decidedly wrong, and in practice extremely pernicious. Should the precedent be established, it will be difficult to imagine a case, in which the judgment of the Court of Appeals, will practically terminate the suit. This, it will be observed, is not a case in which from the record, the court can see that the 

 [*268]  appellants have a better case, than is technically presented, and which is lost to them, from want of mere technical form; but on the contrary, one, in which as far as the  [**50]   court have or can have any judicial knowledge, the appellants are neither legally nor equitably entitled to recover. To go out of the record, and listen to the mere suggestions of the parties, or their counsel, as to the case they will be enabled to present, if an opportunity is given them, is not, cannot be, the duty of the court. No instance can be found, in which even in a court of original jurisdiction, a new trial has been awarded, because of the want, at the first trial, of proof of a fact which the losing party knew of, and might have produced, or by reasonable diligence might have found out. How much stronger does the principle apply, to a motion now made in the court of last resort, for a new trial, merely to enable appellants to bring forward a fact, which if it exists, they certainly were aware of before the first trial. Besides, look at the practical injustice. The defendants may have had proof fully sufficient to negative the proposed allegation as to notice, as well as all the other matters of excuse, already stated in the pleadings. Relying on the insufficiency of the latter, they demur, and obtain a judgment. This is now affirmed, and it is proposed to send the [**51]  case back, when for aught this court can know, all the evidence the defendants had, in relation to the whole transaction, is lost to them without any default on their part. Such a course, would certainly not be in furtherance of any principle of justice.
MOTION OVERRULED BY THE COURT.  

20 of 43 DOCUMENTS 

THE MARYLAND INSURANCE COMPANY, AND PHOENIX FIRE INSURANCE COMPANY vs. BATHURST, surviving Partner of THOMPSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 159; 1833 Md. LEXIS 8 

June, 1833, Decided 

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

These were actions of Covenant instituted by Thompson & Bathurst, against the Insurance Companies, on the 17th March, 1824. Thompson died pending the causes. Issues were joined upon the pleas of non infregit conventionem.

The following statement is from the record in the case of the Maryland Insurance Company, from which the other is not supposed in principle to be distinguishable. These causes were argued, and decided together in the Court of Appeals.

1. At the trial the plaintiff read in evidence to the jury, the following policy of insurance.

"By the Maryland Insurance Company, (No. 8881.) Whereas Thompson & Bathurst, for whom it may concern, do make insurance, and cause themselves to be insured, lost or not lost, at and from London or Antwerp to two ports on the Spanish Main, and at and from thence to a port in the United States, upon the body tackle, &c. and freight of the good ship called the Budget, whereof is master John Meany, or, &c. beginning the adventure upon the said vessel, &c. at and from London or Antwerp aforesaid, and so shall continue and endure until the said vessel be safely arrived at a port in the [**2]  United States aforesaid, and until she be moored twenty-four hours in good safety. And it shall and may be lawful for the said vessel in her voyage, to proceed and sail to, touch and stay at any ports or places, if thereto obliged by stress of weather or other unavoidable accident, without prejudice to this insurance. The said vessel, her tackle, &c. for so much as it concerns the assured, by agreement made between the assured and assurers, in this policy, are and shall be valued at     without any further account to be given by the assured and the assurers, or any of them for the same. Touching the adventures and perils which we the assurers are contended to bear and take upon ourselves in this voyage, they are of the seas, men of war, fires, &c. taking at sea, arrests, &c. all kings, people of, &c. barratry of the master and mariners, and all other perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of the said vessel, or any part thereof. And in case of any loss or misfortune, it shall be lawful to and for the assured, their factors, servants and assigns, (and the assured on their part agree and engage by themselves, their factors, servants [**3]  or assigns) to sue, labor and travel for, in and about the defence, safeguard and recovery of the said vessel, or any part thereof, without prejudice to this insurance,--to the charges whereof, we the assurers will contribute according to the rate and quantity of the sum herein insured. And so we the assurers are contended, and do hereby bind the Maryland Insurance Company to the assured, their executors, administrators and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for the assurance, by the said assured, or their assigns, after the rate of ten per cent. to return five per cent. if the risk end at the first port; if at the second, two and one-half per cent. On vessel, $ 3,000--valued at ten thousand dollars. On freight, 2,000--or the proceeds thereof valued at four thousand dollars--$ 5,000. And in case of loss, such loss to be paid in ninety days after proof and adjustment thereof; the amount of the note given for the premium, if unpaid, being first deducted. In witness whereof, the Maryland Insurance Company have, by their president, subscribed the sum insured, and caused the common seal to be annexed to these presents,  [**4]  in Baltimore, the 10th day of October, one thousand eight hundred and twenty-two.

"MEMORANDUM.--1. It is agreed by and between the assured and assurers, that no loss shall be paid on any average under five per cent., unless said average be general. 2. It is further agreed, that if any dispute shall arise relating to a loss on this policy, it shall be referred to two persons, one to be chosen by the assured, and the other by the president of the Maryland Insurance Company, for the time being, which two persons shall have the power to adjust the same; but in case they cannot agree, then these two persons shall choose a third, and any two of them agreeing, their determination shall be obligatory on both parties. 3. 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 subscriptions to this policy. 4. It is also agreed between the assured and assurers, that in all cases of return premium, one-half per cent. upon the sum insured, shall be retained by the assurers. 5. It is mutually agreed by the parties to this policy, that no part of the premium shall be returned or abated, on account of any deviation [**5]  which shall be made by the owners or their factors, from the present voyage. 6. Warranted by the assured free from any charge, damage or loss, which may arise in consequence of seizure or detention of the property, for or on account of any illicit or prohibited trade. And in case of capture or detention, the assured renounces all claim against the company for damage, seamen's wages or provisions: and should the said ship not be heard of within twelve months from the time she leaves her last port, then she shall be deemed a loss, which the company engages to pay without further delay--($ 5,000.)--Five thousand dollars. John Hollins, Prest."

And the order on which the same was founded, which is in the following words:--"Extract of a letter received from Capt. John Meany, of the ship Budget, dated London, 3d and 4th September, 1822. I have chartered the ship to go from this port or Antwerp, to one of the following ports in the Colombian government--Laguira, Porto Cabello, Santa Martha, or Carthagena. We commence loading this day, and will dispatch immediately. The ship is in complete order--stands A, No. 1 at Lloyd's--has been docked, caulked all over, coppered with 24 oz. copper--has [**6]  two suits of sails, one almost new; 4 anchors, and 4 cables, two of the cables chain. She has been put in complete order in rigging, &c. If she should go to Antwerp, which is not probable, I will get the insurance done here; so that you will make the insurance from either of those ports,--say $ 8,000 on ship, and $ 2,000 on freight. As some freight may offer at Laguira, that would prevent my returning to the United States--in that case there should be a return premium."

"Insurance is wanted as above, against all risks, for account of all whom it may concern, and in case of loss, the amount to be paid us on the above named ship Budget, $ 8,000, valued at $ 10,000, and freight $ 2000, or the proceeds thereof, at and from London or Antwerp, to one or two of the above named ports on the Spanish Main, and at and from thence to a port in the United States, expected to be Baltimore. What return if only one port on the Spanish Main is used, and what return, should the risk end there? Thompson & Bathurst. Baltimore, Oct. 9th, 1822. "Answer." Freight valued at $ 4,000; 10 per cent--to return 5 per cent. if the risk end at the first port; if at the second, 2 1/2 per cent."

Which said [**7]  order, with the offer of the defendants noted thereon, was on the following day, to wit: the 10th October, again presented to the defendants by the plaintiffs, with the following endorsement:--"Although our advices give us no reason to believe there will be any articles contraband of war, on board the ship Budget, still, as we wish to be covered against all possible risk, we request your reconsideration of the within application, including articles contraband of war. T. & B. October 10th."

To which an answer was returned by the defendants in the following words, written on said order, viz: "As yesterday, including articles of war, $ 3,000 on the vessel--$ 2,000 on the freight."

And the same was accepted by the plaintiffs, in the following words, viz: "$ 5000 is accepted. T. & B."

And the plaintiff also gave in evidence the following letters, which were admitted to be the whole correspondence between the parties.

"Baltimore, 12th March, 1823. To the President and Directors of the Maryland Insurance Company,--Gentlemen: Having received advice from Captain Meany, that he had purchased the ship Budget, after her being condemned and drawn on us for amount of costs and [**8]  disbursements, we wish to know if we may calculate on receiving from you the amount insured in your office, at the stipulated time expressed in your policy--say 90 days from proof of loss. We remain, most respectfully, your obed't servants, Thompson & Bathurst."

"Office of the Maryland Insurance Co. 12th March, 1823.--Gentlemen: In reply to your note of this date, we have only to state, that not having seen Captain Meany's protest, we cannot satisfactorily make you a reply, because on it mainly depends the ground for payment, which (when presented) if found in order, the loss is payable in ninety days after proof and adjustment thereof. Very respectfully, &c. John Hollins, President. (Endorsed) "Messrs. Thompson & Bathurst, Baltimore."

"Baltimore, May 7th, 1823. To the President and Directors of the Maryland Insurance Co.--Gentlemen: We abandoned to you on the 6th February last, the ship and freight of ship Budget, insured in your office by policy No. 8881, and at same time handed you a certified copy of the condemnation of said ship at Porto Rico. The period of time required by your policy for payment of loss, after proof thereof, having now expired, we beg leave to call [**9]  upon you for the amount thereof. We remain, gentlemen, your obedient servants, Thompson & Bathurst."

"7th May, 1823. Messrs. Thompson & Bathurst,--Your favor of this day has been received, and has had the attention of the board of directors, in reply to which they refer to their note to you of the 12th March past, respecting the claim you call for, on the ship Budget and freight insured by this company in policy No. 8881. Being still without a protest and copy of the proceedings of the court at Porto Rico, no claim can possibly lay against us; but as the vessel is now here, no doubt they can be produced. It is important also to see the log book. Jno. Hollins, President."

"Baltimore, 21st May, 1823. To the President and Directors of the Maryland Insurance Co.--Gentlemen: Having handed you all the documents we have received, respecting the capture of the ship Budget, insured in your office, and which we presume you will find conclusive, we have now to request you will arrange and settle with us for the loss. Should you deem any other documents as necessary to elucidate the condemnation of the ship, by your pointing them out to us, we will undertake to get them within a reasonable [**10]  time, if it be possible to procure them. We remain with respect, your obed't servants,

Thompson & Bathurst."

"24th May, 1823. Messrs. Thompson & Bathurst,--Your letter of the 21st inst. has had the attention of a full board of directors, who have instructed me to inform you that they will advance to you $ 4,498.75, on receipt of your and R. Oliver's, Esq. joint note at six months, bearing interest; at the expiration of which time, or sooner if convenient, you are required to produce to this company the following documents, relative to the ship Budget, viz: the proceedings of the court at Porto Rico, the log book, or an authenticated copy thereof; the charter party, or copy authenticated; upon the receipt of which, and their proving satisfactory, an adjustment of the loss will take place.

Jno. Hollins, President."

"Baltimore, 26th May, 1823. To the President and Directors of the Maryland Insurance Co.--Gentlemen: We have received your respected letter of the 24th inst. to which we pay due note. Although we consider the proofs already handed you as fully establishing the capture and condemnation of the ship Budget, still we do not hesitate in trying to procure the [**11]  documents you have pointed out as necessary, and have therefore written for them by a vessel that sailed yesterday for Porto Rico.

We should esteem it an accommodation, your now paying us the loss in the same manner the Phoenix Insurance Company have done, viz: by our giving our note for the same at six months date, with interest, being as a security for our procuring such further documents as may be requisite; but we prefer forfeiting that temporary advantage to giving a note in the manner you prescribe. We remain with respect, gentlemen, your obed't serv'ts, Thompson & Bathurst."

28th May, 1823. Messrs. Thompson & Bathurst,--Your respects of the 26th instant have had the attention of the Directors of this company, who have instructed me to inform you, that the proofs produced in the case of the ship Budget, are not satisfactory, or such as are usually produced by the assured in similar cases, to entitle the assured to claim a total loss; on that score, we beg to refer you to our letter of the 24th, and what we verbally communicated some time ago: with respect to an accommodation, we have no objection to grant one to the extent treated of in our last, on your note with satisfactory [**12]  security, which is in conformity with the custom of this company, and from which we cannot deviate; at the same time we wish you to understand, that it is neither meant nor intended as paying a loss, which in our opinion is not fully established. Should you not approve our terms, you will of course have to wait until the documents sent for are received, and when received, if satisfactory to this company, no unnecessary delay will be made in paying the loss. Jno. Hollins, President."

"Baltimore, 22d August, 1823. Messrs. Thompson & Bathurst,--Gentlemen: Our respective boards of directors have required of us, that the Spanish documents, purporting to be the proceedings of the Court of Admiralty in Porto Rico, respecting the condemnation of the ship Budget, be returned to you to be translated into English, which we now do, and the sooner it is done, the sooner we shall be enabled to obtain the opinions of our boards, and hand you a copy thereof. With respect to the log book, as it appears the mate or the sailing master of the Budget took it, we expect it will be found and produced, as noticed in our former communications, it being of material consequence to the adjustment of the [**13]  claim. Very respectfully, &c.

Jno. Hollins, President of the Maryland Insurance Co.

D. Howland, Pres't of the Phoenix Insurance Office."

"4th March, 1824. Office of the Maryland Insurance Co. Messrs. Thompson & Bathurst,--Gentlemen: The board of directors have instructed me to inform you, that they do not consider the company answerable for the claim you make, for the ship Budget and freight insured by policy No. 8881. This opinion they have formed from the advice given by Mr. Wirt, and Mr. Purviance, who have had the case under consideration. I am also instructed to say to you, that if your note in favor of Messrs. Robt. and John Oliver, and by them endorsed, for $ 4,498.75, with interest and cost of protest, be not taken up and paid at the Bank of Baltimore, where it now lays, on or before the 10th inst. it will be handed to Mr. Purviance, to be put in suit against you and those gentlemen. We hope you will prevent this unpleasant business, but if not, you well know the blame will not be chargeable to this company. Very respectfully, &c. Jno. Hollins, President."

"To the President and Directors of the Maryland Insurance Co.--Gentlemen: We have to acknowledge the [**14]  receipt of your letter of the 4th instant, by which, we are sorry to learn, you still seem determined not to admit your liability for the loss of the ship Budget, condemned at Porto Rico. We had hoped, that the very clear and decided opinions handed you, of Messrs. Ogden and Binny, (lawyers considered as the best informed in this country on marine insurance,) would have removed all doubts, and have been conclusive on that subject. It is extremely unpleasant to us, being under the necessity of resisting the payment of our note, which our counsel have advised us to do; at the same time, we feel confident the result will prove we are in the right, and justifiable in so doing. We remain, gentlemen, with great respect, your obed't serv'ts,

Baltimore, 9th March, 1824. Thompson & Bathurst."

The following admissions and agreements, were then read to the jury.

1. It is admitted, that the paper marked C is the order for insurance, submitted by T. and B. to the defendants, when application was made for this insurance, and is the order upon which the policy was executed. That the defendants may plead the plea of non infregit conventionem, short; and under that plea may give in evidence [**15]  in their defence, any matters which could be presented, by pleading specially any of the following defences, numbered from 1 to 10 inclusive, and may put in form, any pleas embracing these particular defences, at any time before the record is made up for the Court of Appeals, if any appeal should be prayed on either side; and in case such pleas should not be put in form, the plea of non infregit, with leave as above, shall be understood to cover the following defences; and errors in pleading are, hereby, on both sides released.

Defence 1. That the defendants (underwriters) are discharged by the transportation of munitions of war, as set forth in the sentence of condemnation.

2. By the breach of blockade, committed in attempting to enter La Guira.

3. By the fact of the destination of the ship, as a member of the Colombian squadron, as stated in the record.

4. By the transportation of mariners or soldiers, disguised on the Role d' Equipage of the Budget, for the service of the Colombian government.

5. By the carrying of dispatches from the agents of the Colombian government in London, to the agents or officers of the government of Colombia, in Colombia.

6.  [**16]  By concealing circumstances material to the risk.

7. By misrepresentation upon the part of the assured, of facts material to the risk.

8. By a violation of warranty of neutrality, or of a representation of neutrality, made by the assured.

9. By the neglect of the plaintiffs to offer sufficient preliminary proofs.

10. That the plaintiffs can only recover for a partial loss.

II. It is admitted that the Budget was, in fact, at the time of the effecting of the policy of insurance in this case, and for a long time before, an American ship, and always had been so from the time of her being built. That Hugh Thompson, of the firm of Thompson & Bathurst, was, at the time of effecting this policy, her owner, and that at that time, and for a long time before, her register stood in his name, and so it appears at the Custom House in Baltimore. That the said Thompson then was, and had been for a long time before, a citizen of the United States, resident in Baltimore. That Thompson & Bathurst were at the time aforesaid, and had been for a long time before, resident merchants, trading and carrying on commerce in Baltimore. That Captain John Meany was also at that time, and [**17]  for a long time before, a citizen of the United States, resident (when in the United States) at Philadelphia, and had been for many years in the employ of Hugh Thompson, and that at the time of effecting this policy, war existed between Spain and the government of Colombia.

III. It is admitted that the record marked A, which purports to be a record of the proceedings of the Prize Court at Porto Rico, which condemned the Budget as hereinafter set forth, was delivered by the plaintiffs to the defendants, upon requisition of the defendants, in the letter of 7th May, 1823, and it is admitted the said record is duly certified.

IV. It is admitted by the defendants, that the paper marked S, purporting to be a decree or sentence of condemnation, made by the Prize Court of Porto Rico, is duly certified, and is to be read in evidence in this cause on the trial, and is the paper which was transmitted to the defendants at the time of the abandonment.

V. It is admitted, that the entire cargo of the Budget, consisted of munitions of war, and that the brig New Orleans, was a Colombian ship of war, and that Mr. Zea, was the agent of the Colombian government.

VI. It is admitted,  [**18]  that at the time this policy of insurance was effected, the Budget was in good safety at London, and sailed from thence on the voyage insured, and on that voyage, was met off La Guira by a Spanish privateer, and carried by her into Porto Rico, where she was condemned, as set forth in the record marked S, referred to in number IV, of this agreement, and that the plaintiffs, on the sixth day of February, 1823, abandoned to the underwriters.

The above agreement is made in both cases, except so much of the second article as relates to the ownership, which it is agreed is to be open to controversy on both sides, in both cases.

And the plaintiff then offered in evidence the following sentence: "Sentence--Puerto Rico, 23d December, 1822. Seen this summary instruction. Judgment respecting the capture of the corvette Budget, coming from New Orleans, under the command of captain John Meany, on the 1st instant, by the Spanish privateer schooner, called Cora, or Beunos Amigos, armed in this place, under the command of captain Don Juan Esiga. Taking into consideration the contents of the navigation documents, and others found on board, with the declarations taken in the act [**19]  of capture, and those now rendered in this tribunal, the captains, captor, and captured, second mate of the corvette, and prize master, resulting in the whole, that this vessel departed from London, on the 11th October last, with a cargo of ammunitions of war, the property of private individuals, residents of that capitol, who directed the same to Caracas, to be delivered to Messrs. Jones, Powles, Hurry & Co. with destination for La Guira, now a blockaded enemy's port, in order, that agreeably to Mr. Zea's particular intention, the Colombian navy may be put on a respectable footing, and that at the same time the brig New Orleans be armed; that a regular deposit of these articles may be established at La Guira, for the general use of the service, into which port the said corvette endeavored to enter, the said captain having orders, in case he found the same actually blockaded, to proceed with the cargo to Santa Martha, a port also occupied by the insurgents, and comprehended in the same declaration, where he was to unload, leaving them for the direction of the mentioned individuals of Caracas; that the same corvette to be offered for the service of the said squadron, when wanted, particularly [**20]  to recommend the same captain Meany to be employed in the same marine, with several other remarks contained in the same documents, which manifest the decided protection, the European, English, and the Anglo Americans, bestow on the insurgents of the continent, against all the rights, and which has been worth consideration in such a short term. His excellency agreed to declare, as in fact he declares, as good prize, the said corvette Budget, with the utensils, rigging, cargo, and every other thing she possesses, with regulation, to the last ordinance for privateering, and in the terms prescribed by the royal order, (of the 9th Feb. 1816,) the captured captain, his officers, and crew of the corvette, remaining at the disposal of his excellency, the superior political chief governor of this province, with regulation to the contents of the 58th article of the same ordinance. Thus provided, ordered, and signed by his excellency Don. Franciscus Marcus Santarda, honorary magistrate of the most excellent constitutional audience of the territory, and judge de letras of this capital, and its districts, which the notary certifies. Franciscus Marcus Santarda. Jose Maria Leda du Urbina, Royal Notary.  [**21]  "

Which sentence was enclosed to the underwriters in the letter of abandonment of the 6th of February, 1823; and was delivered to the defendants on the day on which it bears date. The defendants then produced Thomas Parker and David Winchester, who proved that it was the usage of underwriters to call for the production of the log book, as part of the preliminary proof, in all cases where it was considered necessary to satisfy the underwriters with regard to the claim of the assured, and that they knew of no instance, in which such a call had not been complied with, and that they would consider the underwriters as justified in refusing to pay a loss, in a case where the production of the log book had been demanded and refused, or its non-production not accounted for. And also proved, that the protest, and proof of interest according to the usage of the insurance offices in Baltimore, are the only usual preliminary proofs, and that the log book is never produced unless when called for. Whereupon the defendants, by their counsel moved the court, that the plaintiffs had not offered the necessary preliminary proofs to enable them to maintain this action; but the court (ARCHER, Ch. J.  [**22]  ) was of opinion, that the proofs offered were sufficient, the defendants having waived all objection to their sufficiency, by their letter of the 4th March, 1824, herein before set forth. The defendants excepted.

2. The defendants, to support the issue on their part, offered in evidence the copy of the record of the Prize Court of Porto Rico, which it is admitted, is duly certified and authenticated, and is the same paper delivered to the defendants by the plaintiff, in pursuance to the letter of the 24th May, 1823, from defendants to plaintiffs, and of their answer of the 26th May, 1823, for the purpose of showing that the original papers of which copies and translations purport to be inserted in said record, were on board the said ship Budget, at the time of her capture, and were acknowledged to have been so on board by the said Meany, the captain of said ship, in his examination upon oath, before the said Prize Court. To the admissibility of which record for the said purposes, the said plaintiff by his counsel objected, and the court sustained said objection, and refused to permit said record to be read in evidence to the jury for said purpose. The defendants excepted.

3.  [**23]  In addition to the matters offered in evidence by the plaintiff, which are stated in the defendants' first bill of exception, and hereby made a part of this exceptions, the plaintiff further to support the issue on his part, offered to swear John D. Danels as a witness to prove that the blockade mentioned in said sentence, as one of the grounds of condemnation, did not at the period of time therein referred to, exist in point of fact. To the admissibility of which evidence the defendants by their counsel objected, because the said sentence of condemnation, had been offered and relied on by the plaintiff as evidence in support of the issue on his part, as stated in the defendants' first exception. But the court overruled the said objection and permitted the witness to depose to the said fact. The defendants excepted.

4. The defendants, in addition to all the matters stated in the foregoing exceptions, and which are hereby made a part of this exception, offered in evidence the following letter, which it is admitted was written by Thompson & Bathurst, and received by John Meany, the captain of the said ship Budget. "Baltimore, Nov. 27th, 1821. Captain John Meany, supercargo of the [**24]  ship Budget: Dear Sir--On the arrival of the ship Budget at New Orleans, we leave to your good judgment to freight, or charter her in such manner as you may consider will be most advantageous for the concerned. Wishing you a pleasant and prosperous voyage, we remain your obd't h'ble servants. Thompson & Bathurst."

And also offered in evidence the following letter from Hugh Thompson to said Meany, which it is admitted was written by said Thompson, and received by said Meany.

"New Orleans, April 29th, 1822. Mr. John Meany: Sir--You will proceed in the ship Budget for London, and there deliver the goods on freight. Dispose of the staves to best advantage, and employ the ship either by freighting or any other way you think will be to our interest. If you should go to Bordeaux, call on our friends there, who will assist you in getting a freight to the United States. Write by every opportunity. If your captain does not suit, you are at liberty to discharge him. Wishing you a pleasant and prosperous voyage, I remain your obd't humble ser'vt. For Thompson & Bathurst. Hugh Thompson."

And also gave in evidence by the testimony of several witnesses, who had been for many years [**25]  engaged in underwriting, that in their judgment, the non-disclosure of the fact, that the vessel on which insurance is asked, is to be entirely laden with articles contraband of war on the voyage insured, would in the general opinion and judgment of underwriters, influence their judgment, and induce them to demand a lower premium, than if such fact was communicated. And the defendants further gave in evidence, that if at the time the said order was given, and policy effected, it had been known that the said ship would be entirely laden with munitions of war, to be used for the service of the Colombian government at La Guira, partly to arm a vessel of war called the New Orleans, belonging to the said government, and in part to establish a depot of arms at La-Guira for the service of said government; that the said ship Budget was to be offered for sale to the said Colombian government, whenever she might be wanted, and that the said Meany was to be employed in the naval service of said government, that the knowledge of said facts, or either of them, in the general opinion and judgment of underwriters, would have induced the defendants to decline said risk altogether, or to charge a much [**26]  higher premium, than that for which said insurance was effected; and the defendants further proved by the testimony of Baptist Mezick, that the said ship Budget was, when built, pierced for guns, and was readily convertible into an armed ship. And the plaintiff, further to support the issue on his part, read in evidence to the jury the order for insurance, with the endorsement thereon, which it is admitted were presented by Thompson & Bathurst to the Maryland Insurance Company, on the days of their respective dates, and that insurance was thereupon effected by the said company, for the premium stated at the foot of the first of said orders, as inserted in defendants' first exception.

And the defendants proved by Henry Thompson, a witness sworn in the cause, that he was a director in the Baltimore Insurance Office, on the 9th October, 1822, when an order, precisely in the same terms to that first laid before the Maryland Insurance Office, was presented to the Baltimore office; that after the adjournment of the board on that day, the witness met the said Bathurst, one of the firm of Thompson & Bathurst, and told him from his knowledge of Captain Meany, he thought it probable there [**27]  would be contraband on board the said ship on said voyage, and that by the order of insurance presented to the said Baltimore office, the said Thompson & Bathurst would not in that case be covered, and that thereupon the said Thompson & Bathurst, on the succeeding day, presented the explanatory order endorsed on the said first order; and also offered evidence to prove, that according to the usage and practice of underwriting in Baltimore, when it is intended the policy shall cover contraband, that fact is always stated by the party offering for insurance.

And thereupon the plaintiff offered in evidence to the jury, the following letters and endorsements:

"London, September 3d, 1822. Messrs. Thompson & Bathurst: Gentlemen--I wrote you stating that I was disappointed in not getting the freight I expected to Philadelphia, and waiting for that freight prevented my going to Bordeaux, where a freight was ready for me; in the mean time, I had an application from Hamburg, to go there, and load for Vera Cruz. The agent and myself agreed on £  1800 sterling. I waited a reasonable time, and not receiving an answer, I chartered the ship to go from this port, or from Antwerp, to one of [**28]  the following ports in the Colombian government,--"La Guira, Porto Cabello, Santa Martha or Carthagena, and to receive £  1050 sterling, and they pay all the port charges. We commence loading this day, and will despatch immediately. The ship is now in complete order. I will take the command: the captain I discharged, he being indolent, and bad habits, which endanger our lives. I have had only two men on pay during our stay in this place. From La Guira, or port of discharge, I intend going to a port in the United States--Norfolk, or Baltimore, will have a preference. I am now making arrangements to place to your credit £  200 sterling, which, with the premium, you will place to the credit of ship Budget. I would recommend your making insurance on said ship, at, and from either London or Antwerp, to one of the following ports: La Guira, Porto Cabello, Santa Martha, or Carthagena, and from the port of discharge to the United States, Norfolk and Baltimore will have a preference. The Budget stands A, No. 1 at Lloyds: she has been docked, caulked all over, coppered with 24 oz. copper. She has two suits of sails, one almost new; 4 anchors, and 4 cables, two of the cables chain. She has been [**29]  put in the completest order in rigging--and in short, in every thing to make her complete. I will ship this day a mate well acquainted with that coast. Under all those circumstances, no doubt you will have the insurance done reasonable. Mr. Henry Thompson is well acquainted with the ship, and I suppose, in the office he is in as director, she would be done the most reasonable. Some freight may offer in La Guira, that would prevent my returning to the United States. In that case there should be a return premium--there is not much prospect of such a thing taking place. There is little doubt but we will sail from this port direct to La Guira. John Meany." Endorsed, Rec'd 9th October, 1822.

"London, September 4, 1822. Messrs. Thompson & Bathurst,--I wrote to you yesterday by this opportunity, stating the particulars relating to the ship Budget, and her destination to La Guira, from London, or from Antwerp. If she should go to Antwerp, which is not probable, I will get the insurance done here, so that you will make the insurance from either of the ports, say $ 8000 on ship, and $ 2000 on freight. Yours truly, John Meany."

And also proved they were in the hand writing of said Meany,  [**30]  and that they were received at the time endorsed upon them, but which said letters were never communicated to the defendants before the policy in question was executed, except so far as they are contained in the extracts accompanying the order herein before mentioned; and also proved, that the printed forms of policies, in all cases made by defendants, contained the following warranty, to wit: "Warranted by the insured free from any charge, damage or loss, which may arise in consequence of seizure or detention of the property, for, or on account of any illicit or prohibited trade." And also gave in evidence to the jury, by Henry Thompson, a merchant of Baltimore, that at the time this policy was effected, there was not sufficient trade between London and La Guira, to employ a vessel of the size of the Budget, except a part of the cargo consisted in articles contraband of war; and the said Henry Thompson, in giving the reasons for his opinions, why he supposed that the order for insurance, as originally presented to the Baltimore office, of which he was a director, was intended to embrace contraband of war, stated, that he believed a full cargo for a vessel of the size of the Budget,  [**31]  could not be obtained to be carried, or brought from London to La Guira, without containing a considerable portion of contraband articles. And also gave in evidence to the jury, by the testimony of several underwriters of great experience, that in their judgment the disclosure or non-disclosure of the fact, that the vessel on which insurance is asked, is to be laden entirely of contraband of war, on the voyage insured, would be wholly immaterial, and would not increase or diminish the premium asked, where the order requests to be insured against contraband, or against all risks. That General Morales, commander in chief of the royal forces of Spain, in that part of the government of Colombia where the ports of La Guira, Porto Cabello, St. Martha, and Carthagena are situated, published about September, 1822, a declaration that the said ports were in a state of blockade, and which was circulated in the American newspapers, and that there was a general impression and belief, among the merchants in this country, that the said blockade was not maintained by any adequate force, and that the same amounted only to what is usually denominated a paper blockade; and that although they, the Royalist [**32]  Spaniards, did not maintain such blockade by any actual force, yet that the Spanish privateers captured all vessels they fell in with, going to or from those places, and the prize courts of Porto Rico, a Spanish island, condemned them, whether they had contraband on board or not, and that premiums of insurance were charged by the underwriters accordingly; and also proved that La Guira was one of the places included in such paper blockade; and also proved, that the ship Budget was built for, and used as a merchantman, and not peculiarly fitted for a vessel of war; and also proved, that she was a fast sailer, and that the premium of insurance on her, for the whole voyage described in the policy, if the sea risks only had been intended to be covered, would not have exceeded four per cent: and also offered in evidence, that the vessels loaded with the munitions of war, and the munitions themselves, from the United States to La Guira, and with liberty of another port on Spanish Main, and back to the United States, were insured on the whole voyage round at six per cent,--and that the risk from the United States to these places, was as great, if not greater, than from London to these places.  [**33]  And the defendants, for the purpose of showing that vessels laden in part with contraband, and destined to ports in Colombia, or other ports in Spanish America, were, when met with by Spanish vessels of war, and privateers, suffered to proceed after taking out the contraband, with the rest of their cargoes being innocent, offered as a witness to the jury, Thomas Parker, President of the Universal Insurance Company, who testified that in May, 1823, the schooner Hunter, Captain Hull, bound from Baltimore to St. Martha, Carthagena, and other places on the Main, partially laden with contraband, was captured by a Spanish privateer, and taken into Havana, where prize proceedings having been instituted, the contraband articles were condemned, and the residue of the cargo with said schooner released. And also offered as a witness Richard H. Douglass, who proved that the brig Morris, Captain Bodily, bound from Baltimore to Vera Cruz, having on board a number of muskets and flints, with other cargo being innocent, on her arrival in the latter part of April, in the year 1823, was permitted to trade with the town of Vera Cruz, then in possession of the Patriots, on payment of duties to the Royalist [**34]  Spaniards, occupying the castle of St. John D'Ulloa, which commanded the entrance of Vera Cruz,--that after some time, the said muskets and flints were discovered by the Royalist Spaniards, who seized and confiscated the same, but did not interfere with the rest of the said cargo or vessel. And also offered as a witness Frederick C. Graff, who proved that the schooner Harriet, Captain Baker, sailed from Baltimore, in March, 1822, with a cargo consisting in part of contraband, bound to Santa Martha, and Carthagena, both of which places she visited, and sold that part of the cargo not contraband, at Carthagena, and then with the proceeds of said sales in money, and the contraband articles, sailed for Chagres, and off the port of Carthagena was captured by a Spanish privateer, who took from her the money and contraband articles, and released the schooner, paying the captain his freight. That afterwards, the navy department ordered captain Biddle, of the United States ship Congress, to call at St. Jago, where the said privateer was owned, and interpose a claim for the said money so illegally taken by said privateer. And further offered evidence, that the general impression of merchants [**35]  and underwriters in Baltimore, at the period when this insurance was made, was, that vessels sailing from the United States to ports in Colombia, and other ports in South America, with cargoes not contraband in whole, or in part, would be permitted to pass and proceed to their respective places of destination without interference, or capture by Spanish privateers.

And thereupon the plaintiffs offered evidence to show, that the general impression of merchants and underwriters in Baltimore was, that vessels sailing from the United States to ports in Colombia, and other ports in South America, with any kind of cargoes, whether contraband or not, were after the proclamation of Morales relative to the blockade, as hereinbefore referred to, captured by Spanish privateers, and condemned in the Spanish tribunals. And also offered in evidence by John D. Danels, that the port of La Guira, from the 1st of October, 1822, to the 1st day of January, 1823, was never blockaded in fact, and that during that period the Colombian squadron had a decided ascendancy in that neighborhood. And the defendants gave in evidence that the said ship Budget was not a remarkably fast sailer, and that the rates [**36]  of premiums on vessels, proceeding from ports in the United States, to ports in the government of Colombia, with cargoes of contraband, were from six to seven and a half per cent., but that the vessels so insured were remarkably fast sailing vessels, and were of a class generally named clippers, and built expressly for the purpose of such voyages. And they further gave in evidence that the risk of a contraband cargo carried in such a ship as the Budget, from London to the ports of La Guira and Porto Cabello, would be much greater than in these fast sailing American vessels, going from ports in the United States in similar cases, to the said last mentioned ports. And the defendants further gave in evidence, by several underwriters of great experience, that underwriters, in calculating their premiums on orders of insurance, do not estimate the risk as the worst possible which can arise under such order, and charge accordingly.

And thereupon the defendants, by their counsel prayed the court to instruct the jury--

1. That the terms of the order for insurance, and of the policy in this case, amount to a warranty that the ship Budget was a neutral ship, bound upon a mercantile [**37]  voyage, with a permission to carry some articles contraband of war, but in every other respect to be employed and navigated as a neutral ship; and if the jury find, from all the evidence and admissions in the cause, that the ship Budget, on the voyage insured, was entirely laden with munitions of war, and that the same were destined for the service of the Colombian government at La Guira, partly to arm a vessel of war called the New Orleans, belonging to the said government, and in part to establish a depot of arms at La Guira, for the service of the said government; or that the said ship was to be offered for sale to the Colombian government, whenever she might be wanted; or that the said Meany, captain of the Budget, was to be employed in the naval service of the said government; or that a breach of blockade was committed by the Budget, as set forth in the sentence of condemnation of the Prize Court of Porto Rico; that then the policy is violated, and the plaintiff is not entitled to recover.

2. That the terms of the said order for insurance amount to a representation, that the Budget was a neutral ship, bound upon a mercantile voyage, with permission to carry some articles [**38]  of contraband of war, but in every other respect to be employed and navigated as a neutral ship; and if they believe from all the evidence and admissions in the case, that the ship Budget, on the voyage insured, was entirely laden with munitions of war, and that the same were destined for the service of the Colombian government, at La Guira, partly to arm a vessel of war called the New Orleans, belonging to the said government, and in part to establish a depot of arms at La Guira, for the service of the said government; or that the said ship Budget was to be offered for sale to the Colombian government, whenever she might be wanted; or that the said Meany, captain of the Budget, was to be employed in the naval service of said government; or that a breach of the blockade was committed, as set forth in the sentence of condemnation, that then the policy is discharged, and the plaintiff is not entitled to recover.

3. If the jury believe, that the Budget, at the time of presenting the said order for insurance, and at the execution of the policy, was in fact an American vessel, owned by Hugh Thompson, an American citizen, and a merchant resident in the city of Baltimore, that the assured [**39]  were bound so to employ and navigate the said ship, as not to compromit her neutral character and rights, except so far as they might be compromitted by the transportation of some articles contraband of war, for commercial purposes; and if the jury find, from all the evidence and admissions in the cause, that the said ship Budget, on the voyage insured, was entirely laden with munitions of war, and that the same were destined for the service of the Colombian government at La Guira, partly to arm a vessel of war called the New Orleans, belonging to the said government, and in part to establish a depot of arms at La Guira, for the service of the said government; or that the said ship was to be offered for sale to the Colombian government whenever she might be wanted; or that the said Meany, captain of the said Budget, was to be employed in the naval service of the said government; or that a breach of blockade was committed by said Budget, and that the existence of such facts, or either of them, became the efficient cause of the condemnation of the ship, and were produced by the act of the assured or their agent, that then the policy is discharged, and the plaintiff is not entitled to [**40]  recover.

4. If the jury believe, that the ship Budget was, at the time of the execution of this policy of insurance, a neutral ship in fact, that it was incumbent on the assured so to employ and navigate the ship, as not to compromit her neutral character and rights, except in the transportation of some articles contraband of war, for commercial purposes; and if the jury find, from all the evidence and admissions in the cause, that the said ship, on the voyage insured, was entirely laden with munitions of war, and that the same were destined for the service of the Colombian government at La Guira, partly to arm a vessel of war called the New Orleans, belonging to the said government, and in part to establish a depot of arms at La Guira, for the service of said government; or that the said ship Budget was to be offered for sale to the Colombian government whenever she might be wanted; or that the said Meany, captain of the Budget, was to be employed in the naval service of said government, and the existence of such facts, or either of them, became the efficient cause of the condemnation of the ship, and were produced by the assured or their agent, subsequent to the execution of [**41]  the policy, that then the policy is discharged, and the plaintiff is not entitled to recover.

5. If the jury believe, from all the evidence, that a breach of the blockade was committed by the Budget, as set forth in the sentence of condemnation; and that the ship, upon which this insurance was obtained, was an American ship, that then the policy is discharged, in as much as a contract of insurance, the object of which was to protect the assured from a loss arising by a breach of blockade, would be void in law.

6. That even if a contract of insurance against a loss from breach of blockade would be valid in law, the assumption of such a risk must arise from an express undertaking on the part of the underwriters, and as there is an entire absence of any such express undertaking in this case, the plaintiff is not entitled to recover, if the jury should be of opinion that a breach of blockade was committed by the Budget, as set forth in the decree of condemnation.

7. That the order for insurance in this cause, contains no communication or disclosure of the facts, that the ship Budget was, on the voyage insured, to be fully and entirely laden with munitions of war, or that [**42]  the same were destined for the use of the Colombian government, or that the said ship Budget, with the said Meany as the captain, were to be employed in the service of the Colombian navy; that in the absence of all evidence, that the said facts, or either of them, were disclosed to the defendants, at the time the insurance was effected,--if the jury believe that the said facts, or either of them existed--and if they further believe that the said Meany was the agent of the plaintiff in chartering the said ship Budget, and had the general management and conduct of the employment of the said ship, and that the said Meany, at the time this order was presented for insurance, and after policy effected, had knowledge of the facts before mentioned, or either of them; and if the jury should further believe, that the facts or either of them, if communicated to the defendants, would have influenced their judgment in forming an estimate of the risk, and have induced them to decline it altogether, or demand a higher premium than what was taken for effecting the policy in this cause, that then the plaintiff is not entitled to recover.

8. That the order for insurance in this cause, contains [**43]  no communication or disclosure of the facts, that the ship Budget, on the voyage insured, was to be fully and entirely laden with munitions of war, or that the same were destined for the use of the Colombian government, or that the ship Budget, with the said Meany as her captain, was to be employed in the service of the Colombian navy; that in the absence of all evidence that the said facts, or either of them, were disclosed to the defendants at the time the insurance was effected, if the jury believe that the facts, or either of them existed; and if they further believe that the said Meany was the agent of the plaintiff in chartering the ship Budget, and had the general management, and conduct in the employment of the said ship, and that at the time when he wrote his letters to the plaintiff, under the date of the 3d and 4th of September, 1822, (extracts from which were communicated to the defendants in their order for insurance,) he had knowledge of the facts before mentioned, or either of them; and if the jury should further believe that the said facts, or either of them, if communicated to the defendants, would have influenced their judgment in forming an estimate of the risk,  [**44]  and have induced them to decline it altogether, or to demand a higher premium than was taken for effecting the policy in this cause, that then the plaintiff is not entitled to recover.

9. If the jury believe, from all the evidence and admissions in the cause, that the ship Budget, on the voyage insured, was entirely laden with munitions of war, and that the same were destined for the service of the Colombian government at La Guira, partly to arm a vessel of war called the New Orleans, belonging to the said government, and in part to establish a depot of arms at La Guira for the service of the said government; or that the ship Budget was to be offered to the Colombian government, whenever she might be wanted; or that the said Meany, the captain of the Budget, was to be employed in the naval service of the said government; and that such acts or either of them were calculated to produce the condemnation of the ship, upon the event of capture, according to the habits, and common practice of the belligerent in question, that then the policy is avoided upon the principles asserted in the previous prayers, although such acts might not legally authorize a condemnation upon the principles [**45]  of the law of nations. Which instructions, and each of them, the court refused to give. The defendants excepted.

Upon these prayers ARCHER, Ch. J. delivered the following opinion.

Many very important principles of insurance necessarily arise in this case, and have been very ably and learnedly discussed.

The first question to which our attention will be directed, will be the existence or non-existence of a warranty of neutrality, or of a representation of neutrality.

The order for insurance containing the alleged representation, being referred to in the policy, and by such reference, constituting a part of the policy, whatever obligation it may create, would be considered rather in the light of an express warranty, which would require a strict performance than of a mere representation, which would only demand a substantial compliance with its terms.

It is conceded, that there exists in the order, no direct warranty of neutrality, but it is contended, that if one arises by necessary implication from the words used, an express warranty is created. We admit this doctrine, and shall examine the order to ascertain whether these inferences contended for, are necessarily [**46]  deducible from it.

This order demands an insurance against all risks, and then merely speaks of a possible danger of contraband. The amount of it then, is only this, "I apprehend danger from the peculiar voyage, guard me against every possible risk. I am ignorant of the hazard I run, for my advices are silent on the subject; my fear is, of the possibility of contraband, but you know the nature and course of the trade; as you are to cover all risks, secure yourself by an adequate premium." There is no assertion that contraband would be on board, the possibility only is asserted. If a vessel be stated to be American, there is in general, a warranty that she is American, and all the just inferences, and legal consequences which are deducible from such an assertion, flow necessarily; she must be navigated, and documented, as the laws of her nation demand. So, to say, that she sails with a sea letter is a warranty. But it must be observed, that in both these cases there is the positive averment of a fact. In this case, there is no such positive averment. That which is stated, is stated dubiously. She may possibly carry contraband, but whether she will or not, the assured's advices [**47]  are silent, or in other words, the they are ignorant of the fact. Can it then be seriously contended, that they meant to warrant as a fact, that which they apprize the office, they know nothing about? Where is the case to be found which decides that the assertion, she may possibly be an American, she may possibly carry a sea letter, amounts to a warranty? None such have been cited, none such exist; to infer a warranty from such a statement, would be to make a contract for the assured, where they never intended to make one for themselves. The ship being in fact an American, and the owners residents and citizens of this place, can make no possible difference, because her national character is not pointed to in the policy by any express designation, and the policy is "for whom it may concern." That is, it is for the plaintiffs, if they are then the owners, or any body else, neutral or belligerent, who might then be the owner, and for whom the plaintiffs may have been the agents. The expression, "to be paid to them in case of a loss," amounts to nothing against this view. For it might have amounted to a mere direction to the office to pay them in the character of agents, if in fact, such [**48]  agency had existed, in order that in such a case, they might be the more effectually indemnified in the event of loss, for the advance, not only of this premium, but of the balance of other premiums, which may have been advanced as a general agent for effecting insurances, for which advance and balance they would have had an unquestionable lien, as against their principal upon the policy itself. But if these words are interpreted to mean, that the insurance was, at all events, effected for them and them only; then the words "for whom it concerns" are contradicted, or they must be treated as if they constituted no part of the stipulation. The rule of interpretation, as we have always understood it to be, is, that you must so construe an instrument, that every word, if possible, shall have its appropriate meaning, and this we do in this instance, without violating or discarding any portion of the instrument. In aid of this view of the clause referred to, we cannot fail to remark the commercial understanding of the word contraband, as proved by one of the witnesses, that it was considered rather as having a reference to the kind, and description of the cargo, than the national character [**49]  of its owner, or of the peaceful or belligerent relation of his government towards other powers. There is then no warranty of neutrality, and considering the representation as incorporated in the policy, and constituting a part of it, there exists of course no representation of neutrality.

This leads us to the inquiry of the extent of the risk covered by this policy. The words of the policy look per se, to a promise of indemnity for all losses except those proceeding from illicit or prohibited trade; it covers the risks of neutral ownership, and of belligerent ownership. We mean the ordinary risks of such an ownership, for perhaps there may be some belligerent risks, so extremely hazardous, imminent and extraordinary, as that they could not be presumed to have entered into the contemplation of the parties, and where of course concealment might be held to vitiate the policy. But in the absence of such uncommon peculiar perils, the assurer shall, in the general phraseology he has used, be presumed to have contemplated the possibility of the greatest risk, and if they have not done so by demanding a premium commensurate with their contract, it is their own fault, and they shall not [**50]  in a court of justice be permitted to seek shelter under their own neglect, from the fulfilment of their express stipulation. And here we may be permitted to say, that the interpretation of this instrument is a question for our consideration exclusively. The same rules apply to a policy, as to all other instruments. It must be expounded by principles of law, and not by the opinions of witnesses. It is true, that where the usage of trade has assigned meaning to particular words, the courts will resort to such usage to assist them in the interpretation, and to enable them to effectuate the intention of the parties. But the assured cannot escape from a legal responsibility, change, modify or alter it, by seeking refuge in the varying opinions of commercial men, when they expressly say, they assume all risks, and no warranty exists that will justify us in limiting their responsibility. Had Thompson and Bathurst, instead of acting for themselves, been agents of the subjects of a belligerent nation, there can be no doubt that the policy covered such belligerent property, and the ordinary risks to which it would have been subjected. It was true she was registered as an American ship, but [**51]  the assurer had no right to look at this without a warranty or representation, for they might before the date of such policy have sold her to such belligerent, or had they been in treaty by their agent in London for the sale of this vessel to a belligerent, for whom they had orders in case of a purchase to insure, and Thompson & Bathurst not in fact knowing whether, at the date of the order for insurance, a sale had been effected or not, and acting in pursuance of their agency to cover belligerent ownership, if such should be the fact, or if not, to secure themselves, could there exist a doubt but that the policy would have covered either the belligerent owner, in case of a sale to him, or Thompson & Bathurst, if they had not in fact parted with their property?

The doctrine, that in such a policy the risk of belligerent ownership is undertaken, is settled in the Supreme Court of the United States. Hodgson vs. Mar. Ins. Co. of Alexandria, 5 Cranch, 100. And it is conceded, that the New York decisions have pronounced the assumption of belligerent risks. Nor do we perceive that any of the English decisions contradict in this doctrine; certainly those which have been [**52]  cited by no means impugn it. It is not our intention minutely to analyze all the authorities cited, but it may be briefly remarked, that the following principles are deducible from the cases of Christie vs. Secretan, 8 T. R. 192. Dawson vs. Atty, 7 East. 367, as explained by Lord Ellenborough, in Bell vs. Carstairs, 14 East. 374. Horneyer vs. Lushington, 15 East. 46. Oswell vs. Vigne, 15 East. 74. 1. That although all risks are assured, neutral as well as belligerent, yet the vessel insured must not induce her condemnation, by the absence of documents necessary to attest her national character. 2. That the insurance operates upon the ship whether neutral or belligerent, as she may happen to be at the time of insurance. 3. That a general insurance covers all losses from the perils insured against operating adversely, and not through the medium of any act or neglect on the part of the assured himself, or his agent, producing the loss of the property insured. 4. That for a loss of which the owner or his agent may be the efficient cause, proceeding from his act or neglect, and which in the captain will not amount to barratry; the owner is his own insurer, and his loss thus occasioned is [**53]  not covered by the policy.

Are not these doctrines reasonable and just? What is more reasonable than to say, that although the contract is silent on the subject, it should be construed as having reference to, and operating upon the character and condition of the ship, as it existed in fact at the time the policy was effected? All contracts with regard to property, are undoubtedly made in reference to it, as it exists at the time of the contract, and any change in it, altering its character or its quality, would be a breach of good faith. This principle, as it is founded in the soundest morality, will be found to pervade every branch of the law as connected with the doctrine of contracts. If the vessel be neutral, it would be then only in accordance with this universal and obvious principle, to say either, that such her character as it existed in fact, should be maintained, or if forfeited by the act of the assured, he should not make such act the basis of a claim against the insurer. But it may be said, that the highest risk of a belligerent capture is assumed, and so no injury would be done to the insurer. To this however, it may be replied, that this is the chance the insurer [**54]  takes, that the vessel may in fact be neutral, and if so, he is entitled to all the lessened responsibility growing out of such character. We do not mean to say, as seems to be intimated in the Massachusetts case, that it enters into the contract, that if the vessel be neutral, the neutral character shall be maintained; but the doctrine grows out of the soundest principles of equity and justice, as applicable to the state of the thing about which the contract is made, at the time when it is made, not as springing from any stipulations of the contract directly enforcing and coercing their observance, but as having their foundation in that sense of honesty and good faith, which the law declares shall regulate all the social transactions of man, which are the objects of its cognizance. With what pretence of equity or justice could the assured call upon the underwriter for indemnity, when his own default, or that of his agents, had occasioned the loss of the subject insured? We do not speak of such conduct on the part of the captain as may be barratrous, for that is expressly assumed, but of the other acts and defaults of the captain not amounting to barratry.) The most labored train of [**55]  reasoning could not make the proposition clearer, than the statement of the interrogatory itself, which must receive its response in that sense of justice, inherent in the breasts of all mankind. A policy against all risks will not cover the frauds of the owner, Groix vs. Knox, 1 John. Ca. 340; nor his misconduct, nor his voluntary acts inducing loss; for it is impossible to presume that these risks entered into the contemplation of the parties, and if they did, would it not be manifestly against the policy of the law to support them? Mr. Philips condemns the validity of a policy bottomed upon such principles, and subjects to the same fate, an insurance against the party's own negligence, as it would place one man completely in the power of another, and would be injurious to the parties, and to the community of which the assured and insurer were members. Mr. Justice Kent says, in the case above referred to, that "insurers are not liable for losses arising from even the mistakes of the owner or captain." And why should they be? The captain and mariners are the agents of the owner in the navigation of the ship, and in virtue of the existence of such agency, he is answerable for their [**56]  conduct in this respect, and is his own insurer for losses proceeding from such conduct. This doctrine is not confined, as has been contended, to such acts as leave the ship without the necessary documents, to attest her national, or neutral character, but to other acts, inducing a loss. If a vessel be partly laden with powder, and she is blown up by the negligence of one of the mariners, the underwriters are not answerable. So it has been held, that if a captain of a neutral vessel resist a search, when it is rightfully demanded by belligerents, or attempt to rescue a vessel sent in by a belligerent captor, the loss cannot be recovered of the underwriter. So in the cases of Horneyer and Lushington, and Oswell and Vigne, the having on board simulated papers was the act of the captain, not affecting the character of the ship; for that was admitted, in the sentence of condemnation, to be Russian in the one case, and Swedish in the other. In short, in all policies, general or special, the assured always undertake for the faults and negligence of their own captain, or for his unskillfulness, and he cannot be heard to ask in a court of justice for indemnity for losses proceeding from such [**57]  causes, the risk of which the underwriters never undertook.

We cannot accede to the doctrine, that the cases in East, proceeded upon the ground of the unseaworthiness of the vessel. It is a conclusive answer to this argument, to say, that had this been the foundation of their judgment, the decision in Dawson & Atty, would have been different from what it was. For if the absence of a ship's necessary document made her unseaworthy, the owner of the goods insured could not in that case have recovered. For his contract would have been infected by the condition of the ship, although he were not owner.--Being unseaworthy the policy would have been discharged. Besides, if these various cases could have been put upon this ground, it is inconceivable that Ld. Ellenborough should have so labored to place them upon other grounds. Had the implied warranty of seaworthiness any thing to do with the determination in Bell and Carstairs, the possession of all documents to show national character, would have been held, to be necessary at the commencement of the voyage; this implied warranty always operating at that moment; yet his lordship declares, that the possession of such documents are only [**58]  necessary in case of capture, or when their production becomes material; the want of them at any other time, or for any other purpose, is immaterial, and the want of them is immaterial even in the case of capture and condemnation, unless the absence of such paper is the efficient cause of condemnation. We may in fine, observe, that we discover in these cases, the development of no new or extraordinary doctrines, but the application of the first, elementary and best established principles of the law of insurance to the cases then before the court.

We shall now consider the vessel in two lights. 1. Either as a belligerent transport, or, if not in that character, as having a death wound inflicted on her neutrality, by the trade in which she had embarked before the policy began to operate.

2. As a neutral vessel insured against all risks which underwriters in a general policy assume, except prohibited trade; but that the acts complained of as changing her character into a belligerent, took place after the policy began to operate, and that the condemnation proceeded upon that ground.

Taking either view, it will be found, as we conceive, that the cause of condemnation is covered [**59]  by the terms of the policy, and the risks assumed.

In the consideration of the first question, we shall not stop to inquire, whether she were in fact a belligerent vessel, and had lost her neutral character, at the date of the policy, but shall assume the truth of the proposition for the sake of this inquiry. It may, however, be observed, that the policy began to operate but the very day before her departure from London, and whatever hostile footsteps, if any, were impressed upon her, were made before the date of her policy. The charter party had been made nearly a month before her cargo was on board; and it is fair to presume, that all documents and papers which were found on board at the time of the capture, were with her when the policy began to operate. The fact of her neutral ownership, and her being documented as a neutral, could not affect the question; for if she were, in fact, in the service of one of the hostile powers, all the world, notwithstanding her ownership and documents, would have considered and treated her as a belligerent vessel.

Assuming then the truth of the proposition, that she was a belligerent vessel at the date of the policy, let us recur to some [**60]  of the results which we have endeavored to establish. We have seen,

1. That a general policy covers belligerent risks.

2. That the policy operates upon the character of the ship at the time of insurance, and as a corollary from this, 3dly. That a change effected in the character of the object insured, and operating as the efficient cause of condemnation, must be made after the inception of the contract of insurance, to have the effect of discharging it.

If we have succeeded in maintaining these positions, the conclusion inevitably follows, that the vessel being belligerent when the policy was effected, it operated upon its character as it then existed, and if her hostile attitude and character be construed to be the ground of condemnation, then the loss is within the policy.

The second general inquiry we propose making, assumes the fact, that this vessel was neutral when the policy was effected. She is admitted to be neutral, and to have been documented as an American ship, but, independent of these admissions, it assumes the further fact, that the acts complained of, as effecting a change in her from a neutral to a belligerent, were done after the date of the policy,  [**61]  and this presents three inquiries for consideration.

1. Was such change, if any, produced by the act or default of the captain or owner.

2. Was such act or default the efficient cause of condemnation, and

3. Was such cause of condemnation uncovered by the policy.

Having regard to the above assumption, and supposing that the acts done converted her into a belligerent; if these inquiries are answered in the affirmative, then the policy is discharged, if there be any truth in the reasoning and views taken by us in the former part of this opinion.

It appears that the cargo belonged to residents of London, and was consigned to a commercial house in Caracas, with an ultimate destination for the Colombian service. It is by no means certain from the sentence, whether Capt. Meany knew of the ultimate destination of this cargo. It is not believed, that any of the ship's papers, if made in the ordinary form, would show more than the character of the goods, and the name of the consignees. But the destination of the cargo, in all probability, was fixed and ascertained by the shipper's letters of advice to the consignees, or by the communications of Mr. Zea, if there were [**62]  any on board, or if there were not, his intentions with regard to this property might have been intimated in the shipper's letters to the consignees, or if not there ascertained, was found to exist in other documents or communications on board the vessel, or were proved by the declarations of Capt. Meany. But his knowledge is entirely immaterial. If he did know it, he must be considered as an actor in these transactions; and if he did not know, it was owing to his default, that letters of advice, or any other document, or papers were taken on board which would jeopard the neutrality of his vessel, and subject her to forfeiture and confiscation. He had a right to guard himself against the reception on board of every document, letter, or paper, which could tinge his property with a belligerent stain, and having the right, it was his duty to do so, and being his duty, it was his default in having them there. So, that viewing the case in any light, if these transactions converted the vessel from a neutral into a belligerent, the act, or the default of the captain was the efficient cause of condemnation.

We have said, that the act or default of the master was the efficient cause of [**63]  condemnation; this general expression however, we desire should be taken with this qualification, that the sentence proceeded upon the ground that the ship was by such act or default converted into a belligerent transport, or lost her character as a neutral; if this be not the fair interpretation of it, but it did actually proceed upon the ground of contraband, it would be a risk, expressly covered, and all the acts and proceedings of the master in relation to the shipment, &c. so far from being any default on his part, would have been proceedings in furtherance of the objects of a legitimate neutral voyage, and covered by the stipulations of the parties. The contraband character of the shipment being in that case the efficient cause of condemnation, and not any act or default of the master, changing the character of the thing insured.

And here we are led to the inquiry, what was this ground of condemnation? and particularly its nature and character, as effecting the matter in controversy between the parties to this suit?

Before we proceed to an examination of the facts averred in the sentence, it may be well to fix certain principles in order to enable us to arrive at proper [**64]  conclusions from the facts.

The policy of the nation is especially that of a neutral. It is dictated by the habits of our people, the character of our institutions, and our remote and local condition. Whatever discrepancy, therefore, there may exist among the writers upon inter-national law, upon the subject of the lawfulness of a contraband trade, it should be the duty of courts of justice, looking to this essential policy of the nation, to maintain such doctrines as would be calculated to extend our trade, not to limit and restrain it, provided such doctrines can be supported by writers of acknowledged authority. Vattel, 402. Although he admits the right of belligerents to confiscate contraband goods, he seems as implicitly to admit, the right of a neutral nation to trade in all articles in time of war, which she could in time of peace. He says, the nation at war does not oppose the right of the neutral. It only exercises its own right of confiscation, and if the rights clash with, and reciprocally injure each other, it flows from the effect of an inevitable necessity: That it is a collision which happens every day in war. Azumi altogether denies the right of confiscation, except [**65]  where the commerce in contraband is carried to places under the dominion and control of the enemy of the nation with whom she trades, unless permitted by some conventional law. But conceding the right of confiscation, derived from the tacit consent of nations, the right and lawfulness of trade in contraband is not impaired. Acting in conformity with these views, the courts of Massachussetts and New York have declared the lawfulness of contraband shipments, and of course, that the risk of such shipments may be rightfully undertaken by the underwriter. Following up this principle, and conceding that a neutral, having nothing to do with the war, should be at liberty to exercise his accustomed trade in time of war, which he enjoyed in peace, would it not follow that the neutral had a right to ship contraband, with a view to a sale to one of the belligerents, in the same manner that he enjoyed that right in time of peace, and as he unquestionably enjoys it, where sales are in contemplation to the private subjects of such belligerent? No reason exists in the one case, for a condemnation of the shipment, more than in the other. The neutral shipper cannot be presumed to have imbibed a partiality [**66]  for one of the nations at war, in the one case more than in the other, for both must be considered as undertaken for purposes of gain merely. And what is there in the different destination of such a cargo, that could mark one as contraband merely, and the other as hostile? Nothing surely, for in each case the shipper must know that his cannon and other munitions of war will be hostilely employed. In the one case, it is true, the government procures them directly, and in the other, indirectly, but his strength consists as much in the material of war in the hands of his subjects, as if he had them in his own military store houses. There is no principle growing out of the necessity of a belligerent, or his safety as a nation, which would lead us to denounce as hostile and unlawful, the cargo in the one case, more than in the other. They are in truth, both merely contraband shipments, and as neutral property, liable to capture and condemnation.

But let us suppose, that, in virtue of the consignment, the property, by delivery, became the property of the consignees, then domiciled in a belligerent country, and that they were, therefore, by the laws of war, considered liable to capture [**67]  and confiscation as enemy's property. This could only affect the cargo, and could not endanger the ship; for a neutral ship may lawfully carry belligerent property.

As far as the sentence regards the shipment, whether that shipment be considered as contraband, and the property of the neutral shipper, or as the consignee's property, and therefore enemy's property liable to capture and confiscation, the case presents no difficulties; for, in either point of view, the cargo was within the terms of the policy, and covered by it, both the one and the other being a lawful trade, and such as a neutral might rightfully embark in.

This shipment must be considered in the one light or the other. It cannot be viewed as government property, for the sentence avers the fact, that it was at the time of sailing the private property of the shippers, and it is not perceived, whatever may have been the ultimate view with regard to the cargo, how, during the voyage, it could have been divested from the shippers. The consignees had no control over it, until the delivery of the cargo, or of the bills of lading, and neither of course had taken place. So that it was, in fact, private property, and [**68]  admitted to be private neutral property at the time of sailing. But let us see the object and purpose of the shipment. It seems to have had an alternative destination, dependent on the contingency of the existence of a blockade of the port of La Guira. If that port was not blockaded, it was to be delivered to the consignees, in order that certain intentions of Mr. Zea, the agent of Colombia, resident in London, might be carried into effect, in putting the squadron on a more respectable footing; that a brig of war might be armed, and that a depot of munitions might be established at La Guira for the public service. Now, however strong this language may be, as indicating a shipment in fact for the Colombian government, it seems to be negatived by two considerations, which demonstrate a shipment in the first place, merely with a view to a sale to government; and in the second place, with a view to a general sale for the benefit of the owners, or in other words a mere commercial voyage, undertaken for commercial gain by private property holders. The property is averred, at the time of sailing, to be in the shippers; and if the port of La Guira was blockaded, the master had directions to [**69]  bear away for Santa Martha, where the consignees were to dispose of the cargo at discretion, which terms, in their ordinary acceptation, would mean a sale of the cargo to the best advantage for the owners, without regard to the public or private character of the purchaser. These considerations negative a sale to the government of this property, and the whole sentence only goes to show, that the shippers had a prospect, derived from the communications of Mr. Zea, of a sale to government, if the vessel could reach La Guira; and if it should be blockaded, their consignees must dispose of it to whomsoever they could, to the best advantage for the shippers.

But let us suppose, that the cargo was shipped under a contract to become the property of the government of Colombia on delivery, and to be there paid for; and this is the most favorable light for the underwriters in which the ground assigned by the court can be viewed, as it declares, that at the time of sailing, the shipment was the property of the shippers, which it could not have been if the government had given an order for the cargo, and it had been delivered to the master, for in such a case the title to the property would [**70]  have vested in the government considering it as the consignee. Then the cargo is neutrally owned, and is not belligerent. We are aware that the Prize Courts have determined that capture is equivalent to delivery, and that in consequence of it, the cargo would be confiscated as belligerent. But its neutral character is maintained up to the moment of capture, and the character of the cargo would be changed by no act over which the neutral owner could have any control, but by the technical principle of the laws of war, which substitutes in such case, the captor for the consignee, in order the more effectually to guard against the frauds of belligerent shipments, under the dress and appearance of neutral ownership. How far such a shipment, thus consigned, after capture and condemnation, might falsify a warranty of neutrality, it is unnecessary to determine. It is sufficient here to say, that there is no warranty of neutrality, and a shipment of belligerent property, admitting it to be such, may be lawfully made by a neutral in the absence of any warranty or representation. But could it be seriously contended, that the principle above adverted to, could convert the neutral vessel into a [**71]  belligerent transport? The vessel is transporting the property of neutrals, and is in their service, not in that of the government. She would seem to have no attribute of a hostile transport. If, by fiction of law, the property, from the moment of capture, is considered as delivered, it would seem to be a singular extension of that principle to say, that by capture, the character of the vehicle is utterly changed from a neutral, commercial vessel, into a belligerent transport, when by the capture, the vessel is considered as having terminated her voyage and delivered her cargo. If the delivery of her cargo to the enemy constituted her a transport, it might with the same propriety be maintained, that if this vessel had delivered her cargo at La Guira, and was on her return voyage, in ballast, or with an innocent cargo, that she was liable to condemnation as a belligerent transport. In such a case the position could not be maintained, nor can it be in the actual predicament of this ship, as disclosed by the sentence.

Thus much with respect to the cargo. Any or all of these considerations existing, would have rendered it liable to capture and condemnation, either as contraband or [**72]  as enemy's property, but by the laws of war would not have affected the vessel. Indeed, if any of the circumstances attending this shipment could be considered as of so malignant and aggravating a character, as to have affected the vessel in the judicial eye of a Prize Court, and to have justly subjected her to forfeiture, still, these proceedings, and this trade, being all such as a neutral might lawfully engage in, must be supposed to have been contemplated by the underwriter, is within the risk assumed, and he must be answerable.

The consideration of the transport character of the vessel must spring from the service in which she is engaged. Sir William Scott in the case of the Friendship says, that the hiring of a vessel by the agents of the belligerent, for the purpose of carrying stores in her service, constitutes her a transport. By this, he means, (and we collect his meaning as well from his words as the facts of the case he decides,) that such vessel is only a transport, if she carry the property of the government, and that in such a case she is equally a transport, as she would be if she carried a detachment of troops. There can be no doubt of the truth of this principle,  [**73]  but the considerations before urged go to show, that this vessel was in the pursuance of an ordinary, neutral, and commercial voyage, neither hired by the government, nor in her service, but in the service of private individuals, and there exists of course no foundation for considering her as a belligerent transport.

We have stated that it was clearly inferable from the sentence, that the shipment in the first instance was made with a view to a sale to the government by the consignees, and no doubt their instructions, in case of the vessel's reaching La Guira, were to that effect. But this design could not make her a transport. She must, to give her that character, be employed to carry goods belonging to the belligerent. But "she was offered, in case she should be needed, to the Colombian government." Now, suppose the vessel completely equipped for war, and built in a neutral State, whose laws did not forbid it, with intent to sell her to one of the belligerents, and she sails in pursuance of that intent, she would be only a contraband article, and such as might be lawfully transported by a neutral citizen, subject only to the conflicting right of seizure in transitu, and of confiscation,  [**74]  and such being the right of the neutral owner, the underwriter must look to the possibility of the existence of such an intent. He knows her destination is to a belligerent port: He knows the structure of the vessel, and is bound to know the course of the trade, and all the incidents and dangers to which the vessel as a neutral may be subjected; clothing this part of the case in the worst possible garb for the assured, the underwriter would be responsible. This vessel was an ordinary ship, pursuing the usual avocations of commerce, with none of those dangerous characteristics which distinguish the vessel in Robinson's reports. It is true, like all other vessels engaged in that trade, she was originally built with some adaptation to warfare, but, from the time of her first structure, she had been employed in commercial voyages. She had not the distinctive marks of warlike offence which the Brutus had, but her predominant character was commercial; so that conceding that case to be law, this would not fall within its range.--But here, it is true she was to be contingently offered to the government, and considering her as an article ancipitis usus, it might be proper to look to her contingent [**75]  destination, as determining her character to be contraband. Considering then, the fact of her being offered to the government, as converting the ship into a contraband, still a neutral owner may lawfully transport his ship with a view to a sale, and there would be no forfeiture of even a warranty of neutrality by the existence of such an intent, accompanied by a sailing in pursuance thereof.

So far then, as this ground of condemnation is concerned, whether we consider that condemnation as lawless, except as regards the goods, or as justified by the aggravating circumstances attending the shipment, or upon the ground that the vessel herself was contraband, (and in any other light, we have endeavored to show it cannot be viewed,) the assured, by it, are not prevented from recovery, even although these various acts were done after the inception of the risk. For although they might have been the efficient cause of the condemnation of the vessel, we cannot consider them as flowing from the fault or default of the owner of the vessel, or her captain, as they were all justifiable in the rightful pursuit of a lawful neutral voyage, and were of course, within the risks assumed.

The [**76]  next cause of condemnation must be passed in review. The attempt of this vessel to break a blockade of the port of La Guira.

The principles applicable to this subject, it has been adjudged by the Supreme Court of Pennsylvania, 1 Bin. 293, and by the Supreme Court of the United States, 4 Cranch. 186, are correctly ascertained by the British treaty of 1794, and that it is, in exact conformity with the law of nations. Without mounting to a more distant source, we shall look to these cases, and to this treaty, as furnishing the law on the subject.

There must be notice to neutrals of the existence of a blockade. When the Budget sailed from London, it is clear from the sentence, that she did not know of the existence of a blockade, for she had orders, if there existed a blockade, to bear away for Santa Martha. This too, manifests the absence of a sailing with intent to violate a blockade. If without notice she attempted to enter, it was the duty of the blockading squadron to have turned her away. The attempt, then, to enter without notice is not an offence, but the offence which subjects to confiscation, is the attempt to enter with notice, or after being [**77]  turned away, again attempting to enter.

Now the sentence is prima facie evidence of what it states, and all inferences which a rational mind can draw from such a statement, may legally and properly be deduced to uphold and sustain the legality of the ground. It states an attempt to enter a blockaded port merely, unaccompanied with any assertion of notice, either actual or constructive. It is then prima facie evidence of an attempt to enter a blockaded port, but not of notice, not of a turning away. This you cannot infer. We infer one fact from the proof of the existence of another fact, because the fact inferred, usually attends the fact proved. This principle is at the bottom of all the doctrine of inference and presumption. Now, the attempt to enter a besieged town regularly invested after notice, is an extraordinary occurrence, and the usual attendant of such attempts, instead of notice, is a want of notice. There is then, no ground of inference, no room for deduction; but looking at the instructions of the captain to bear away in case of a blockade, and accompany them, with the consideration of the notices usually governing men, and their customary conduct, the inference is [**78]  directly and palpably the other way, that there did exist no actual notice--constructive notice there clearly was none. There is, then, nothing to leave to the jury upon this subject, and this furnishes no ground of condemnation. But if notice cannot be inferred from the ground condemnation, can you infer it from the sentence of condemnation itself? You may support the sentence by referring to the grounds of it, but we should doubt whether the reverse of the proposition is true. The reasons must speak for themselves. These show on the part of the assured, only an innocent act, because there is no notice. But suppose it for a moment to be ambiguous, no court has heretofore, that we are aware of, resorted to the sentence to explain the ambiguity, and to support and maintain the reasons; but in such case, they look into the proceedings, and the facts therein detailed and proven, to dissipate the doubt. Would we be bound to comity to foreign tribunals to infer a legal condemnation from an ambiguous ground? Would it not be an overstrained comity, looking to the actual practices of the prize tribunals of the European nations for the last forty years? Are we, in the face of the fact, that [**79]  Spain has acknowledged that our property to the amount, at all events, of five millions of dollars, has been illegally condemned and confiscated, to proffer on our part this comity? With all these facts before us, with the remonstrances of our citizens for the last thirty years, against the violations of our neutral commerce on the part of nearly every maritime nation of Europe, (and which are now matters of history, having formed the basis of many negotiations,) if the mind would have an inclination, where there existed an ambiguity, it would be rather against the evidence than in favor of it.

It follows from the preceding views, that the prayers offered by the defendants' counsel must be rejected.

Plaintiff's Exceptions. 1. The defendants, to support the issue on their part, offered evidence to the jury, that the ship Budget, on which the policy in this cause was effected, at a sale made in pursuance of the condemnation of said ship at Porto Rico, was purchased by John Meany, her former captain, as the agent, and for the account of Hugh Thompson, in whom the interest in said ship, and her freight in this cause is averred; and also offered in evidence, that after the return [**80]  of said ship to Baltimore from Porto Rico, she came into possession of Thompson, as owner thereof, and that he exercised acts of ownership in relation to said ship, and fitted her out, and despatched her on a foreign voyage, and was considered the owner of said vessel. Whereupon the plaintiff offered evidence to prove, that the said ship, at the sale under the condemnation at Porto Rico aforesaid, was purchased by said Meany, on his sole account, and not as the agent, or for the account of said Thompson, and that after the return of said ship to Baltimore from Porto Rico aforesaid, she was continually in the possession of said Meany as his property, and that he exercised acts of ownership in relation to said ship, and that the said Thompson never meddled with said ship, after her return, but as the agent of said Meany. And thereupon the defendants, by their counsel, prayed the opinion of the court to the jury, that if they should find from the evidence, that at the sale made by virtue of the decree of condemnation of the Prize Court at Porto Rico, in evidence in this cause, John Meany, who was the captain of said ship at the time of her capture, became the purchaser of said ship or [**81]  the account of Hugh Thompson, and that said Thompson affirmed and adopted the said purchase, as so made on his account, that the plaintiff is not entitled to recover in this action, as for a total loss on said ship; which opinion the court (HANSON, A. J.) gave, and so directed the jury. The plaintiff excepted.

2.--1. Upon the whole evidence stated in the preceding exceptions of the plaintiff and defendants, which is to be considered as a part of this, the plaintiff, by his counsel prayed the opinion and direction of the court to the jury, that if the jury find from the evidence, that after the condemnation of said vessel, captain Meany, at the sale at Porto Rico, made under said condemnation, became the purchaser of the said vessel, on account of the said Thompson, without any authority from the said Hugh Thompson, except what may be held to be incident to his office as captain of said ship, and that the said Hugh Thompson afterwards ratified and adopted the purchase of said Meany, and took possession of said vessel as his own, yet, that such purchase and adoption did not convert the total loss into a partial one, and does not bar the plaintiff from recovering in this cause as [**82]  for a total loss of the said vessel. 2d. That the underwriters, if they can avail themselves in any way of such purchase and confirmation, can only claim as salvage, the difference between the actual value of the ship, at the time of the sale, and the sum paid for her by Capt. Meany. Which directions, and each of them, the court (HANSON, A. J.) refused to give. The plaintiff excepted.

It is agreed in this cause, that it shall go up, on the exceptions as agreed upon, on the part of both plaintiff and defendants, that in the event of the Court of Appeals deciding the plaintiff to be entitled to a total loss, then the verdict shall be amended, and entered for a total loss; but if the Court of Appeals should decide that the loss is an average, and not a total loss, then the verdict shall be amended, and entered for such sum as two persons, one chosen by each party, shall determine, &c.

The verdict and judgment were for the plaintiff, and an appeal was prayed by both parties to the Court of Appeals.  

DISPOSITION:
JUDGMENT ENTERED FOR A TOTAL LOSS.  

HEADNOTES:

The sentence of condemnation of a foreign prize court is evidence of the facts which it purports to decide, in an action on a policy of insurance on the thing condemned, and was conclusive evidence thereof, until the act of 1813, ch. 164, reduced it to the character of prima facie proof; but the proof upon which such sentence may have been predicated, is not, per se, admissible in such collateral action.

The record of the proceedings of a foreign court of admiralty, containing copies of various documents, and reciting the proofs of the originals thereof being found on board of a vessel, condemned by such court, at the time of her capture, is not evidence that such documents were so found, in an action upon a policy of insurance to recover the value of the condemned vessel.

Where the sentence of a Court of Admiralty condemning a vessel, recited that at the date of the decree, the port which such vessel had attempted to enter was blockaded, evidence that at the time of her capture, such port was not in fact blockaded is immaterial and irrelevant, in an action upon a policy to recover for a total loss arising from the condemnation, and although the County Court permitted such evidence after objection to go to the jury, yet it is not error for which this court would reverse the judgment.

The party who offers the decree of a foreign Court of Admirality in evidence, as proof of the loss of his vessel condemned thereby, may, since the act of 1813, contradict by proof, the facts and circumstances upon which such decree professes to be founded, where such facts are in issue between the parties to the cause in which the contradictory proof is offered.

Where the insured is informed of the loss of his vessel by capture, he need not abandon to the underwriter: but may wait to ascertain whether his property is condemned, and then claim to be paid.

If in a reasonable time after notice of capture, the insured fails to abandon, he loses the privilege of doing so, and cannot recover for a total loss on any abandonment for that cause subsequently made.

In recovering for a total loss founded upon an abandonment, the insured must prove as the basis of his action, the cause assigned in the notice of abandonment.

An order for insurance against all risks for account of whom it may concern covers belligerent as well as neutral risks; and an endorsement upon such an order, stating, "although our advices give us no reason to believe that there will be any articles contraband of war on board, still as we wish to be covered against all possible risk, we request your re-consideration of the within, including articles contraband of war," does not alter the character of the original application, nor constitute a warranty or representation of neutrality.

A court of justice may, in its discretion, content itself with a simple refusal of any prayer not sanctioned by the rules of law.

Facts of universal notoriety in the commercial world, at the time of effecting an insurance upon a particular voyage, which relate to the course of trade upon such voyage, which form a part of the public history of that time, are lights, against which a court of justice cannot shut its eyes, and of which the law imputes knowledge to underwriters.

Where an order for insurance is against all risks, or all possible risks for account of whom it may concern, upon a certain defined voyage, the insured is not bound to communicate or disclose at the time of effecting such insurance without inquiry from the underwriter, the particular circumstances connected with the voyage, which show that it is in fact a belligerent risk, as the transportation of hostile stores, troops, &c.

The obligation to disclose facts to an underwriter, is limited to such facts as would vary the risk or nature of the contract; no communication need be made of what is necessarily implied by the contract.

The English rule, that the right to recover for a total loss is not made absolute by the state of the facts on which the abandonment is founded, continuing to exist at the date of the abandonment, but is dependent on subsequent events, does not prevail here.

The right to recover of the assurer for a total loss is complete, if the loss, which is the basis of an abandonment, continues at the time of the abandonment, and of this consummate right or privilege, the assured cannot without default be deprived, but by his consent expressed or implied. It may be waived like other privileges.

If after capture and abandonment, but before condemnation, a ship be ransomed by the captain, or re-taken by the crew, or be recovered and delivered to the owners who claim and use her as their own, they possess her under no new title or right of property; and this constitutes a waiver or surrender of the abandonment.

But where a condemnation takes place, the assured, apart from all statutory regulation on the subject, is divested of all property in the ship; and in it, if purchased by themselves or their agents, they acquire a new and independent title, to which their subsequent acts of ownership are imputable, and not to their original proprietary rights. And this new title, against all the world save the underwriters, is incontrovertible; and it is conclusive against them, if they consented to its acquisition, or have waived the right to impeach it.

So where the insured vessel was captured and condemned, and purchased by the master, who drew upon his owners for the amount, and information of these facts was communicated to the underwriters at the time of making a claim for a total loss, and the underwriters did not claim the purchase, but contested their liability upon the ground of not having seen the protest of the captain; it was HELD, that they had waived their right to consider the purchase as made for their account, and could not at the trial insist that the insured had only suffered a partial loss, but were liable for a total loss.

Where notice was given to underwriters of a claim for the condemnation of the insured vessel, and they at first demanded the captain's protest, and after some correspondence the underwriters notified the insured that "they did not consider themselves answerable for the claim," this was HELD, to be a waiver of all objection to the preliminary proofs offered by the assured. 

COUNSEL:
R. B. Magruder, Purviance, Meredith, Martin and Wirt, for the underwriters, in their appeals, contended,

1. That the record, or copy [**83]  of the record of the Prize Court of Porto Rico, which was rejected as evidence by the court below, was fit and proper evidence for the purpose of showing, that the original papers, of which copies and translations purport to be inserted in said record, were in the ship Budget at the time of her capture, and were acknowledged to have been so on board by the master of said ship, in his examination upon oath before the said Prize Court, and that the said record ought to have been received in evidence for that purpose, by the court below.

2. The court below erred in admitting John D. Danels as a witness, for the purpose, and under the circumstances set forth in the defendant's third exception. Bell, et al. vs. Carstairs, 14 East. 392. Bolton vs. Gladstone, 5 East. 155. 1 Marsh. Ins. 428, 572, 435, note. Donaldson vs. Thompson, 1 Camp. N. P. 429. The act of 1813, ch. 164. 1 Phil. Ev. 232. 1 Stark. Ev. 147. Cooper vs. Smith, 15 East. 103. Lothian, et al. vs. Henderson, et al. 3 Bos. and Pul. 544.

3. The terms of the order for insurance, and of the policy, in this case, amount to a warranty, that the ship Budget was a neutral ship, bound upon a mercantile voyage, with a permission [**84]  to carry some articles contraband of war, but in every other respect, to be employed, and navigated as a neutral ship. 1 Marsh. Ins. 350. Routledge vs. Burrell, 1 Hen. Black. 254. Ib. 257. Worsley vs. Wood, 6 Term. Rep. 710. Ib. 720. And the court, and not the jury, is to expound the contract. Ferris vs. Walsh, 5 Har. and Johns. 308. Horneyer vs. Lushington, 15 East. 51. Worsley vs. Wood, 6 Term. Rep. 718. No precise form of words is necessary to constitute a warranty, which may be implied by the court. Goix vs. Low, 1 Johns. Cas. 343. Ib. 341. Duff vs. Lawrence, 2 Ib. 170. Philips on Ins. 135. Such an implication may be made from the assertion, that the vessel was owned by an American citizen. Stocker vs. Merrimack Co. 6 Mass. Rep. 220. Kimble vs. Rhinelander, 3 Johns. Cas. 130. And such an inference was fairly deducible from the declaration, that contraband might be on board,--as contraband, can only be predicated of a neutral ship. The Commercen, 1 Wheat. Rep. 390. If there was a warranty, a literal, and not a mere substantial compliance was necessary. De Hahn vs. Hartley, 1 Term. Rep. 343. Bean vs. Stupart, Doug. 11.

4. If the terms of the order did not amount to a warranty,  [**85]  they did to a representation of the neutrality of the ship, and if it was untrue, the policy was discharged. 1 Marsh. on Ins. 450. Phillips on Ins. 82. Goold vs. Shaw, 1 Johns. Cas. 302.

5. The Budget being at the time of presenting the order for insurance, and at the date of the execution of the policy, an American vessel, owned by an American citizen, and merchant, resident in the city of Baltimore; or being a neutral ship in fact, and having sailed on the voyage insured, entirely laden with munitions of war, which were destined for the service of the Colombian government, and being in fact, destined to become herself a member of the Colombian squadron; and Meany, the captain, being destined to be employed in the naval service of said government, and a breach of blockade having been committed by said ship, compromitted her character, as an American, or neutral ship, or as a merchant ship, and by the commission of the said acts, or any of them, became a belligerent transport, or forfeited the character under which she was bound, according to the contract of insurance to sail, and conduct herself during the voyage, and so avoided the policy. The sentence of condemnation is evidence [**86]  of the facts upon which it was grounded. Marshall vs. Parker, 2 Camp. 69. 1 Marsh. Ins. 392, 424. 4 Cranch. 494. 6 Taunt. 375. Everth vs. Hannam, 1 Serg. and Low. 415. If in point of fact, the vessel has become the property of a belligerent owner, the words, "for whom it may concern," would not cover her. 3 Taunt. 285, 298. Bell, et al. vs. Carstairs, 14 East. 391. Ib. 393. Oswell vs. Vigne, 15 East. 70. Ib. 72. Ib. 74. Ib. 76. Horneyer vs. Lushington, Ib. 46. Ib. 49. Stocker vs. Merrimack Co. 6 Mass. Rep. 228, 229. Goix vs. Low, 1 Johns. Cas. 343. Suckley vs. Delafield, 2 Caine's Ca. in Err. 221. Seamans vs. Loring, et al. 1 Mason 141. Phillips, 113, 119. They referred also, in support of this point, to The Orozimbo, 6 Robins. 430. The Commercen, 1 Wheat. 382. The Richmond, 5 Robins. 290. The Brutus, Ib. 270. Phillips, 120. Marine Ins. Co. vs. Woods, 6 Cranch. 45.

6. A contract of insurance upon an American ship, the object of which contract was to protect the assured from a loss arising by a breach of blockade, would be void in law. Taylor vs. Sumner, 4 Mass. Rep. 58. Seton & Co. vs. Low, 1 Johns. Cas. 5. 1 Marsh. 181, 55, 56. Phillips, 35. Evans' Essays, 52. The Vigilantia,  [**87]  1 Robins. 13. The Flad Oyen, Ib. 144. The Henrick and Maria, Ib. 146. 2 Brown, Ad. Law, 314. Vattel, 501.

7. If, however, such a contract of insurance would be valid according to the law of nations, there must be an express undertaking, to that effect, on the part of the underwriters. It cannot be implied. Miller on Ins. 136, 144, 179, 188. Luckley vs. Delafield, 2 Caine's Cas. 221.

8. The concealment, or failure on the part of the assured, to communicate to the underwriters, the facts set forth in the seventh and eighth prayers of the defendants, was a concealment of circumstances material to the risk, if the jury believed the facts set forth, and vitiated the policy in this case. 2 Marsh. 461. Kohne vs. Ins. Co. of N. A., 1 Wash. C. C. Rep. 93. Ib. 123. Ib. 158. Coxe Dig. 386. It is no answer to say, that the plaintiffs had no knowledge of these circumstances themselves. They are responsible for the knowledge of Meany, and are to be dealt with, as though every circumstance known to him, had been known to them. Hughes on Ins. 350, 354. Fitzherbert vs. Mather, 1 Dur. and East. 12. Gladston vs. King, 1 Maul. and Selw. 35. Gen. Int. Ins. Co. vs. Ruggles, 12 Wheat. 409. 1 Marsh. 307, 481.  [**88]  1 Park. 287, 319. Carter vs. Boehm, 3 Burr. Rep. 1905, 1909. 4 Dows. Par. Cas. 97. The risk was essentially increased in consequence of the cargo being wholly contraband, there being a wide difference between such a cargo, and a miscellaneous cargo having some contraband. In the one case, the entire freight and expenses are forfeited; in the other, only on the contraband articles. The Nancy, 3 Rob. 91. Besides, from the representations of the assured, there was a strong probability that the cargo would be entirely innocent. Carter vs. Boehm, 3 Burr. Rep. 1915. Dows. Rep. 97. It was presenting an alternative risk, when at the time, the assured knew there was no such alternative. That an insurance against all risks, and for whom it may concern, without any qualification, and standing alone, covers all risks, is admitted; but these terms may be controlled, not only by other parts of the policy, but by the order, or representation of the assured. Urquhart vs. Barnard, 1 Taunt. 450. Macdonell vs. Fraser, Doug. 260. Neilson vs. D'Lacour, 2 Esp. Rep. 619. Buck & Hedrick vs. Chesapeake Ins. Co. 1 Peters, 151. Campbell et al. vs. Innes, 4 Barn. and Ald. 422.

9. The failure to communicate [**89]  to the underwriters, the facts set forth in these prayers; and the manner in which the assured did communicate other facts, amounted to a misrepresentation on their part, of facts material to the risk, and vitiated the policy. Considering the assured as having all the knowledge that Meany had, (and they are bound by it, whether actually known to them or not;) the question is, were they not guilty of a misrepresentation where they said, there might possibly be some contraband articles on board, when they knew that she was not only to be entirely loaded with such articles, but that both ship and cargo were destined for the service of the Colombian government? According to the true state of the facts, the voyage was peculiarlyperilous; when the information communicated to the underwriters was calculated to produce a belief, that the risk was an ordinary commercial risk, enhanced by a small quantity contraband articles. Independent of the forfeiture of the cargo, consequent upon a capture, under such circumstances, its destination to the agents of a belligerent government involved the forfeiture of the ship also, she being converted by such employment into a belligerent transport. The [**90]  Commercen, 1 Wheat. 391, 392, 393. The Friendship, 6 Robinson, 425. The Orozimbo, Ib. 430.

The first exception of defendant's was abandoned.

Upon the plaintiff's exceptions, they argued, that the contract of insurance is a contract of indemnity merely, and that any act of the assured, after the vessel returns to this country, manifesting an intention to adopt the act of recovery as his own, is for the benefit of the underwriters, and converts a total, into a partial loss. 1 Caine's Ca. 296. note, Ib. 41, 42.

Up to the period of abandonment, the captain is the agent of the owner; subsequently, he is the agent of the underwriter. Phillips, 468. If subsequent to the abandonment, the assured purchase the property, he waives the abandonment and cannot recover for a total loss. Ogden vs. the Fire Ins. Co. 10 Johns. Rep. 179. Ogden vs. the Fire Ins. Co. 12 Johns. Rep. 31. After condemnation, a purchase by an agent, is for the benefit of the assured, or the underwriter, and not for that of the agent. Oliver et al. vs. Newburyport Ins. Co. 3 Mass. Rep. 64. Unit. Ins. Co. vs. Robinson, 2 Caine's Cas. 280. Robinson & Hartshorne vs. Unit. Ins. Co. 1 Johns. 592.

Taney, (Att'y [**91]  Gen. U. S.) Johnson, and Glenn, for the assured.

Second Exception. As to admissibility of the record of condemnation, for the purpose for which it was offered.--Judgments in courts of admiralty in this respect, stand upon the same footing as domestic judgments, and though the latter are binding between the parties, and privies, the evidence upon which they are founded, is not admissible, in subsequent controversies, even between such parties.--Karthaus vs. Owens, 2 Gill and Johns. 445.

The only exceptions to the rule, are, when the witness, whose evidence is desired, is dead, then his very words must be proved; or when the fact to be proved, is in relation to pedigree. Chirac vs. Reinicker, 2 Peters, 613.--Upon the question of prize, or not, the judgments of courts of admiralty are binding upon all the world. Croudson et al. vs. Leonard, 4 Cranch. 436. Considering the judgments of courts of admiralty, in reference to the evidence upon which they were obtained, as domestic judgments, the rules applicable to the one, are applicable to the other, The Marine Ins. Co. vs. Hodgson, 6 Cranch. 206. The record was not offered to show the state of the pleadings, but to show, by the [**92]  deposition of Meany in the Prize Court, that certain documents were on board at the time of the capture. For this purpose it was not admissible. The Marine Ins. Co. vs. Hodgson, 6 Cranch. 210. Fitzsimmons vs. Newport Ins. Co. 4 Cranch. 191. Besides, there are many papers in the record in question, which have nothing to do with this controversy; and as the defendant offered to read the whole without discrimination, if there were any not admissible, the court did right in rejecting the whole, though it might have been proper to read some one, or more. Ellicott vs. Piersoll, 1 Peters, 337.

Third Exception. If this exception can be maintained, we are carried back to the state of things which existed prior to the act of 1813, ch. 104. The plaintiff, as he went for a total loss on account of the condemnation, was bound to produce the sentence; and then, as is argued on the other side, he would lose his right to recover, if there should be any thing in the sentence to show a breach of blockade, or any other violation of the contract, on the part of the assured. 7 Cranch. 432. And this would be the case, no matter how repugnant the sentence might be to the law of nations. It was this [**93]  very evil which led to the passage of the act of 1813.

Fourth Exception. The form of the prayers in this exception is such, that unless the defendants are correct in each alternative, they cannot reverse the judgment; a distinct prayer not being made on each. They are all connected, and the prayers are based upon the truth of all the alternatives. If there is no evidence in support of any one, or the defendants in point of law are not entitled to all of the instructions prayed, they cannot have the benefit of any, though this court may think, they would be entitled to some of them, if they had been presented in the form of a distinct prayer. And it was incumbent on the defendants to show, that they had offered evidence in support of each of their alternative prayers, from which the facts assumed might be found by the jury. It was not the duty of the court to discriminate, and grant such as were right, and refuse the others; but if some were wrong, they were justifiable in refusing the whole. Newson vs. Douglass, 7 Harr. and Johns. 417. Elliott vs. Piersoll, 1 Peters, 337, 338. Allegre vs. Maryland Insurance Company, 2 Gill and Johns. 136. But suppose the court should have separated [**94]  these instructions, and decided them singly, still it is contended, that their judgment is correct.

1. A general policy against all risks, and for whom it may concern, covers all risks, contraband and belligerent. Hagedorn vs. Oliverson, 2 Maul. and Selw. 485. Buck and Hedrick vs. Chesapeake Insurance Co. 1 Peters, 151. Allegre vs. The Maryland Ins. Co. 2 Gill and Johns. 163. Hodgson vs. Marine Ins. Co. 5 Cranch. 109. Etting, et al. vs. Scott and Seamen, 2 Johns. Rep. 162. It follows therefore, that the failure of the assured, to communicate to the underwriters, that he intends to carry a contraband or belligerent cargo, can have no effect upon the policy; as the very terms of the contract are evidence of such an intention. Carter vs. Boehm, 3 Burr. Rep. 1911.

A party would never ask for an insurance against all risks, unless he contemplated the probability of a contraband or belligerent cargo, as it would be useless to enhance the premium. Buck and Hedrick vs. The Chesapeake Ins. Co. 1 Peters, 160. The case at bar, is stronger than the case in 1 Peters, as it is manifest from the order of this case, that the assured did not, and could not know, of what the cargo would consist,  [**95]  nor to whom it would belong, and as a prudent man, he could only effect such an insurance, as would embrace perils of every description. In the order of the 9th of October, asking for insurance against all risks, and for whom it may concern, nothing is said about contraband, or from which a neutral character could be inferred; and consequently the risk asked, was a belligerent risk, of which the underwriters are treated, as having knowledge. If the case stood upon that order, it would be free from all doubt, upon the authority of the case of Buck and Hedrick in 1 Peters. That the explanatory order of the 10th, did not, in the opinion of the underwriters, change the character of the risk, and reduce it from a war, to a peace risk, is proved by their refusal to reduce the premium. There was then, no deceit in the second order, and all parties considered the risk as remaining as it was before.

The second order was submitted, because some of the Baltimore policies contained a warranty against contraband, which if introduced must be complied with, whether material or not. A good reason then existing for the second order, why should the language of it be strained beyond the evident [**96]  intention of the parties, which clearly was, to be covered against all risks, or why should the legal operation of the former order be restrained, by an act designed to enlarge it? To construe the last order as a representation, or warranty of neutrality, would be to convert the risk into a mere peace risk, when the assured was asking for, and paying the premium of a war risk. If none of the Baltimore policies contained a warranty against contraband, and there was no proof of a usage on the subject, it might be difficult to account for the second order. But as the proof is, the object is manifest, and perfectly consistent with the declared desire, to be covered against all risks. It is impossible to consider this last order as amounting to a misrepresentation. The assured fairly and truly told the underwriter all he knew, and in terms to awaken his apprehension, and put him on his guard; and the premium charged, shows, he was on his guard. The order in this case, cannot be considered as a representation of neutrality; for although contraband cannot be predicated of a neutral ship, here it does not expressly assert that there will be contraband on board, but that there possibly may [**97]  be, and hence, a belligerent character might fairly be inferred.

If the defendants did not mean to insure a war risk, it was their duty so to have stipulated, and reduced the premium accordingly. 2 Johns. Rep. 163.

The order here at farthest, can only be considered, as the representation of an expectation or belief, when the situation of the parties, with reference to the vessel, is taken into view. Allegre vs. The Maryland Ins. Co. 2 Gill and Johns. 136, 159. The implication of neutrality, from the words of the order, not being necessary and inevitable, a warranty cannot be inferred. Slight vs. Rhinelander, 1 Johns. Rep. 192. Philips, 82.

It is said that the knowledge of Meany, the captain, is to be imputed to the assured, the knowledge of the agent being the knowledge of the principal. This, though true perhaps, as a general rule, is not applicable to a case like the present, where from the relative situation of the parties to each other, such common intelligence was impossible. If the rule was universal, then the principal never could insure a lost vessel, if such loss was known to the master. Genl. Int. Ins. Co. vs. Ruggles, 12 Wheat. 408. Again, when the agent is [**98]  in one country, and the principal in another, without knowledge in fact, and so tells the underwriter, can it be said, that he shall be so affected by the agent's knowledge, as to forfeit his policy? When he says to the underwriter that he has no knowledge, he puts him on his guard, and the premium is regulated accordingly.

If, however, these parties are to be affected with the knowledge of Meany, the policy being against all risks, and for whom it may concern, is nevertheless good. Buck and Hedrick vs. Chesapeake Ins. Co. 1 Peters, 161.

The third and fourth prayers assume, that if the ship was neutral at the time the policy was effected, she must remain neutral throughout the voyage. But this is not so. If it was, then, if by a subsequent declaration of war, a vessel, neutral at the time of the insurance, should become a belligerent, the policy would be gone.

It is necessary that a ship should be documented according to her national character; and the rule on this subject has nothing to do with neutrality. Horneyer vs. Lushington, 15 East. 46. Oswell vs. Vigne, Ib. 70. Bell vs. Broomfield, Ib. 364.

But there is no evidence to show the belligerent character of the [**99]  ship, or upon which a prayer, with such an assumption, could be founded. The evidence only shows her to have been a neutral, with contraband on board. Ludlow vs. Columbia Ins. Co. 1 Johns. Cas. 337, 343. Ludlow vs. Brown and Eddy, 1 Johns. Rep. 1. De Wolf vs. New York Fire Ins. Co. 20 Ib. 214.

The fifth and sixth prayers assert, that the evidence of blockade, is contained in the sentence of condemnation, and the court was consequently called on to say, whether there was any such evidence in the sentence. It was a question of law to be decided by the court. Now, the sentence does not say that the captain had knowledge of the blockade, if in fact a blockade existed, nor does it say that he intended to violate it; and the mere attempt to enter a blockaded port, of which the party attempting has no knowledge, does not avoid the policy. Fitzsimmons vs. The Newport Ins. Co. 4 Cranch. 185. Ib. 198. Yeaton vs. Fry, 5 Cranch. 435.

Upon the plaintiff's exceptions, they contended,

That in this country, after condemnation, the owner never can regain the property condemned, as of his former estate, though in England, the law is different by statute. 2 Marsh. Ins. 570, 573. If the [**100]  former owner, after condemnation, comes into possession of the property, he does so by a new title. Act of Congress, Dec. 31, 1792, sec. 13, and June 27th, 1797, sec. 1. Williams vs. Armoyd, 7 Cranch. 423. Ib. 432. Hudson vs. Guestier, 6 Ib. 285. Jumel and Desobry vs. Mar. Ins. Co. 7 Johns. Rep. 422, 423, 426. McIver vs. Henderson, 4 Maul. & Selw. 576. Hallett vs. Payton, 1 Caine's Cas. 42. 2 Shower, 242. 2 Marsh. 501. Havelock vs. Rockwood, 8 Dur. and East. 270. And when the loss is total, there is no necessity for an abandonment, because then there is nothing which the abandonment could vest in the underwriters. 2 Marsh. 559.

The condemnation of the vessel in this case is equivalent to a total loss, and consequently the abandonment by the assured, conveyed no title to the underwriter. There was in fact nothing to abandon; nothing upon which it could operate. How then, can it be said, that the conduct of the assured afterwards, is a waiver of the abandonment? If the abandonment conferred no title upon the insurer, there was nothing to waive; and nothing with which the subsequent conduct of the assured can be said to have been inconsistent. 3 Mason, 86. 5 Johns. Rep. 324.

Even [**101]  if Meany had purchased as the agent of Thompson, the plaintiff's right to recover for a total loss would be unquestionable; because, he purchased from those, to whom the title had passed by the condemnation and sale of the vessel, and a title thus acquired would not have been incompatible with the rights of the insurers. Such, however, was not the case, as after the condemnation, Meany ceased to be the agent of the assured. 2 Wheat. 412. 414.

They referred to the correspondence between the parties, to show, that they did not suppose the plaintiffs had forfeited their right to recover for a total loss, by their adoption of the purchase by Meany. The refusal by the underwriters to pay, was placed upon other and distinct grounds. If they had a right to the vessel, they waived it by their omission to assert it in a reasonable time, and after full notice.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*220]  DORSEY, J., delivered the opinion of the court.
The first exception on the part of the Insurance Company, relative to the insufficiency of the preliminary proof having been abandoned, we are called to the consideration of the question [**102]  raised on their second bill of exceptions; viz. Is the copy of the record of the prize court of Porto Rico competent evidence, "for the purpose of showing that the original papers, of which copies and translations, purporting to be inserted in said record, were on board the said ship Budget, at the time of her capture, and were acknowledged to have been so on board by the said Meany, the captain of said ship, in his examination upon oath, before the said Prize Court?" With the decision made by the county court on this question we fully concur.
The sentence of condemnation of the foreign prize court is evidence of the facts, which it purports to decide, in an action on a policy of insurance on the thing condemned; and was conclusive evidence thereof, until the act of assembly of 1813, ch. 164, reduced it to the character of mere prima facie proof.
But the proof upon which such sentence may have been predicated, is not, per se, admissible in such collateral action.
The utmost efficacy that could be given to it, would be, to permit it to have the same effect, as if taken in a former cause between the present litigant parties. When viewed in that light, it is [**103]  clearly inadmissible, there being nothing in the record to show the impracticability of procuring in the usual way, the testimony of captain Meany, or the original 

 [*221]  papers referred to, or the testimony of the witnesses, who deposed that such papers were on board the Budget. The competency of the evidence offered, through John D. Daniels, forms the subject of our examination in the third bill of exceptions. And its offer is predicated upon the assumption, that a breach of blockade, was one of the grounds of condemnation, alleged in the sentence. The objection urged to the testimony is, that Thompson & Bathurst having given the sentence in evidence to the jury, could not subsequently be permitted to contradict, by the examination of witnesses, any of the facts which it professes to establish. There would be a semblance of reason and plausibility in this objection, if Thompson & Bathurst had offered the sentence as evidence of the truth of the allegations on which it professes to be founded. But the reverse is the fact; it was offered for no such purpose. On the contrary, the offer under the circumstances in which it was made, distinctly announced to the [**104]  court, and the Insurance Company, that those allegations, as far as they presented any barrier to the right of the plaintiffs below to recover, were denied, and would be disproved. The only object in producing the sentence, other than that of sustaining the abandonment, was to prove, that by the act of a foreign Prize Court, the insured had been deprived of all property in their ship. There is therefore, no inconsistency, no violation of the policy, nor any principle of law, in the sentence, and testimony of Danels, being offered as evidence by the same party. The sentence was the cause assigned for the abandonment, and must be proved; or the abandonment would be a nullity, and give no right of recovery as for a total loss. But say the counsel for the Insurance Company, there was no necessity for producing in evidence the sentence of condemnation, as proof of capture was sufficient. Does the law warrant this assertion? The plaintiffs abandoned, not because of the capture, but of the condemnation. Admitting they were notified of the capture at the time of its occurrence, of which there is no evidence, they 

 [*222]  may have hoped, that the ship would have been released; and [**105]  were therefore unwilling to relinquish to the insurer, the profits anticipated from the enterprize. Were they bound to have done so? Assuredly not. They waited the event, and abandoned on the ground of condemnation. If in a reasonable time after notice of capture, they failed to abandon, they lost the privilege of doing so, and could not have recovered for a total loss, on any abandonment for that cause subsequently made.
But the unanswerable objection to the argument is this; that no abandonment was made on the ground of capture, and consequently, the proof thereof would not entitle the insured to recover for a total loss. The principle is not now to be controverted, that in recovering for a total loss, founded on an abandonment, you must prove as the basis of your action, the cause assigned in the notice. Failing to do this, you cannot sustain your pretensions by proving another cause, which if made the subject of abandonment, would have warranted a recovery. The production of the sentence of condemnation, is therefore an indispensable link in the chain of testimony, requisite to the prosecution of a suit for a total loss, grounded on such an abandonment as that presented by the [**106]  record before us. If the objection to the testimony be a sound one, Thompson & Bathurst were on the horns of a dilemma. To entitle them to recover they must produce the sentence, and the production of the sentence rendered a recovery impossible. To sanction the objection insisted on, would be judicially to repeal the act of 1813, and to give to the sentences of foreign Prize Courts, that conclusiveness of which by the act of 1813, they had been divested. That act declaring, "that no sentence, judgment, or decree, final, or interlocutory, of any judge, court, board, council, or tribunal, having or exercising municipal admiralty, or prize jurisdiction, without the limits of the United States, or its territories, shall be conclusive evidence in any case or controversy in the courts of this 

 [*223]  State, of any fact, matter or thing contained, stated or expressed, except of the acts and doings of such foreign judge, court, board, council, or tribunal."
In the aspect in which this question was presented to the county court, their disposition of it is in accordance with the views of this court. But we deny the assumption upon which the objection was founded; viz: that the sentence [**107]  disclosed a condemnation for the breach of blockade. The sentence states no such fact. It alleges that La Guira, the port of destination of the Budget, was on the 23d of December, the day of the condemnation, a blockaded port; but not that it was so at the time of the capture, or the attempt to enter it. The testimony of Daniels was on that account wholly irrelevant to any matter at issue in the cause; and the county court, on that ground erred, in over-ruling the objection to its going to the jury. But this error, being in its nature wholly immaterial, and having no tendency to influence the minds of the jury, in forming their verdict upon the matters really in issue before them, forms no ground for the reversal of the judgment rendered on the verdict.
The first branch of the first prayer, in the fourth bill of exceptions, is, "that the terms of the order for insurance and the policy, in this case amount to a warranty, that the ship Budget was a neutral ship, bound upon a mercantile voyage, with permission to carry some articles contraband of war, but in every respect to be employed and navigated as a neutral ship." To sustain this idea of warranty, the following [**108]  endorsement on the order of insurance is relied on: viz: "although our advices give us no reason to believe there will be any articles contraband of war on board the ship Budget, still, as we wish to be covered against all possible risk, we request your reconsideration of the written application including articles contraband of war." This, say the counsel for the insurers, is equivalent to an express asseveration of neutrality, as articles contraband of war have neither meaning nor existence, but in reference to a neutral ship. Suppose this indissoluble connection, between articles 

 [*224]  contraband and a neutral ship be conceded; does the inference of warranty of neutrality in this case, necessarily follow? Can it be denied, that the original order covered belligerent as well as neutral risks? Was the endorsement on the order, intended to reduce the premium, by diminishing the risks insured against, to those of a neutral character only? Was it so understood by the underwriters? Their continuing to demand the same premium is unanswerable proof to the contrary. Do the terms of the endorsement intimate such an intention? So far from it, they reiterate the contrary by renewing [**109]  the same offer, and declaring their "wish to be covered against all possible risk." Do they in express terms, or by necessary inference assert, that there will be articles contraband of war on board? The reverse is the truth; they state that their advices give them no reason to believe that such will be the fact; but should such a contingency happen, they seek by insurance an indemnity against it. In other words, the order in effect declares the Budget may be belligerent property; if so, we require protection against all perils, incident to her, in that character. Or she may be in point of fact neutral, in that event, we ask an indemnity against every casualty, not explicitly excepted, which may befall her as such. It neither asserts her to be the one, nor the other, but provides an exemption from loss, let her condition in that respect be what it may.
That the original order, with the terms "against all risks," and "for account of all whom it may concern," covered both neutral and belligerent risks, has been admitted, and could not be denied. Had it then been the design of the second offer, to reduce the liabilities of the underwriters to neutral risks only, and obtain a consequent [**110]  reduction of the premium of insurance, it would not have omitted an express assertion or warranty of neutrality. In the rejection of this part of the said first prayer, we therefore concur with the county court.
By the remaining part of this first prayer, in the third bill of exceptions, the instruction required of the court, 

 [*225]  was, that "if the jury find from all the evidence, and admissions in the cause, that the ship Budget, on the voyage insured, was entirely laden with munitions of war, and that the same were destined for the service of the Colombian government at La Guira, partly to arm a vessel of war called the New Orleans belonging to the said government, and in part to establish a depot of arms at La Guira for the service of the said government; or that if said ship was to be offered for sale to the Colombian government whenever she might be wanted; or that the said Meany, captain of the Budget, was to be employed in the naval service of said government; or that a breach of blockade was committed by the Budget, as set forth in the sentence of condemnation of the Prize Court of Porto Rico; that then the policy is violated,  [**111]  and the plaintiff is not entitled to recover." In Buck & Hedrick vs. The Chesapeake Ins. Co. 1 Peters 151, the Supreme Court of the United States have declared, that "courts of justice are not bound to modify or fashion the instructions moved for by counsel, so as to bring them within the rules of law." If it were otherwise, instead of deciding the question submitted as presented by the counsel, they would in fact themselves become counsel, by raising the question, which as a court they must subsequently determine, and by analogy in every case it would be error, to reject a prayer asking more than the principles of law would warrant, unless at the same time the court gave an instruction, as favorable to the interest of the party praying, as if they were responding to a prayer aptly formed to elicit such instruction. The law, for wise reasons, imposes upon the court no such double and inconsistent duties of counsel and judge. They may, if they see fit, content themselves with a simple refusal of any prayer not sanctioned by the rules of law. The court below were therefore justified in an unqualified rejection of the said remaining part of the first prayer, because [**112]  they were required to give it, if the jury were satisfied of the existence of any one 

 [*226]  of four enumerated alternatives; one of which, (in relation to a breach of blockade,) was not a question which the court could have submitted to the finding of the jury, for the reasons stated in our opinion on the second bill of exceptions. But according to our view of the subject, the court would have been right in refusing the instruction prayed, though a separate prayer had been framed on each alternative.
In the case of Buck & Hedrick vs. The Chesapeake Ins. Co. before referred to, the Supreme Court say, "a knowledge of the state of the world, of the allegiance of particular countries, of the risks and embarrassments affecting their trade, of the course and incidents of the trade on which they insure, and the established import of the terms used in their contract, must necessarily be imputed to the underwriters." "No underwriter can be ignorant of the practice of neutrals to cover belligerent property under neutral names, or of the precautions ordinarily resorted to, that the cover may escape detection." Neither can the Maryland Insurance Company in this case, be deemed [**113]  uninformed of the practice of chartering neutral vessels at London, and elsewhere, by the agents of the Spanish South American governments, for the transportation of military stores, and troops; nor of such vessels being sold to those agents, deliverable in South America, for the purpose of being there used as national cruisers. These were facts of universal notoriety in the commercial world, at the time of the insurance on the Budget; are a part of the public history of that epoch, against the light of which this court cannot shut their eyes, and of which the law imputes knowledge to the appellants. Nay, it is more than probable, if not apparent, that these were the belligerent perils, mainly contemplated by the parties in their compact of insurance; and against which the underwriters especially designed to indemnify.
It is admitted on both sides, that the Budget, until her arrival at London, was well known as an American ship; 

 [*227]  and owned, commanded, and navigated as such. The letters of Meany, the captain, to his owners, communicated to the underwriters, and on which the policy was effected, informs them of what? That he had sold the ship? [**114]  No. That he had "chartered" her to go "to one of the following ports in the Colombian government--La Guira, Santa Martha or Carthagena." And upon these facts, with the aforementioned knowledge of the usage of neutrals in that trade, the underwriters were called on to insure the ship, against all possible perils that could betide her, either in a neutral or belligerent character. The asking of such an insurance, is of itself demonstration, that protection against dangers ordinarily incident to neutrality, was not all that was desired. To suppose that for such a limited liability, they offered (as they did,) more than double the premium necessary to the attainment of such an object, would be to impute to them a species of senseless prodigality, never before deemed applicable to an American merchant. The idea of the enhanced premium being paid on account of a bona fide regular belligerent ownership, is repudiated by the letter of Meany, on which the insurance company acted, when the policy was underwritten. That announced the chartering, not the sale of the Budget. What kind of belligerent risks were they then, for which, they designed to become responsible? The [**115]  strong probability, if not the natural presumption is, that they assumed the liability for those very contingencies, for which they are now called upon to answer; and which were contemplated by both insurer and insured, from their knowledge of the character of the trade by neutrals from London to Colombia. No other rational motive could have prompted Thompson & Bathurst to have sought such an insurance; and the facts in the cause warrant the assumption, that the underwriters intentionally assumed the responsibility to the full extent into which they were invited to enter. Being uncertain, whether it could be called a neutral or a belligerent risk; where the ship, though in fact neutral, was in contemplation 

 [*228]  of law regarded as belligerent; Thompson and Bathurst required not only a cover, to neutral and belligerent ownership, but also against "all risks," or "all possible risk." Thus manifestly seeking to obtain security against other losses, than those which usually attend neutral and belligerent ownership. And such must have been the understanding of the insurance company, from the knowledge with which they are affected. In this view of the subject, we are [**116]  more than sustained, by the case of Goix vs. Knox, 1 Johns. Cas. 337; where it is said, "the insurance is against all risks." This expression is vague and indefinite; but if we allow it any force, it must be considered as creating a special insurance, and extending to other risks than are usually contemplated. We are inclined to give it a liberal construction, and apply it to all losses, except such as arise from the fraud of the insured. "The terms used are sufficiently broad to comprehend every other loss." This doctrine was affirmed in Skidmore vs. Desdoity, 2 Johns. Cas. 77.
We have so far, examined the effect of the order for insurance, in reference to the question of warranty of neutrality; and in doing so, have regarded it as incorporated in the policy. By the second prayer in the third bill of exceptions, the county court were required to give the same instruction to the jury, which was applied for in the first, except that the order for insurance in the first prayer was assumed to operate as a warranty, in the second as a representation. If when regarded as a warranty, the order for insurance, as we have endeavored to show, can afford no [**117]  relief to the appellants, there is no pretext for an attempt to invoke it to their aid, when viewed in the light of a representation.
We approve of the county court's refusal, to grant the second, third and fourth prayers, for the same reasons which induced us to sanction their rejection of the first; and we sustain them in their denial of the fifth and sixth prayers upon the grounds, stated by us in the examination 

 [*229]  of the second bill of exceptions. We also concur in opinion with the county court, in the rejection of the seventh, eighth and ninth prayers; believing that the assured were under no obligation to communicate existence of those facts, the concealment, or non-disclosure of which, is relied on as the ground for vacating the policy. In our remarks on the first prayer, in the third bill of exceptions, we have so construed the contract of insurance, as to fix upon the underwriters a liability for losses arising from the transportation of hostile stores, troops, &c. the facts alleged as unduly concealed. The obligation to disclose is limited to such facts, as would vary the risk, or nature of the contract. No communication need be made, of what is necessarily implied [**118]  by the contract. Where the necessity of disclosure, when the insurers agreed to run the hazard of the very peril concealed? If the underwriters have assumed the risk, to which the ship may be subjected in transporting a cargo of hostile stores, can it be requisite, that they should be informed, that such a cargo is to be laden on board the ship? On an assurance for account of whom it may concern, is the assured bound to inform the assurer, that there exists a belligerent owner, or twenty of them, if there be so many? Assuredly not.
If the insurers designed to assume a mere neutral risk, (of which we cannot indulge a momentary belief,) they were not led into this error by the conduct of the insured. Every thing, short of express information to the contrary, was disclosed to them. They were told, that insurance was required "for all whom it may concern," against "all risks," or "all possible risks;" they were aware of the trade carried on by neutrals from London to Colombia. If under such circumstances, they neither charged an adequate premium, nor sought the further information requisite to lead their judgment to a just estimate of their responsibility, they must bear the consequences [**119]  of their own misprision.
Having disclosed our views upon the exceptions taken, in behalf of the underwriters, we are now brought to the examination 

 [*230]  of the bills of exceptions on the part of the assured, which present the question, whether the total loss claimed, was converted into a partial loss, by Meany's purchase of the Budget for account of the owners, and their subsequent ratification thereof, as stated in the bills of exceptions. To sustain the affirmative of this proposition, in addition to some American authorities on the subject, that part of Ld. Mansfield's opinion, in Goss vs. Withers, 2 Burr 694, has been much relied on, which declares, that "the insurer runs the risk of the insured, and undertakes to bear the loss actually sustained, and can be liable to no more. So that if after condemnation, the owner recover the ship in her complete condition, but has paid salvage, or been at any expense in getting her back, the insurer must bear the loss so actually sustained." This may be sound doctrine in England, where it is held, that the right to recover for a total loss, is not made absolute by the state of facts, on which the [**120]  abandonment is founded, continuing to exist at the date of the abandonment, but is dependent on subsequent events. In this country, a different rule prevails. The right to recover of the assurer, for a total loss is complete, if the loss which is its basis, continue at the time of the abandonment, and of this consummate right or privilege, the assured cannot, without default, be deprived, but by their consent expressed or implied. Like other privileges, it may be waived by the insured, either in express terms, or by their acts inconsistent with its existence.
If after capture and abandonment, but before condemnation, a ship be ransomed by the captain, or retaken by the crew, or be recovered and delivered to the owners, who claim, and use her as their own, they possess her under no new title or right of property; their acts are the assertion of their original ownership, and therefore inconsistent with the abandonment, which if sustained, casts the right of property on the insurers. Both cannot therefore stand together; the necessary inference is, that the insured, by the resumption of their ownership, surrendered their rights 

 [*231]  under the abandonment. But where a condemnation [**121]  has taken place, the assured, apart from all statutory regulation on the subject, is divested of all property in the ship, and in it, if purchased by themselves, or their agents, they acquire a new and independent title to which their subsequent acts of ownership are imputable, and not to their original proprietary rights. An intention to waive the abandonment is not the natural inference from their conduct. There is no inconsistency in their claiming for a total loss under the abandonment, and asserting the right of property under the newly acquired title. As against all the world, save the underwriters, the assured as purchasers, have an incontrovertible title. And it is conclusive even against them, if they consented to its acquisition, or have waived the right to impeach it. We are aware, that this question has been apparently otherwise decided in some of the United States, and especially in New York; where in the honest zeal for the protection of insurers, it is respectfully suggested, they have stretched their doctrines upon this subject to an unjust invasion of the rights of the insured, and gone beyond what the policy, or analogies of the law would sanction. The principle [**122]  contended for in the argument, as fairly deducible from the New York cases is, that the acceptance by the insured for his own benefit, of a purchase of the thing insured, made by the captain for account of his owner, is per se, a waiver of the abandonment; and converts the otherwise total, into a partial loss. To this universal and unqualified proposition, we cannot assent. Whilst we admit, that the law has wisely erected around insurers, an impenetrable barrier to fraud and injustice on the part of the insured, we insist, that in doing so, it has gone no further than the necessity of the occasion demanded, and, that it has not been unmindful of providing a like protection for the insured, against practices of a similar character emanating from the insurers. That whilst uberrima fides is exacted of the insured, a like course of conduct must be practiced by insurers. That to neither 

 [*232]  party, is it permitted to do acts, the natural tendency of which is injustice, and imposition on the other. We freely concede, that neither the insured in person, or through the instrumentality of others, either before, or after the condemnation of the thing insured, possesses, where [**123]  an abandonment has been made, an unqualified right to become its purchaser, for their own benefit. Such purchases, after condemnation, where a total loss is claimed, are ever subject to this qualification; that the insurers have the right or privilege, if they see fit, to exercise it within a reasonable time after a knowledge of the purchase, to elect to become themselves the purchasers; and if the insured refuse to surrender the bargain, the total is converted into a partial loss; or in other words, the insurers, by their election, having made the thing insured their own, have a right to deduct from the plaintiff's claim, the amount of the insurance, first subtracting therefrom, the quantum of loss actually sustained by the insured, by reason of the perils insured against. By an abandonment, the rights of the underwriters relate back to the date of the disaster, not of the abandonment. All intermediate acts of the captain, and agents of the insured, inure to the benefit of the insurer. Any purchase therefore made by such captain or agents, no matter for whose account, if in due season adopted by the underwriters, becomes their own. This view of the subject, so consonant to reason,  [**124]  justice, and policy, is not without support from the decisions from New York, which have been relied on by the Insurance Company. In Robinson & Hartshorne vs. United Ins. Co. 1 Johns. 592, Woodworth, of the Court of Errors of New York, says, "I subscribe to the correctness of the rule, that the insurers ought to decide immediately after notice, whether they will avail themselves of the purchase made by the agent." In Jumel and Desobry vs. Marine Ins. Co. 7 Johns. 426, Chief Justice Kent, in delivering the opinion of the court, speaking of the repurchase of a vessel by the captain, for the benefit of the owner, says, the insurers 

 [*233]  "have nothing to do with the purchase of the vessel, unless at their election, is a general principle of insurance, &c." and in Ogden vs. Fire Ins. Co. 10 Johns. 180, the court, in relation to a purchase made by the assured after abandonment, state, that "if he persevere in the claim for a total loss, he must surrender to the insurer the benefit of the purchase; and this rule is founded in sound policy, to prevent fraudulent speculations upon a loss, at the expense of the insurer. [**125]  "
The principle of law upon this subject as recognized by us, gives protection to both parties, and is founded on equal and reciprocal justice, as far as the nature of the case will admit of. Adopt the rule as contended for by the Insurance Company, and you deal unjustly by Thompson & Bathurst, by rendering them without their consent purchasers of the ship; not at the price they stipulated to pay, but perhaps at double that amount; at her valuation at the port of departure, not her value at the port of purchase. You also inflict a serious injury upon underwriters, by depriving them of all chance of being restored to the property condemned, or its value, at a reasonable salvage, through the instrumentality of the insured, or their agents, who would never become purchasers where no ray of hope was left them, of being permitted to enjoy any benefit by the purchase.
It is alleged, that unless the assured committed a fraud upon the underwriters, by an excessive valuation, they have no just ground to complain of the exercise of the right now claimed by the Insurance Company. But is the allegation well founded? Is it just, that the assured should receive their ship at the port of condemnation, [**126]  at her full value, where she may be so surrounded by perils and difficulties, as not to be worth one-half of what she was, at the port of departure; or would have been, at the port of destination, to which her safe arrival had been guarantied? If in the navigation of the Budget from Porto Rico to Baltimore, or in attempting to complete the voyage insured, 

 [*234]  after the purchase, she had been lost by any of the perils insured against, could Thompson & Bathurst have recovered, not only the entire valuation in the policy, but in addition thereto, the purchase money paid for the ship? Or indeed any thing but the loss, which had accrued to the time of the purchase? Unquestionably not. Is there then no ground for complaint, no hardship in the case, that Thompson & Bathurst after paying a full premium of indemnity for an entire voyage, should not be covered by the policy, for more than one-half of it? That by legal presumption, they are to be held, as restored to their property, which by necessary implication revives the policy for the voyage; and yet, that they are entitled to no further protection under it? The law raises presumptions to subserve the ends of justice;  [**127]  never to work such absurdity and injustice as would follow the presumption now insisted on.
That the election of the assurer to adopt the purchase, should be made without delay, after the knowledge of the sale, is so forcibly enjoined by the plainest dictates of reason and justice, that it can hardly be necessary to invoke, either reason, argument, or illustration, to its support. He surely ought not to be permitted to lie by, and speculate on contingencies, at the risk and cost of the assured. If the vessel arrive in safety from the port of sale, having evaded the perils by which she was beset, and turns out upon minute inspection to be of greater value than the price paid for her, or if she has earned freight, or been profitably employed, or there has been an improvement in the price of ships, then will the assurer claim the advantages of the purchase. But on the other hand, if the vessel should be unprofitably employed, lost, damaged, or from any other cause, become of less value than when sold, then would all the burden be cast on the shoulders of the insured. With the re-purchase it would be alleged they had no concern. This would be playing a safe game for the underwriters, [**128]  but a ruinous one to the assured, and wholly inconsistent with that frankness and fair dealing which pervades every branch of insurance law. This 

 [*235]  dictum of Ld. Mansfield in Goss and Withers, to the extent now attempted to enforce it, has not been confirmed by any subsequent English adjudication: on the contrary, it is in direct opposition to the law, as admitted by Ld. Kenyon, and the counsel on both sides, in the case of McMasters vs. Shoolbred, 1 Esp. 237.
But concede for the moment that we are in error in the views we have stated, and that the general rule as established in New York be correct; viz: that the insurers have a right to regard a purchase of the subject matter of insurance, by the insured or their agents, after its condemnation, as a waiver of the abandonment, and a conversion of the total, into a partial loss. If the insurers agree that such purchase shall not be a waiver of the abandonment, and the assured unequivocally evince his intention not to waive it; or if by the acts of both parties, it plainly appears, that it was not the intention of either, that it should be so regarded; would the abandonment then be [**129]  waived? Certainly not. The right of the underwriter so to regard it, is of that class of rights, which may be waived, or insisted on, at the election of their possessor. Did they elect to waive their right in this case? In our opinion the proof sufficiently establishes that fact. On the 12th of March, 1823, Thompson & Bathurst address a note to the underwriters, stating the receipt of advice from captain Meany, that he had purchased the Budget after her being condemned, and drawn on them for the amount; and desiring to know, if they might calculate on receiving from the appellants the amount insured in their office, at the time stipulated in the policy, ninety days from proof of loss. The nature of this communication cannot have been misinterpreted. It was an explicit avowal of a claim for the whole "amount insured," for a total loss; and it was so understood by the underwriters, who in their answer of the same date reply, "that not having seen captain Meany's protest, we cannot satisfactorily make you a reply, because on it mainly depends the ground for payment, which (when presented) 

 [*236]  if found in order, the loss is payable ninety days after proof and adjustment [**130]  thereof." They do not, in this letter, intimate any claim to the ship which had been purchased, or that instead of paying as demanded of them, the whole "amount insured," by reason of the purchase for the owners, their liability was limited to the price at which the ship was sold. The notice of abandonment had been given on the 6th of February, 1823, accompanied by a certified copy of the condemnation.
The object to be attained by the production of the protest, was to ascertain whether they were responsible at all; not what was the measure of their responsibility. It could not possibly give any information as to the purchase, having been made long anterior. On the 7th of May, (the ninety days mentioned in the policy having expired) payment was again demanded of the Insurance Company, which they declined for want of documents to prove the loss: alleging, that "as the vessel is now here, no doubt they can be produced." On the 21st of May, the insured, after having presented all the documents they had received, address the underwriters a third time, urging the settlement of the loss, and offering to procure in a reasonable time, if possible, any other documents which might be deemed [**131]  necessary to elucidate the condemnation of the ship. On the 24th of May the Insurance Company reply to this communication, offering to advance to the insured $ 4498 75, upon their and Robert Oliver's joint note at six months, bearing interest; and requiring them at the expiration of that time, or sooner, to furnish the following documents relative to the ship Budget, viz: the proceedings of the Court at Porto Rico; the log book, or authenticated copy thereof; the charter party, or an authenticated copy: upon receipt of which, and their proving satisfactory, an adjustment of the loss was to take place. This proposition was manifestly made, (in accordance with usage) that the insured might sustain no injury by delay, but be put in possession of the identical amount he would be entitled to receive, 

 [*237]  upon producing the documents required, or as they alleged, customary proof of loss; upon the production of which, if satisfactory, the note demanded, was to be cancelled or given up. Thompson & Bathurst, in their letter to the underwriters of the 26th of May, say, "we consider the proofs already handed you, as fully establishing the capture and condemnation of the [**132]  ship Budget; still, we do not hesitate in trying to procure the documents you have pointed out, and have therefore written for them by a vessel that sailed yesterday for Porto Rico. We should esteem it an accommodation, your now paying us the loss, in the same manner the Phoenix Insurance Company have done, viz: by giving our note for the same at six months date, with interest, being as a security for our procuring such further documents as may be requisite; but we prefer forfeiting that temporary advantage, to giving a note in the manner you prescribe." On the 28th of May, the Insurance Company, in their answer to the last preceding letter, state, "that the proofs produced in the case of the ship Budget are not satisfactory, or such as are usually produced by the assured, in similar cases, to entitle the assured to claim a total loss. On that score we beg leave to refer you to our letter of the 24th, and what we verbally communicated some time ago. With respect to an accommodation, we have no objection to grant one to the extent treated of in our last, on your note with satisfactory security; which is in conformity with the custom of this company, and from which [**133]  we cannot deviate; at the same time, we wish you to understand, that it is neither meant nor intended, as paying a loss, which in our opinion, is not fully established. Should you not approve of our terms, you will of course have to wait until the documents sent for are received, and when received, if satisfactory to this company, no unnecessary delay will be made in paying the loss." All the documents furnished, and those demanded, were for the purpose of satisfying the underwriters, whether they were liable for any loss. They could throw no light upon the question, whether their liability 

 [*238]  was for a total, or partial loss. But for the purchase, made by captain Meany for the owners, that question could never have arisen. The loss could not have been otherwise than total. With respect to this purchase, the documents sought for were known to be silent. Of the purchase, information had been given by the assured in their note of the 12th of March, 1823, and no further intelligence on that subject had been required. On that head the underwriters were satisfied. Their only dissatisfaction, their only objection to pay, as for a total loss, was, that the customary proof of [**134]  loss, showing any liability on their part, had not been furnished. And to indemnify the assured for the delay in the payment of their claim, they proposed to them the grant of a loan, for the precise amount insured, after deducting the premium note, and $ 1 25, the cost of the policy, cautiously providing that this accommodation should not be regarded "as paying a loss," solely on the ground, that a liability on their part had not been fully established. If they had designed, in the event of their being held responsible for the loss, to take to themselves the benefit of captain Meany's purchase, they ought, within a reasonable time after it was made known to them, to have announced their determination to do so. Had this been done, Thompson & Bathurst might have repudiated the purchase made on their behalf, as they were under no legal obligation to sanction it. They had a right to conclude, nay, they could draw no other conclusion from their correspondence with the underwriters, than that they were to be paid as for a total loss, as soon as they could make it appear that they had a right to recover any thing. By such conduct, the underwriters are to be regarded as having waived [**135]  the privilege of taking the purchase of Meany to themselves, or of relying on it as a waiver of the abandonment. To permit them to do so at the time, and under the circumstances in which they claim to exercise this right, would be a fraud upon the assured; an act of injustice towards them which no judicial tribunal should countenance.

 [*239]  Concurring with the County Court, in their opinion on all the exceptions on the part of the defendants below, as far as concerns their appeal, we affirm the judgment; but dissenting from the opinions on the exceptions taken by the plaintiffs below, on their appeal the judgment is reversed, and judgment entered according to the agreement of the parties set forth in the record.
JUDGMENT ENTERED ACCORDINGLY AS FOR A TOTAL LOSS. 

21 of 43 DOCUMENTS 

ISAAC MCPHERSON'S adm'rs vs. ISRAEL, adm'r d. b. n.--c. t. a. of AGNEW.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 60; 1832 Md. LEXIS 8 

December, 1832, Decided 

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

The appellee, Fielder Israel, as administrator d. b. n. of Andrew Agnew, filed his petition in the Orphans Court for Baltimore county, on the 29th of September, 1828; alleging, that letters of administration on the estate of the said Andrew Agnew, had been granted to Isaac McPherson, (the appellants' intestate,) who had departed this life without fully settling the estate, having in his hands sundry bonds, notes, accounts, and evidences of debt, belonging to the estate of the said Andrew, and a balance in cash, and other property; and praying that the appellants, Esther McPherson and David Hoffman, administrators of Isaac McPherson, may be required to render an account of the estate of the said Andrew, up to the time of the death of their intestate--and that they should be decreed to deliver over to the petitioners all the bonds, notes, &c. belonging to that estate.

The defendants, (the appellants) with their answer, exhibited the copy of an account, which they have settled in the Orphans Court, after the death of their intestate, Isaac, and admitting the facts contained in the petition, asked that their intestate should [**2]  be allowed a commission according to the act of assembly, for his services as administrator of Agnew, upon the sum of $ 26,371 68 being the amount of the inventory of said Agnew's estate, and of claims, &c. collected by their said intestate in his life-time. Various accounts were exhibited with this answer, showing that the actual payments and disbursements of McPherson, as administrator of Agnew, amounted to $ 9,426 76.

The Orphans Court, after ordering the appellants to pay over to the appellee, the bonds, notes, and other property of Agnew, order and adjudge that the appellants be allowed a commission at the rate of ten per centum on the said sum of $ 9,426 76, and that they retain the same out of the money belonging to the estate of Agnew, which their intestate Isaac had in his hands at the time of his death. From this decree the appellants appealed to this court.  

DISPOSITION:
REVERSED AND REMANDED.  

HEADNOTES:

It is in general, the duty of the Orphans Court to determine the commissions of an executor or administrator, by allowing a percentage upon the inventory of the deceased's estate; and that includes, in an enlarged construction, all the assets accounted for.

One of the limitations to the exercise of the discretionary power of the Orphans Court, prescribed by the act of 1798, ch. 101, sub-ch. 10, sec. 2, is, that the court shall not allow a less rate of commission than 5 per cent. but this only applies to those cases, where there has been a full administration by the first executor or administrator.

Under the act of 1820, ch. 174, taken in connection with the act of 1798, in cases of partial administration, where there is a further administrator to be paid for services, the court may allow such compensation to the first administrator, as the services performed actually merit. They may give one per cent. or even less; whatever is allowed must nevertheless be a percentage on the whole assets. This is the only standard under the law, whereby to ascertain his commissions.  

COUNSEL:
Mayer, for the appellants, contended,

1. That the minimum rate is 5 per cent. 2. That the amount, or fund on which it is to be allowed, is the amount of the inventories and debts, (at least of debts collected or secured,) and of money, and other personal property. 3. That the act [**3]  of 1820, ch. 174, does not, (especially where, as here, an account has been rendered by the deceased administrator) repeal the provisions of this testamentary system of 1798, on the subject of commissions. He referred to the case of Wilson vs. Wilson, 3 Gill and Johns. 20.

Gwynn, for the appellee.

The act of 1798 regards the commission to be allowed an executor or administrator, who has fully settled the estate, and the commission is to be allowed only on the property and debts, which have been actually collected.

The act of 1820, ch. 174, does not limit the court in allowing a commission to an administrator who has not settled the estate, except as to the maximum. They may allow as little as they please, and this act applies to every case where the estate is not fully settled.  

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

OPINIONBY:
EARLE 

OPINION:

 [*62]  EARLE, J., delivered the opinion of the court.
The appeal in this case is from the Orphans Court of Baltimore county. The appellants are the administrators of Isaac McPherson, who administered on the estate of Andrew Agnew, deceased. He was in the administration about [**4]  three years when he passed his first account, and departed this life soon after. Letters of administration de bonis non, with the will annexed, were granted to Fielder Israel, who called the appellants before the court to pass a further account of Isaac McPherson's administration of Andrew Agnew's estate, and to deliver to him all the bonds, notes, accounts and evidences of debt, which the deceased administrator may have taken, received or had, as administrator, at the time of his death, and also to pay over to him all the 

 [*63]  money in the hands of such deceased administrator as such, at the time of his death. The appellants complied with the requisition in all respects, and asked the court to grant to them, in behalf of their intestate, to be taken into his estate, a commission of at least five per cent. on the amount of assets accounted for by him, comprising the specific property included in the inventory, the debts received by the administrator, &c.
Upon this question the court deliberated, and finally refused the petition of the appellants, and granted to them ten per cent. on the money paid away by the administrator, towards the debts of the deceased, [**5]  and the expenses and disbursements of the administration. They amounted to $ 9,426 76, and at the percentage allowed, yielded a commission of $ 942 67. This fell below the product of a commission of five per centum upon the whole estate, and the allowance caused the appeal in this case, the appellants contending that the court had not the power to grant to them in behalf of their intestate, a commission lower than the minimum rate of commission fixed by law.
We have given to this appeal its due attention, and there is not a doubt on our mind, that the Orphans Court were in the main right in the judgment they pronounced in this case. Whether Isaac McPherson merited a larger sum for the services he rendered, is not for us to decide. We have not, and cannot have the same view of the subject the Orphans Court had, and we could not say, if it was our province to determine, as accurately as that tribunal, what reward he was entitled to have. Our opinion however is, that they have not exceeded their authority, and that under the circumstances of this administration, they had the power to grant to his administrator a commission less in amount than the sum, the minimum rate of [**6]  commission of five per cent. on the whole estate would produce. This is one of the limitations to the exercise of the discretionary power of the court, prescribed by the act of 1798, ch. 101, sub-ch. 10, sec. 2; but it is manifest from a view of the whole law, the limitation 

 [*64]  was only intended to apply where the administration was full and complete.
This construction, however, of the act of 1798, need not be insisted on, since the act of 1820, ch. 174, sec. 6, puts it beyond a doubt. By this section, the minimum rate of allowance is purposely omitted to be mentioned, and the court have an unquestionable power, in case of a partial administration of a deceased person's estate, and where there is a further administrator to be paid for services, to allow such compensation as the services performed actually merit.
In declaring this opinion, we cannot agree with the Orphans Court in their reasoning upon this subject, nor in the manner they have made the allowance. They have allowed a ten per cent. commission on the money paid by the administrator towards the debts of the deceased, and the expenses of the administration. This was the mode of allowance [**7]  pursued by the law anterior to the act of 1798, but was thereby abrogated and repealed. The inventory of the deceased's estate, and in an enlarged construction of this, all the assets accounted for by the administrator, is the true standard by which to ascertain the commission.
Where there has been a full administration, as we have said before, the court cannot descend below five per cent. on the whole property, but where the duty of administering the whole estate has been but in part performed, to make just and suitable remuneration for what has been done, they may give, if the circumstances require it, one per cent. and even less if necessary. Whatever is allowed must nevertheless be a percentage on the whole assets, as this is the only standard known to the law, whereby to ascertain the commission. Supposing the Orphans Court assumed a mistaken standard, for the ascertainment of the commission, and might on consideration be disposed to change the amount granted by them, we reverse their decision, and direct the record to be returned to them.

DECREE REVERSED, AND THE PROCEEDINGS REMANDED TO THE ORPHANS COURT.  

22 of 43 DOCUMENTS 

JOICE and WIFE, et al. vs. ELIJAH TAYLOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 54; 1833 Md. LEXIS 35 

December, 1833, Decided 

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

The present bill was filed on the equity side of Baltimore county court, by the appellants, Joice and wife, and Stephen Severson and Sarah his wife, formerly Sarah Joice, on the 29th of September, 1830, and afterwards removed to the court of Chancery. The complainants alleged, that in the year 1827, Joice and wife conveyed a tract of land, which the wife had inherited from one Raven, to Sarah Joice, before her intermarriage with Severson, with the design that the said Sarah should hold the property so conveyed in trust, for the separate use and benefit of Mrs. Joice her mother, who was also entitled to a portion of the personal estate of the said Raven. That Taylor the appellee, was one of the executors of said Raven, at the sale of whose personal estate the said Joice and wife purchased a number of articles. That upon the representations of Taylor, that a mortgage of the property so conveyed in trust for Mrs. Joice to secure the payment of the articles purchased at Raven's sale, was necessary to enable him to settle his account with the Orphans court, she agreed that one might be executed by the trustee, Sarah, which was accordingly done on [**2]  the 31st of October, 1827; the said Taylor then assuring her, that as soon as he completed the settlement of Raven's estate, he would pay her, her proportion thereof, and surrender the mortgage. That Taylor has been guilty of abuses and frauds as the executor of Raven, and holds money in his hands belonging to said estate, more than sufficient to pay the mortgage debt, notwithstanding which, he has caused the mortgaged property to be advertised for sale, under a decree of foreclosure obtained without making Mrs. Joice, the cestui que trust, a party to the suit. The prayer of the bill was for an injunction to prevent the sale, that the decree of foreclosure might be annulled, the mortgage declared null and void, and for general relief.

The answer alleged that the deed from Joice and wife to Sarah was absolute upon its face, and the defendant denied all knowledge that it was designed to create a trust for the benefit of Mrs. Joice. That it purports to be for natural love and affection and of the sum of five dollars, and is in effect a deed of gift to the said Sarah, who is the daughter of the grantors, as appears by the recitals of the deed which is exhibited with the answer. That [**3]  Joice and wife having purchased various articles at the sale of Raven's estate, (upon which letters testamentary had been granted the defendant) amounting to $ 423 22, and Joice being subsequently desirous of borrowing a further sum of money from him, he the defendant consented to lend him, and did lend him the same, upon the condition that he should receive a mortgage of the property conveyed as aforesaid to Sarah, to secure the whole amount so due the defendant. That accordingly in October, 1827, Joice and this defendant came to a settlement of their accounts, when the balance due him from Joice, including his purchases at Raven's sale, and subsequent advances of money, was found to amount to $ 650, for which sum Sarah Joice gave her note, and at the same time made and delivered to this defendant the before mentioned mortgage, to secure the payment thereof. The answer admitted that Mrs. Joice was entitled to a portion of Raven's personal estate, but denied that the defendant agreed that her proportion thereof should be set off or discounted from the amount purchased as aforesaid by Joice and wife at the sale. That the defendant having in his settlements with the Orphans court charged [**4]  himself with the amount of these purchases, and having as aforesaid procured the mortgage for his security, did promise Joice and wife, that if upon the final settlement of Raven's estate any thing should be due her, it should be set off against the mortgage debt, and if sufficient to cover the whole claim, the mortgage should be surrendered. That the whole of Raven's personal estate however, has been exhausted in the payment of debts, and the mortgage remaining wholly unsatisfied, he filed a bill, and obtained a decree of foreclosure and order to sell, against the mortgagor alone, upon the ground that she only is interested.

A commission issued, and a great many depositions were taken and returned, which, as it would not be possible to condense them within reasonable limits, the reporters think it advisable altogether to omit.

Bland, Chancellor, at July term, 1832, dismissed the bill with costs, when the complainants brought the record by appeal to this court.  

DISPOSITION:
DECREE REVERSED WITH COSTS, INJUNCTION MADE PERPETUAL.  

HEADNOTES:

When a mortgage is obtained by the misrepresentation of the mortgagee, it is void; and it is immaterial as to its legal effect upon the instrument, whether the mortgagee at the time he made the misrepresentation knew it to be false. If he made a statement of facts, knowing it to be false, it would clearly be a legal fraud; but although he did not know that it was false, yet, if he undertook to state it to be true, without a knowledge of its truth or falsehood, and it operated as a deception to the other party to whom it was made, and thereby induced the mortgage, it would avoid it. The gist of the inquiry is, not whether the party making the statement knew it to be false, but whether the statement made as true, was believed to be true, and therefore, if false, deceived the party to whom it was made.

An allegation in a complainant's bill, though not denied, if material to the case, must be proved at the hearing.  

COUNSEL:
Learned and Johnson, for the appellants, cited 16 Ves. 115. 4 Bro. P. C. 198. 2. Sch. and Lef. 474. 2 Swan. 73. 1 Sch. and Lef. 209. 1 Bro. P. C. 308. 2 [**5]  Ch. Dig. 1341. 1 Stark. Ev. 121. 19 Ves. 433. 2 Stark. Ev. 757.

T. P. Scott, for the appellee, referred to 4 Gill and Johns. 427, 443. 6 Harr. and Johns. 28-9, 445. 3 Gill and John. 38. 4 Ib. 460.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*57]  MARTIN, J. delivered the opinion of the court.
The bill in this case was originally filed in Baltimore county court on the 29th of September, 1830. Injunction was granted by that court, and the answer of the respondent and several exhibits filed by him, and a motion made to dissolve the injunction nisi, when the cause on the suggestion and affidavit of Elisha Joice, one of the complainants, was removed to the court of Chancery. At December term, 1830, the injunction was dissolved by the Chancellor, and at July term, 1831, a commission was issued to take testimony.
The bill states among other things, that a mortgage had been executed by Sarah Joice, now Sarah Severson, to Elisha Taylor for certain lands therein mentioned, and that upon the application of the mortgagee, a decree had been obtained in Baltimore county court to foreclose [**6]  the mortgage and sell the land, to pay the sum it was intended to secure. That the mortgagor had no equitable right to make the mortgage. That the lands were held by her in trust for her mother, and that the mortgage was obtained from her by fraud, and the misrepresentations of the mortgagee, in whom great confidence was placed, and by whom they were greatly deceived and misled, &c.

 [*58]  If the allegation in this bill, that the mortgage was obtained by the misrepresentation of the respondent, is established by proof, it would render the deed void; and it is immaterial as to its legal effect upon the instrument, whether the respondent at the time he made the representation knew it to be false. If he made a statement of facts, knowing it to be false, it would clearly be a legal fraud; but although he did not know that it was false, yet if he undertook to state it to be true, without a knowledge of its truth or falsehood, and it operated as a deception to the other party to whom it was made, and thereby induced the mortgage, it would avoid it. The gist of the inquiry is, not whether the party making the statement knew it to be false, but whether the statement made as [**7]  true was believed to be true, and therefore, if false, deceived the party to whom it was made.
In the examination of this case the attention of the court is necessarily called to the answer of the respondent, and the caution adopted by him in answering, or rather avoiding to answer the allegation of his misrepresentations, is too obvious to be passed in silence. The allegation is in substance, that Elizabeth the mother was entitled to all the real estate, and one-third the personal estate of Isaac Raven deceased. That her husband, Elisha Joice, had purchased articles at the sale of Raven's estate, from Taylor the executor. That Taylor in order to obtain a mortgage on the lands of the wife, to secure the payment of the debt due from the husband, represented that the mortgage was only intended to enable him to settle up Raven's estate with the Orphans court, and that as soon as that settlement was made, he would pay over to Elizabeth Joice the portion due to her, by which the mortgage might be redeemed. The respondent answers fully all the minor allegations in the bill, and what does he say to the important charge of misrepresentation? He admits, "at [**8]  the time of the execution and delivery of the mortgage, he did promise and assure the said Joice and wife, and Sarah Severson, that if 

 [*59]  upon the final settlement of the personal estate of Isaac Raven deceased, there would be any thing due unto Elizabeth Joice, that then he would set off the amount that might be so due against the said promissory note, and give up the said mortgage in case the said note was paid." There he stops. He does not deny that he stated to them, the mortgage was necessary for him to settle with the Orphans court, and that upon that settlement, Elizabeth Joice's portion should be paid, with which she might redeem the mortgage; and yet that representation is the ground relied on by the complainants for relief. He therefore evades a direct answer to the allegation, and only states facts which may be true, although he may also have made the representations attributed to him. This allegation however, although not particularly denied by the respondent, must be proved by the complainants to sustain their cause.
The court has carefully examined the testimony contained in this record, and without the aid of Sarah Severson's evidence,  [**9]  (the objection to which was not considered, because there was sufficient evidence from other witnesses,) is compelled to the conclusion, that there has not been fair dealing on the part of Taylor in this transaction. The consideration of this mortgage, appears from the statement or account delivered by Taylor to Israel as directory to him in preparing the mortgage. By that account it appears the principal item of the consideration was the sum of $ 423 22 1/4, due from Elisha Joice to Taylor, for articles purchased at the vendue. That Taylor, at or about the time the mortgage was executed, represented to Mrs. Joice that she would be entitled to receive from the estate of Raven, a larger sum than the consideration mentioned in the mortgage, is clearly proved both by W. W. Waite and Francina A. Joice. Waite deposes to the further fact, that Taylor stated the mortgage was a mere matter of form, there being more money due from the estate of Raven than would pay it, but that it was necessary to have the mortgage to settle 

 [*60]  the estate with the Orphans court. Mrs. Joice had unlimited confidence in Taylor, and no doubt believed [**10]  the statement thus made by him, and under that belief, that the mortgage was a mere matter of form to enable Taylor to settle his account with the Orphans court, and would immediately be discharged by the money to be paid to her, she was induced to agree to its execution. It cannot be credited from the facts disclosed in this record, that Mrs. Joice would have consented that her land should be sold to pay the debt due from her husband to Taylor. Her husband was embarrassed, and she was desirous to protect this real property from his creditors, and to reserve it for her own separate use.
The court is of opinion that this mortgage was obtained by the false representation of Taylor, and is fraudulent and void.

DECREE REVERSED WITH COSTS, THE INJUNCTION MADE PERPETUAL, AND THE MORTGAGE DECLARED TO BE NULL AND VOID. 

23 of 43 DOCUMENTS 

STEIGER'S Adm'r vs. THOMAS HILLEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 121; 1833 Md. LEXIS 5 

June, 1833, Decided 

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

The present bill was filed by the appellant, Margaret Ann Steiger, Adm'r C. T. A. of Mary Steiger, against the appellee, (Thomas Hillen,) on the 21st of September, 1827. It alleged that Andrew Steiger, the former husband of Mary Steiger, was in his life-time seized and possessed of certain parcels of land, now within the limits of the city of Baltimore. That being so seized, the said lands were by the then sheriff of Baltimore county, sometime in the year 1789, sold and conveyed to Solomon Hillen, (under whom the defendant claims,) who in virtue thereof, entered upon them; and that he, and the defendant, have ever since held and enjoyed the same, and received to their own use and benefit all the rents and profits thereof. That long prior to the aforesaid sale and conveyance by the sheriff to Hillen, the testatrix of the complainant, and Steiger, were lawfully married, and that they lived, and continued to be man and wife until his death, which occurred in 1802. That said Mary survived him, and departed this life in the year 1823, and that during the whole period from the death of her said husband, until her own death, the said Hillen refused [**2]  to account to her, or to complainant, as her administratrix, for any portion of the rents and profits of said land, although the said Mary during her life-time, insisted to said Hillen, that she was entitled to dower therein, and claimed the same as her right. The bill then prays that defendant may be compelled to pay such portion of the rents and profits of said land, as the said Mary was entitled to, and for general relief.

The answer admits the seizin of Steiger, the husband, as charged in the bill; the sale by the sheriff to Solomon Hillen in 1789, and the possession of the said Solomon, and the defendant's possession after him, from that time to the present. The death of Steiger the husband and wife, as alleged in the bill, are also admitted. The answer denies expressly, that Mary Steiger, or any other person for her, in her life-time, ever made any demand on the respondent for dower in said lands, of which his possession has been undisturbed since the death of Solomon Hillen, which happened in the year 1801. The respondent then alleges, that he has been advised, that complainant cannot maintain any claim against him for dower in said lands, or for the arrears thereof.

There [**3]  was a general replication to the answer, and a commission to take testimony, but the proof returned under it, does not appear to vary the case, as made by the pleadings.

BLAND, Chancellor, (Sept. term, 1828.)

It appears that the late Andrew Steiger, more than fifty years ago, being then married to the late Mary Steiger, the testatrix of the plaintiff, was seized in fee simple of a certain parcel of land, which was afterwards included within the limits of the city of Baltimore, and of which the lots in question, are the same, or a part. That in the year 1789, these lots of land were taken under a fieri facias, issued on a judgment obtained against the late Andrew Steiger, and offered for sale, when Solomon Hillen, the father of the defendant, and under whom he claims, became the purchaser, and immediately obtained possession, which has continued in him, and those claiming under him, ever since without interruption. That the late Andrew Steiger died some time in year 1802, leaving his wife Mary then alive, who died in September, 1823; and that about four years afterwards, on the 21st of September, 1827, Margaret Ann Steiger, as the administratrix, with the will annexed of the [**4]  late Mary, filed this bill; in which she avers, that her testatrix had been entitled to dower in these lots of land, and therefore claims of this defendant, Thomas Hillen, an account of the rents and profits of that dower estate, to which the late Mary has been entitled from the death of her husband, until the time of her own death. The defendant admits the truth of the facts which constitute this case so far; but he positively denies that the late Mary, at any time, ever made any demand of her dower of him, or of those under whom he claims; and says enough, as to the uninterrupted length of his possession, to entitle him to rely upon, and have all the benefit which can arise to him from the lapse of time. Proofs have been taken, but there is nothing in them which materially varies the case, as shown by the bill and answer. It does not appear, that the late Mary ever sued for, or made any demand of her dower, nor is the fact of her not having done so, or the great delay accounted for in any manner whatever.

This is a claim of the profits of an estate for life, in lands, made after it is fallen into the inheritance by the death of the person who was entitled to it, and its enjoyment.  [**5]  The principal has perished, but the incident benefits of that principal which had been received by the holder during its existence are now claimed. I have met with no instance of such a claim.

A widow brought a writ of dower, and obtained judgment; after which she took out a writ of enquiry of damages, but died before it was executed. Her administrator brought a scire facias upon the judgment, for the purpose of reviving it, and recovering the damages. But it was held that the tenant was a deforcior, guilty of a wrong which died with the person. Salk. 252, 3. Mod. 281. 1 Show. 97. Carth. 133.

From the manner in which this matter is said to have been decided, there is however some room to doubt, whether it must be considered as having been finally settled even at law. 2 Brown, C. C. 632. All private criminal injuries or wrongs, as well as public crimes, are buried with the offender. And in all cases of wrong, where the offender acquires no gain from the property of the injured party, there also the rule, actio personalis moritur cum persona applies; and on the death of either party the right to reparation in damages for the wrong committed, is gone. But in a case [**6]  where it cannot be denied, but that the holder of the estate has been enriched by property which did not belong to him, it would seem to be a strange misapplication of the rule to suffer it to effect a confirmation, by means of the accident of the death of the owner, of a right to a wrong-doer in property which he had unlawfully acquired. Cowp. 374.

But, however this may be at law, there is no doubt that in equity, the compensation given to a widow for the detention of her dower, is not considered as mere vindictive damages, the right to recover which, dies with the person.

The statute which gave her a compensation in damages in such case, meant it as an additional remedy; and that the mesne profits should afford her a subsistence from the time of the death of her husband; and therefore if she dies pending the suit, either before or after her right to dower has been established, the Court of Equity will go on to give to her representative, the amount of the mesne profits which had accrued, from the death of her husband up to the time of her own death. 2 Bro. C. C. 620. 1 Fonb. Eq. 159. It would seem to follow as a consequence of this determination, that damages [**7]  for the detention of dower, do not arise from a wrong which dies with the person; that the amount of the mesne profits of the dower estate, to which the widow had become entitled, was a right to property vested in her, which would, in all cases, upon her death go to her legal representatives. But I do not find that the English authorities have recognized the principle entirely to this extent.

It is laid down by the most profound and accurate of the English lawyers, that if the heir, or his feoffee assign dower, and the wife accepts it, she loseth her damages. Co. Litt. 33. The reason of which, as given by a respectable compiler, is, because having the dower which is the principal, she cannot sue for damages, which are but consequential, or accessory, 2 Bac. Abr. 392. If on the acceptance of dower, the claim to damages for its detention cannot be sustained, because it is an accessory which cannot be separately demanded; then it would seem that any other circumstance, such as the death of the widow, which puts an end to the title to dower, would in like manner extinguish the right to recover damages for its detention.

But this position, that the acceptance of dower amounts [**8]  to a relinquishment of the right to the damages, is in truth, founded on the accord and acceptance of satisfaction of the party; and not on the notion that damages are but consequential or accessory, and as such cannot be recovered after the principal has been yielded up, or has ceased to exist. For if such was the rule, then it should apply to all analogous cases; and wherever the principal had in any manner ceased to exist, all accessories of every description would perish with it. It is true, that in many respects a due regard is paid to the property, out of which the demanded rents and profits were derived; since it has been held in several cases, that the court cannot decree an account for rents and profits, without having any regard to the recovery of the possession, or give mesne profits but as incident to a claim of possession, which is either admitted or adjudged to be well founded; for if a party neglects his right to a real estate, until it is barred or extinguished, he shall not be allowed to come into a Court of Equity to recover the rents and profits of it. 1 Atk. 523. Pre. Chan. 252, 516.

In real actions no damages were recoverable by the common law,  [**9]  because the question of title was first to be decided, and until that was determined, no question as to rents and profits could arise. This disposition to keep the two enquiries separate, has in fact divested the action of ejectment of its mixed character, and reduced it to a mere suit for the trial of the possessory title to real estate, and nothing more. But after the lessor of the plaintiff has, by that suit, established his title, and obtained possession, he may then bring a new and separate action for the mesne profits, or that which is, in truth, but consequential or accessory to that he had previously obtained. Every demand of rents and profits by a suit of any kind, necessarily involves a question as to the legal title to the estate, the rents and profits of which are demanded. But in England, a Court of Equity never in any case undertake to determine a mere legal title; and therefore if the legal title to dower is denied, the case must be referred to a court of common law, to be tried and determined before the Court of Chancery will proceed. Upon these grounds a denial of the widow's legal right to dower, might after her death present an obstacle in the way of the demand of [**10]  rents and profits, made by her personal representative, which a Court of Equity would not be able to remove; because a court of common law could not try the validity of a legal title, which had become extinct; and where also, according to its own principles, there could be no object in ascertaining whether or not it had ever previously existed, since the damages which the deceased owner might have recovered, had she lived to establish her right, were founded on a wrong which died with the person.

But whatever difficulties may exist in relation to this subject in England, I conceive, they have been altogether removed by the principles that have been established in Maryland.

I have considered it as well settled, that this court has an absolute, and entirely concurrent jurisdiction in all cases of dower with the courts of common law; and consequently, that a widow comes into this court unembarrassed by any question that may arise, from the denial of the legality of her title. For this court having obtained jurisdiction of the case, will extend its power to every branch, and bearing of the subject; and in order to put an end to the controversy, will determine every question,  [**11]  whether as to legal title, or mesne profits, that may or can arise. And acting with such unlimited power, and upon the principle that the compensation given to the widow, for the detention of her dower, is not to be considered as vindictive damages, the right to recover which, dies with the person; but as a portion of the property, the right to which had vested in her, it will not hesitate to enquire, and decide after her death, whether she had been vested with such a legal title to dower, as would have entitled her to those rents and profits of it, which, after her death, should be awarded to her personal representative, who comes into court to demand them.

Rents and profits of real estate are in many respects analogous to interest or money. It is a general rule, that where a purchaser has obtained the possession of real estate he had purchased, and receives the rents and profits of it, he shall pay interest on the purchase money. The receipt of the one, involving a duty to pay the other; each being considered as the product of the respective values that had been exchanged. 3 Atk. 637. 12 Ves. 27. 1 V. and B. 501. So on the other hand, war, any public [**12]  calamity, or the act of God, may be such as to discharge the holder of the land from his accountability for its rent and profits. Co. Lit. 249. 4 Co. 82. And also, such as to stop the accumulation of interest, 3 Call. 22. 2 Dall. 102, 133. They are both accretions and additions to the principal subject, the right to which, as property, vests in the owner of the principal as they arise.

If a debtor pays the whole amount of the capital, leaving the interest only due, the creditor may nevertheless, sue for, and recover the interest alone, in an action brought only for that purpose. 2 Ves. Jr. 162. 4 Harr. and Johns. 337. But if the creditor comes to a settlement of accounts with his debtor, and accepts the principal, leaving the whole, or a part of the interest unpaid, he cannot recover it; because by his own accord, and accepted satisfaction, it has been relinquished. 3 Johns. 229. 5 Johns. 268. The position is, therefore correct, that if the widow accepts an assignment of her dower from the heir, she thereby loses damages; and that on the ground of her own accord, and accepted satisfaction, and not merely because [**13]  they are consequential or accessory; and hence, if the widow does no act which can be construed into a relinquishment of the rents and profits of her dower, I cannot conceive why her personal representative should not be allowed to recover them, after the dower estate had by her death fallen into the inheritance.

If this claim was fresh, and strong on the ground of its having grown into existence during a short continuance of a recently fallen dower estate; or if the delay had been sufficiently accounted for, I should not have had much hesitation in pronouncing a judgment in favor of the plaintiff, upon the principles I have explained, notwithstanding the novelty of its character, and the fact of there being no instance to be found in the English books, of such a claim ever having been made. But this is in all respects, a very old, and a very stale claim. It would seem, that although dower may be barred by a fine, and non-claim, within five years after the right had accrued, 2 Bac. Abr. 381; yet the statute of limitations does not in any way apply to an action of dower at law; 6 Johns. 290. And it is also said that it affords no bar in equity, to a claim for the arrears [**14]  of dower, without special ground. 9 Ves. 222. But the very great length of time during which this claim has been suffered to slumber, cannot, nor ought not to be overlooked.

The defendant, and those under whom he claims, have been nearly forty years in the undisturbed possession of this real estate. The late Mary's right to dower in it, if she ever had any, accrued by the death of her husband more than twenty years before her death; and it was not until four years after her death, that this suit was instituted for the rents and profits, to which it is alleged she had become entitled during her widowhood; but of which, or of her dower, it does not appear, that she ever made any demand; nor is this great delay accounted for in any manner whatever. Therefore, upon this ground alone, of the very great lapse of time, I feel myself bound to reject this claim. 2 Vern. 276. Pre. Cha. 518. 1 Atk. 494. 2 Atk. 610. 3 Bro. C. C. 645. 4 Bro. C. C. 268. 2 Ves. Jr. 583. 4 Rand. 454. 6 Wheat. 498.

Decree, that the bill be dismissed with costs.

From this decree, the complainants appealed [**15]  to the Court of Appeals.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

A married man was seized of land in 1789, which during that year was sold at Sheriff's sale, to the ancestor of the defendant. The first tenant in fee died in 1802; his widow died in 1823. In 1827 the administrator of the widow filed a bill to recover a proportion of the rents and profits of the land, in lieu of dower. No demand or suit for the dower had been made or commenced by the widow in her life time; no reason was alleged for the omission. The purchaser and his descendants had been in possession from the time of sale. HELD, that the plaintiff could not recover.

Lapse of time may operate as a bar to a decree to account. In equity, laches and neglect are discountenanced; this tribunal only lends its power to reasonable diligence.

At law, a widow cannot recover damages against the alienee of her husband from his death, but only from the time of demand and refusal to pay her for, or assign her dower. The feoffee was not in default until that time. The same rule must prevail in equity under the same circumstances. Where she makes no demand before her death, her claim to rents and profits is gone. 

COUNSEL:
Mayer, for the appellant, contended,

1. That the rents and profits of Mary Steiger's dower portion of the land, are recoverable, although not demanded in her life-time, and although her dower was not assigned to her. Wells et ux. vs. OBeal, 2 Gill and Johns. 468. Mundy vs. Mundy, 2 Ves. Jr. 122. Mundy vs. Mundy, 4 Bro. C. C. 294. The recovery of rents and profits in equity, is not merely incidental to the recovery of dower at law; they are decreed upon the ground, that the tenant in possession is a trustee for the widow. If in cases of this sort, there has been an unreasonable delay, a court of equity will refuse interest, and sometimes costs; but if the defendant does not allege payment, and the loss from lapse of time of the evidence of the payment, the principal will be decreed, and this without a previous demand of dower on the part of the widow. Geast vs. Barber, 2 Bro. C. C. 61. Duke of Leeds vs. Corporation of New Randor, Ib. 519. Curtis vs. Curtis, Ib. 620. Ib. 631. Burridge vs. Bradyl, 1 P. Wms. 127. 1 Roper's Husband and Wife, 447, 8, 9. 1 Fonb. Eq. 22, 39. Mundy vs. Mundy, 2 Ves. Jr. 122. Coop. Pl. 136. 3 Atk. 24. Ib.  [**16]  130. Hayer vs. Thurber et al. 4 Johns. Ch. Rep. 604. Swaine vs. Perine, 5 Ib. 482.

2. The objection of length of time, to raise a presumption of payment, is not taken in the answer; but if taken, it is rendered nugatory, by the residue of the answer, which admits, among other things, that no payment has ever been made; and finally, that no one having been liable for these rents and profits, except the defendant, and he suggesting no difficulties in the way of accounting, occasioned by the lapse of time, the objection is not in this case open to him. Edsell vs. Buchanan, 2 Ves. Jr. 83. Stackhouse vs. Barnston, 10 Ves. Jr. 465.

3. Limitations do not run against a claim for dower. Ainslie vs. Medlycott, 9 Ves. 22. Foster vs. Wood, 6 Johns. C. Rep. 290. 3 Harr. and McHen. 38.

4. The rents and profits are to be accounted for, from the death of the husband.

T. P. Scott, for the appellee.

The cases cited on the other side, were cases in which the husband died seized of the property, which circumstance does not exist here. But if it were so, still, as no claim for dower was made by the widow in her life-time, her personal representative is not entitled to the rents [**17]  and profits. The object of the law, in allowing dower to the widow, was that she should have a support during her life-time. 1 Thos. Co. Lit. 527, 569. 4 Kent. Com. 35. And consequently, a claim on her part, during her life is necessary. Norton vs. Frecker, 1 Atk. 525.

Prior to the statute of Morton, neither damages could be recovered at law, nor rents and profits in equity on account of dower. 1 Coke Lit. 585. And as by that statute, damages at law could only be recovered where the husband died siezed, so the corresponding remedy in Chancery, for the rents and profits is gone, if the same circumstance does not exist. Mundy vs. Mundy, 4 Bro. Ch. C. 295. 4 Kent's Com. 63, 64. Swaine vs. Perine, 5 Johns. Ch. Rep. 482.

2. If however, the present bill had been filed by the widow herself, still, in consequence of the great lapse of time, the court would dismiss it. Deloraine vs. Browne, 3 Bro. Ch. R. 645. Hircey vs. Dinwoody, 4 Ib. 268. Pickering vs. Lord Stamford, 2 Ves. Jr. 583. Underwood vs. Lord Courtown, 2 Sch. and Lef. 71.

It is said, the answer does not properly take the defence of lapse of time. It does do so, at least in substance, and as the plaintiff has not demurred,  [**18]  he cannot avail himself of any mere formal objection.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*132]  ARCHER, J., delivered the opinion of the court.
This is a bill filed by the administrator of Ann Steiger, to recover the rents and profits of land, in which, in her life-time, she had a claim of dower.
The husband during the marriage anterior to the year 1789, was seized of the lands, out of which the rents and profits are claimed, and the same in that year were sold at sheriff's sale to the ancestor of the respondent, who, together with the respondent, have been ever since in possession of the lands. The husband of the complainant's intestate died in 1802, and she herself died in 1823, without ever having demanded, claimed, or sued for her dower. The present claim was presented in chancery by the administrator on the 21st of September, 1827.
Thus it appears that the respondent has been in possession, undisturbed by any claim of dower, for a period of twenty-one years, and that the bill was filed by the administrator, after the lapse of four years, from the death of the widow, and that no claim for rents and profits [**19]  has been made during a period of twenty-five years.
Lapse of time may operate as a bar, to a decree to account. In equity, laches and neglect are discountenanced. Stale demands, without any effort to enforce them, and after a long acquiescence, cannot meet the aid of a tribunal which only lends its power to reasonable diligence. After the lapse of twenty-five years from the inception of title, a delay, entirely unexplained, and without any claim whatever, in the intermediate time being made, it would seem to be against public policy and convenience to allow the commencement of a controversy for rents and profits.
Be this however as it may, there exist other grounds 

 [*133]  which in our judgment, are entirely decisive of this controversy.
Here the lands have been aliened in the husband's life-time, and here is the occurrence of the widow's death, without any recovery or suit, demand or claim therefor in her life-time, and without the averment or proof of the existence of any circumstance calculated to prevent the one or the other.
The authorities have been carefully examined, to ascertain whether such a case had before occurred for adjudication. But the most diligent search [**20]  has not enabled either the court or the counsel to ascertain any claim of a similar character.
At law, the widow could not recover damages against the alienee of the husband from his death, but only from the demand and refusal. The feoffee was not considered in default until on application he refused and neglected to assign to the widow her rights, and it was supposed that being in possession, he had good authority as against her, to take the profits, until he required her dower.
The same rule must prevail in equity under the same circumstances. The widow who is in pursuit of a legal claim, and is desirous of claiming from the alienee rents and profits anterior to the demand, should show to the court some equitable circumstances. No misrepresentation, fraud, or concealment, whereby she was prevented from preferring her claim, has been pretended to exist; nor is it intimated that there existed any legal impediments in her way, so that a demand on her part might have been rendered fruitless.
And to show a total absence of all ground for enabling a Court of Equity to look upon the alienee in the light of a trustee, and in that capacity accountable for the rents and profits, we have [**21]  no evidence that the respondent ever knew, that any incumbrance of dower hung over the estate. For any thing which appears to us, even the existence 

 [*134]  of the widow, or of any rights she ever had, were unknown. Were she then living, and claiming dower and rents and profits, under such circumstances these could not be claimed anterior to the filing of the bill.
In this case, however, during her life-time, no claim to dower is set up in any manner. And the bill is filed against the respondent by her administrator. Her claim to the rents and profits bearing date only from the demand under the circumstances of this case, and there having been no demand, it follows that her claim to rents and profits is gone. We are not aware of any case, which has gone further than to entertain a bill for rents and profits, where the widow dies pending her bill for dower. In such case, they have been allowed her representative in equity, with this exception, where the legal estate out of which the profits are to spring is gone, the claim to such profits falls with it, unless they should probably be maintained by showing the existence of some of the circumstances above adverted to, none of which [**22]  we have seen exist here.
DECREE AFFIRMED WITH COSTS.  

24 of 43 DOCUMENTS 

ALPHEUS J. HYATT vs. HUGH BOYLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 110; 1833 Md. LEXIS 4 

June, 1833, Decided 

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

This was an action of Assumpsit commenced by the appellee, against the appellant and one Seth Hyatt, merchants, trading at Washington, under the firm of Seth Hyatt & Co. on the 24th of November, 1827. The appellant only, was taken upon the capias. Issue was joined upon the plea of non-assumpsit.

1. At the trial the plaintiff, Boyle proved that he sold and delivered to the defendants, a quantity of tobacco, on the 10th of December, 1825, and read in evidence to the jury, the following bill of parcels and letter:

"Baltimore, 10th of December, 1825. Messrs. Seth Hyatt & Co.--Bought of Hugh Boyle, 24 kegs tobacco, branded (Parkin) at 4 months:--the whole weighing nett 3543 pounds, at 13 1/2 cents: $ 478.31. Cash paid drayage, 50 cts. $ 478.81."

"Dear Sir.--Above you have invoice and bill of lading for 24 kegs manufactured tobacco, which I hope will arrive safe, and please. I have drawn on you for the balance due, which please honor, and oblige your obedient servant, Hugh Boyle."

And also read in evidence, by consent, the following statement:--"Thomas Higinbothom declares, that he sold the tobacco mentioned in the original bill [**2]  of parcels, to one of the partners of the house of S. Hyatt & Co., who came to the counting house of the plaintiff, to purchase the same. That this tobacco was in kegs, and had been consigned to the said Boyle, who sold the same on commission, and guarantied the said sale to his principal; and that tobacco of the same brand from Richmond, had been frequently sold by plaintiff before, and since; and that no complaint had been made of its quality, or condition. That the tobacco was sent from Boyle's counting room, to the Washington packet. That the tobacco sold was Parkin's crooked brand, as stated in the bill of parcels, and was not examined by either party, prior to, or at the time of sale."

The defendants then proved, that upon the receipt of the tobacco by them, it was placed in a dry warehouse, and when received the kegs appeared to be in good order. That defendants are merchants in Washington, and bought the article to sell again, and that the plaintiff knew this fact; and also proved, that tobacco branded, Parkin's crooked brand, is a merchantable commodity, well known in the market among merchants, and that it varies in price, from 8 to 13 1/2 cents per pound, according [**3]  to the quality, and that the price agreed for in this case was a full price for first quality of Parkin's crooked brand. Defendants further proved, that no demand occurred for said tobacco after they received it, for about sixty days after the receipt, when one keg of it was sold to Samuel Stetinius, who opened it in the middle, as is the custom to open such an article. That it was then found to be unsound, rotten and unmerchantable, and was returned to said defendants. That an inspection of two other kegs immediately took place, and both proved equally unsound. That the brand of Parkin's crooked brand was a favorite brand, and always considered remarkably fine. That upon Boyle's drawing on defendant for the amount, they declined paying, and assigned as a reason that the tobacco was injured. That about six months afterwards, the plaintiff came to Washington, and another keg was opened in his presence which proved to be tolerably good; immediately on which, the defendants offered to have all the rest opened, and to pay for all that were merchantable, and to return the rest, which the plaintiff refused. That the tobacco has always since been on hand, and has never been sold, or offered [**4]  for sale by the defendants, but has been perfectly useless to them; that except the four kegs above mentioned, none other has been examined. The defendants also read the following letter from the plaintiff to them.

"Baltimore, February 17th, 1826. Messrs. Seth Hyatt & Co. Gentlemen,--Your respects of the 16th is this moment received,--I am surprised at its contents. I need not say, that I considered I was doing you a favor, by selling you that lot of tobacco at the time I did, but it was evident, as I had the same offer from another house, for the whole lot, and I gave you the preference, believing as I then did, it was your interest to have it.

I have sold more than 1000 kegs of that brand, and this is the first, I have ever heard complained of. Neither could you suppose for a moment, that I could now, after more than sixty days from the time it was purchased, and forty days after the sales were made out, and the accounts settled with the owner, have any thing to do with it. I would be exceedingly sorry that the purchase should turn out a bad one. I would at all times rather give you a good bargain than a bad one, but I cannot be accountable for this. Respectfully, &c. Hugh [**5]  Boyle."

And the defendant also proved, by a witness who did not read the letter of the 16th February, 1826, but who heard Seth Hyatt, while writing it, say, it contained a proposal to Boyle, to take back the tobacco; and on cross examination of Higginbothom, he stated, he did not believe there was an offer to return, but the lapse of time had been so great, he did not recollect.

The plaintiff then prayed the court to instruct the jury, that he was entitled to recover the whole amount of the purchase money.

First, because from the evidence in the cause, there was no warranty express, or implied, and the defendants, under the circumstances, took the tobacco at their risk.

Secondly, that there was no sufficient evidence to show that the defendants had ever offered to return the tobacco, and that if no offer was made to return the tobacco, the plaintiff is entitled to recover.

Thirdly, that there being no evidence to show fraud on the part of the plaintiff, and no evidence to show that the plaintiff had agreed to take back the property after the sale, the defence of warranty, even if there had been an implied one, cannot be set up in this action, it being an action [**6]  to recover the price agreed upon for the goods. Upon this prayer the court (HANSON, A. J.,) said, that although there might be, in the opinion of the jury, evidence of an offer on the part of the defendants, to return the tobacco within a reasonable time, yet as there was no warranty constituted by the contract proved between the parties, the plaintiff is entitled to recover,--and also, even if the contract had contained a warranty, it was no defence, in an action to recover the value of the goods sold, unless the defendants tendered a return of them within a reasonable time, and the plaintiff knew of the unsoundness of the article--and directed the jury that the plaintiff was entitled to recover the full amount of the purchase money. The defendant excepted.

1. The plaintiff and defendants having given the evidence as stated in the first bill of exceptions, which it is agreed shall be part of this, the defendant prayed the opinion of the court to the jury, that in this case, there is evidence of a warranty, that the tobacco sold was merchantable, and that if the jury believe it was not merchantable at the time of its sale, the plaintiff is not entitled to recover for that part [**7]  which was not merchantable at the time of sale. 2. If the jury believe, that the tobacco sold, at the time of sale was unmerchantable and unsound, and unfit for sale, and that the defendant at the time of sale, did not examine it, and within a reasonable time offered to return the whole of it, or such part as was unsound and unmerchantable, and the plaintiff refused to receive the same; then the plaintiff is not entitled to recover for the unsound and unmerchantable tobacco, which was so at the time of sale. Both of which opinions the court refused to give.

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

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

B sold H a quantity of tobacco, and delivered a bill of parcels, which described it as follows:--"24 kegs of tobacco, branded (Parkin) at four months, weighing, &c., at 13 1/2 cents. B had received this tobacco for sale on commission--sold it, and guarantied the sale to his principal. The purchase was made at the plaintiff's counting room, where the tobacco was. It was branded, as stated in the bill of parcels, and not examined by either party prior to, or at the time of the sale. The price agreed for was a full price for a merchantable commodity; and the brand in question was a favorite one, always considered remarkably fine, though it fluctuated in price from 8 to 13 1/2 cents per pound. The tobacco in part proved unsound, and none of it had been re-sold; the purchaser proposed to return that which was unmerchantable, and pay for the residue. In an action for the price, HELD, that there was no implied warranty of quality in this contract; that in relation to the quality of the tobacco, nothing was stipulated; and that the terms on the part of the vendor were complied with by the delivery of the tobacco, branded in conformity with the bill of parcels.

It is a general principle of the common law, that in sales of personal property, the seller is not answerable for any defects in the quality or condition of the article sold, without there is an express warranty or fraud.

The exception to this rule, that where there is no opportunity of inspection, the seller impliedly warrants the quality of the commodity sold, only applies to those cases, where the examination at the time of the sale is, morally speaking, impracticable; as where goods are sold before their arrival or landing. The mere fact of the inspection being attended with inconvenience or labor, is not equivalent to its impracticability.

Where there is a warranty of quality in the sale of a chattel, and an offer to return the goods purchased in due time, if the warranty is violated, the purchaser, in an action against him for the price, may defeat the action, whether the vendor knew of the defect of quality or not; for the scienter in such case is immaterial.

The case of Osgood vs. Lewis, 2 Harris & Gill, 495, explained, and Thornton Winn, 12 Wheat, 183, denied.  

COUNSEL:
Walsh, for the appellant, contended,

1. That the bill of parcels connected with the other evidence, was in law a warranty, that the tobacco was merchantable, and that if it was not merchantable, it was a defence in this action. Osgood vs. Lewis, 2 Harr. and Gill, 495. The brand by which the tobacco was described was proved to be a great favorite, and to give the article a high value in the market. It was the same as though the bill of parcels had expressly asserted, that the article was fine [**8]  and merchantable.

This brand, the evidence shows, enjoyed a high reputation in the market, in which the plaintiff resided. He must be presumed therefore, to have known it, and to have described the article by its brand, for the purpose of inducing the defendant to believe he was buying an article of good quality. Bridge vs. Wain, 2 Serg. and Low, 487. Tye vs. Fynmore, 3 Camp. Rep. 461.

2. There was evidence to go to the jury, that the appellant offered to return the tobacco, or such parts as were unmerchantable, and that the appellee refused to receive it. Yates vs. Pym, 6 Taunt. 447.

3. There was an implied warranty, that the tobacco was merchantable, and that it would answer the purpose for which it was sold. The defendant was not bound to examine, as the brand, per se, imported it to be merchantable. 2 Kent Com. 247. It was known to plaintiff, that defendant purchased to sell, and therefore the former is to be considered as impliedly warranting that the article will answer the purpose contemplated. Gray vs. Cox, 10 Serg. and Low. 285. Bluett vs. Osborne, 2 Ib. 437. Gardiner vs. Gray, 4 Camp. Rep. 144.

And he insisted, that this defence is available in an action [**9]  for the price of the goods, without proof of fraud on the part of the plaintiff. Okell vs. Smith 2 Serg. and Low. 317 Johnston vs. Cope, et al. 3 Harr. and Johns. 89.

Gill, for the appellee.

All manufactured tobacco is branded with the name of the maker, and such is the case with most other manufactured articles. This practice must be discontinued, if describing the article by the brand, is to be construed into a warranty. He contended, that the brand was attached as a mere description, and was no warranty. This action is to recover the price of goods sold and delivered, and not returned to the seller. If therefore there had been a warranty, the plaintiff must prevail; as to defeat the action, there must not only have been a return, or offer to return in a reasonable time, but it must be shown, that plaintiff knew of the unsoundness of the article; otherwise, the remedy of the vendee is upon the warranty. Thornton vs. Wynn, 12 Wheat. Rep. 185, 193.

The cases cited on the other side, were actions on the warranty by the vendee. 4 Johns. Rep. 421. Bluett vs. Osborne, 2 Serg. and Low. 437. Sands and Crump vs. Taylor and Lovett, 5 Johns. 395, 410. But in this case, there [**10]  was no warranty expressed or implied. Johnston vs. Cope, et al. 3 Harr. and Johns. 89. The bill of parcels says nothing of the quality or condition of the goods. Osgood and Lewis, 2 Harr. and Gill, 521, 523. All that the bill of parcels affirms, is the fact, that the tobacco was of a particular brand, and that was true.

Johnson, in reply.

1. The tobacco was expressly warranted to be merchantable, or at least, not to be unsound or rotten.

It is conceded, that it was to be of Parkin's crooked brand, and the delivery of an article corresponding only in name, with that sold, is not a compliance with the vendor's contract.

The article delivered must be substantially the same as that sold. The evidence shows, that tobacco branded as this was, is a fine and merchantable commodity.--Can a contract for the sale of such an article, be complied with by the delivery of an inferior, and unsound tobacco, because the kegs are branded with the right brand?

The tobacco should be proved to be of the make of Parkins, and to be of merchantable quality. Gardiner vs. Gray, 4 Camp. 144. Osgood vs. Lewis, 2 Harr. and Gill, 495. Ib. 524.

The intention of the parties was, the one [**11]  to buy, and the other to sell, a saleable article--The defendant bought to sell again, and the plaintiff knew it. When plaintiff told defendant, he would sell him Parkin's crooked brand, he told him in effect, that he would sell him a merchantable tobacco. He affirmed it to be so, and that is equivalent to a warranty. Ib. 2 Harr. and Gill, 518.

2. But if the warranty was not express, it was implied. When a party buys for a particular purpose known to the vendor, the former has a right to expect a commodity that will answer the purpose contemplated. Laing vs Fidgeon, 6 Taunt. 108. Tye vs. Fynmore, 3 Camp. 461. Okell vs. Smith, 2 Serg. and Low. 316. Davis vs. Noak, Ib. 437.

If the vendor, to evade the effect of his implied warranty, relies upon the fact, that the vendee might have examined for himself, he must show affirmatively, that such an opportunity existed. 3 Kent Com. 374.

3. The warranty, whether express or implied, is a defence to the present action, and defendant will not be driven to a cross suit. The doctrine in 12 Wheat, 185, would beget a circuity of action, without the least necessity, and would be productive of injustice by subjecting an innocent defendant [**12]  to the costs of the first action. Upon this point he referred to 2 Saund. Pl. and Ev. 917. 1 Selw. N. P. 149. (no) Farnsworth vs. Garrard, 1 Camp. 38. Fisher vs. Samuda, Ib. 190. Payne vs. Whale, 7 East. 274. Basten vs. Butter, Ib. 479. Ib. 482. 2 Stark. Ev. 641. Miller vs. Smith, 1 Mason, 437. Taft vs. The Inhabitants of Montague, 14 Massa. Rep. 282. Okell vs. Smith, 2 Serg. and Low. 316. Lomi vs. Tucker, 19 Serg. and Low. 255.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*118]  DORSEY, J., delivered the opinion of the court.
There is no pretence that the appellee was not a bona fide holder of the tobacco sold, without knowledge of its unsoundness, or that the kegs were not branded with the genuine mark of Parkin's crooked brand; but it is insisted that there was an implied warranty of quality, according to the principles settled by this court in Osgood vs. Lewis, 2 H. & G. 495. A fair exposition of the court's opinion in that case, will lead to no such inference. The general principle of the common law, is there more than once reiterated: "that in sales of personal property the seller [**13]  is not answerable for any defects in the quality or condition of the article sold, without an express warranty or fraud." In enumerating some of the exceptions to this rule, it is stated, that if the buyer had no opportunity of ascertaining by inspection, the quality of the article, there is an implied warranty that it be saleable in the market, under the denomination by which it was sold." To sustain the appellant's position of implied warranty, no aid can be drawn from this exception. The purchase was of twenty-four kegs of tobacco, branded with Parkin's crooked brand," and by that denomination were they saleable in the market. 

 [*119]  Of the quality of that tobacco nothing was stipulated. The terms on the part of the vendor were complied with, by the delivery of tobacco, thus characterized by the brand. By the brand it was saleable in the market, and that was the only assurance of quality, on which the vendee relied. Once admit the doctrine contended for by the appellant, and as to all commercial transactions, you, in effect, annihilate the distinction between warranty of title and warranty of quality. Every man who sells a barrel of flour, fish, pork, or any commodity subject [**14]  to inspection, or which had acquired a reputation in the market, will be held impliedly, to warrant both title and quality. To such a length, this court feels itself wholly unauthorized to extend implied warranties. Nor could it do so, without explicitly overruling the case of Johnston vs. Cope, and others, 3 H. & J. 89, and unsettling the principles it has recognized in Osgood and Lewis.
Much stress has been laid on an isolated paragraph, extracted from Osgood and Lewis, in which this court have said, that "it is not sufficient that the article delivered, abstractedly bear the name of that contracted for; it must do more, there is an implied warranty that it be of that quality, which a commodity of that name must possess to be saleable in the market." But construe this sentence in conjunction with the remaining parts of the court's opinion, and the interpretations attempted to be affixed to it, cannot for a moment be sustained. The remark was predicated upon the case of Bridge vs. Wain, 1 Stark. 504, and immediately followed the reference made to it. In that case, Wain had sold to Bridge a quantity of "scarlet cuttings," an article [**15]  in which the English dealt with the Chinese to a considerable extent. The proof was, that "scarlet cuttings" were understood in the market to mean cuttings of cloth only, without any admixture of serge or other materials; and that the article sold to the plaintiff did contain a quantity of serge, &c.

 [*120]  The position stated by this court, was designed to be nothing more than what was considered as there decided; that although the article delivered, abstractedly speaking, was scarlet cuttings, yet it was not scarlet cuttings of that quality, which were saleable in this market as such. So, in the present case, the delivery of any tobacco not branded as per the bill of parcels, no matter what its excellence might be, would be no compliance with the terms of sale: it would not be sufficient, because it did not possess that quality, attribute, characteristic mark, viz. Parkin's crooked brand, by which it was known, and rendered saleable in the market.
It was urged too, that from the nature of the article, and the manner in which purchases of it are made, the appellant had no opportunity of inspection, and that therefore the seller impliedly warranted its quality. But [**16]  this exception to the general rule of caveat emptor does not apply to cases circumstanced like the present; but to those, where the examination at the time of sale, is, morally speaking, impracticable, as where goods are sold before their arrival or landing. The mere fact of the inspection being attended with inconvenience, or labour, is not equivalent to its impracticability. If the purchaser desire to avoid it, and yet obtain the protection it would afford him, he must do so by exacting from the vendor an express warranty of quality.
It was likewise insisted, that the appellee, knowing the purpose for which the tobacco was purchased, impliedly warranted it to be suitable therefor; that the opinions of Chief Justice Abbott, and Lord Ellenborough, on which such a doctrine rests, were cited with approbation by this court in Osgood & Lewis. But this is not the fact. No sanction or approval was then, or is now designed to be given to those opinions. They were simply referred to, as showing how much further, some of the English judges appeared disposed to go, in engrafting exceptions upon the rule, caveat emptor, than this court had gone in the case of Osgood  [**17]   & Lewis.

 [*121]  The County Court were right in instructing the jury, as in the first bill of exceptions, that there was no warranty of the quality of the tobacco sold. But they were clearly in error in the latter part of their instruction; that although the contract contained a warranty, and an offer to return the goods had been made by the vendee in due time; yet that it was no defence to the action unless the plaintiff knew of the unsoundness of the article. The scienter in such a case need not be alleged, and if charged, need not be proved.
This error of the court below, however, furnishes no ground for reversing their judgment. The appellant sustained no injury from it; as he had offered no proof either of a warranty, or a fraudulent scienter. And upon no event therefore, nor upon the assumption of both, or either of these grounds, was it competent for the jury to have given a verdict in his favor.
The same remarks are applicable to the opinion of the County Court, in the second bill of exceptions.
JUDGMENT AFFIRMED.  

25 of 43 DOCUMENTS 

HICKS vs. HICKS AND NORRIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 75; 1832 Md. LEXIS 11 

December, 1832, Decided 

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

The present bill was filed by the appellant, Elijah Hicks, against the appellees, Charles G. Hicks and Thomas A. Norris, on the 23d of May, 1828.

The complainant alleged, that in the year 1818, he borrowed from the appellee, Charles G. Hicks, the sum of $ 500, for which he was to pay an interest at the rate of nine per centum per annum, and that he gave his bond or note, for the amount of the loan. That some time in April, 1824, the said Charles G. called on complainant for payment, and being unable then to pay either principal or interest, he agreed to give him a mortgage on a lot of ground in the city of Baltimore, of which he was seized, and accordingly on the 8th of the same month, he executed such an instrument, and at the same time, paid said Charles, the sum of $ 106 36 in part of the debt. That notwithstanding the recital in said mortgage, that the mortgagor had given the mortgagee his bond for $ 1244 32, without interest for two years, yet the only debt due from him to said mortgagee, was for the before mentioned loan in 1818, with interest thereon, and the further sum of $ 90, advanced by him for complainant, in payment of certain [**2]  ground rents. That in May, 1826, he mortgaged the same property to Thomas A. Norris, (the other appellee,) for the sum of $ 800, which debt he has since reduced to $ 400. That the said Charles G. gave his notes to Norris for the amount; and then, on the 21st of June, 1826, taking advantage of his infirmities and necessities, induced complainant to execute to him an absolute deed for the property, without any other, or further consideration, than what is already mentioned; and which is much below the actual value of the property. That complainant however, refused to execute the deed, until the grantee (the said Charles,) signed a paper, sufficiently showing, that although absolute in its terms, it was only intended to operate as a mortgage. That nevertheless, the said Charles now insists upon holding said property as his own, and denies the right of complainant to redeem the same, or to recognize any interest in him thereto. Prayer, that the deed of the 21st of June, 1826, may be decreed to be what it was designed to be, a mere security for the payment of money; that the mortgaged premises may be sold; and an account taken of the rents and profits received by the defendant, Hicks. That [**3]  the sums really due him and Norris, may be paid out of the proceeds thereof; the residue to the complainant, and for general relief.

The answer of Charles G. Hicks, denied that he ever loaned complainant money at usurious interest, but that in the year 1818, and from time to time, for several years afterwards, he advanced for his accommodation divers sums of money, and was also in the habit of selling him a variety of articles, and that during all this period, they were accustomed to liquidate their accounts, at the end of each year, including interest upon his advances, for the accommodation of the complainant, at the rate of six per cent. per annum, and for the balance so found due him, he was in the habit of taking complainant's note, bearing legal interest. That at the end of each succeeding year, they settled in the same manner, when the old note would be given up, and a new one taken for the whole balance then due. By adjustments of their accounts in this way, the claim of this defendant was justly increased from time to time, until the year 1824, when the amount being considerable, he pressed for security, and the complainant agreed to give him the mortgage spoken of in [**4]  the bill, payable in two years, when the whole amount due him, with interest added to that time was $ 1244 32, and the mortgage was accordingly executed. That at the expiration of the two years, the whole of the mortgaged debt being due, except the small sum of $ 160 36, which was paid at the time of its execution; and the sum of $ 400 being due in the mortgage to Norris, the complainant, in the month of June, in the year 1826, proposed to sell this defendant his equity of redemption in the said mortgaged premises, in consideration of his paying the debt to Norris, and advancing the complainant some hundred or two dollars, in addition to the debt due from him to the defendant, on mortgage as aforesaid--and the defendant consenting thereto, the deed of the 21st of June, 1826, was accordingly executed, and delivered to him by the complainant. That subsequently being urged so to do by the complainant, he agreed to sell him the same property at any period within two years, for the same consideration as is mentioned in the deed last referred to, and in the meantime, that he should remain in possession as defendant's tenant, at a rent of $ 125 per annum, and a paper to that effect was signed [**5]  by him. The answer denies that this latter contract had any thing to do with the deed from complainant, or formed any part of the consideration for the execution of the same; or that complainant refused to sign said deed, unless the defendant would give him a written acknowledgment, that it was to be regarded as only a mortgage. The answer on the contrary avers, that there never was such a contract written or oral. The answer also denies that defendant took advantage of the necessities and infirmities of the complainant or that the consideration for the property was inadequate. It further states, that on the 24th of August, 1826, the complainant finding that he should not be able to repurchase the property, released his right to do so, and signed and delivered to defendant a paper to that effect, and delivered him the entire possession; since when, the defendant has held and enjoyed the undisturbed possession thereof, and has considered himself the unqualified owner of the same. Norris by his answer admits the payment by Charles G. Hicks to him, of the $ 400 due on his mortgage from complainant. The deed of the 21st of June, 1826, which is exhibited with the bill, recites the mortgage [**6]  of the 8th of April, 1824, from the complainant to Charles G. Hicks, and that the debt therein mentioned is due and unpaid, to wit, the sum of $ 1244 32, and that in consideration thereof, complainant had agreed to sell and convey absolutely to defendant, the mortgaged premises, subject to the payment by him, of the debt to Norris, &c. By the terms of this deed, the complainant conveys to the defendant Hicks, an absolute fee simple estate in the property in controversy.

The paper signed by the defendant, on the day of the execution of the above deed, is in these words:-- "1826, June 21st. I do agree with Elijah Hicks, that at the end of two years from this date, by Elijah Hicks, or his heirs, paying to Charles G. Hicks or his heirs, the sum mentioned in the deed; the said Charles G. Hicks, or his heirs, is to execute a deed to the said Elijah Hicks or his heirs, on the property contained in the said deed." "N. B. The said Elijah is to pay Charles $ 125 per year."

One of the exhibits filed with the answer, is the release of the complainant of the 24th of August, 1826. It is as follows:--"I release all my right and claim of the house in town, that I have deeded to Charles G.  [**7]  Hicks, and give him possession."

Proof was taken under a commission, but it is so far adverted to in the opinion of the Chancellor, and of this court, as to render its introduction by the reporters unnecessary.

BLAND, Chancellor, (March Term, 1830.)

The second mortgagee, Thomas A. Norris, has been made a defendant, but as he has by his answer acknowledged himself satisfied, and disclaims all further interest in this controversy, I shall, in the observation I have to make upon this case, pass him by as if he were in fact no party to it.

There can be no doubt, that these parties, Elijah and Charles, at one time stood in the relation to each other of mortgagor and mortgagee; but on the 21st of June, 1826, with a full knowledge of their situation, they put an end to that relationship, and by the express terms of several instruments of writing, and their unequivocal acts, assumed the position towards each other, of vendor and vendee, with a condition to re-convey, on the payment of a specified sum of money, within a certain time. It appears that they met together, for the purpose of adjusting the claim of the defendant, Charles, upon the plaintiff, which was then secured,  [**8]  by a mortgage upon a house and lot, in the city of Baltimore, which the plaintiff had subsequently mortgaged to Thomas A. Norris, to whom there was then due the sum of $ 400, and after much conversation upon the subject, the deed of the 21st of June, 1826, was voluntarily and deliberately executed and delivered, which deed recites, &c.; and on the same day and time, or very soon after the delivery of the said deed, another instrument of writing was executed, and delivered by the defendant Charles, to the plaintiff, in these words:--"1826, June 21st.--I do agree with Elijah Hicks, that at the end of two years from this date, by Elijah Hicks, or his heirs, paying to Charles G. Hicks, or his heirs, the sum mentioned in the deed, the said Charles G. Hicks, or his heirs, is to execute a deed to the said Elijah Hicks, or his heirs, on the property contained in said deed."--"N. B. The said Elijah Hicks is to pay Charles $ 125 per year."

The plaintiff then had possession of the property, but on the 24th of August, following, he executed and delivered an instrument of writing to the defendant Charles, which is in these words: "I release all my right and claim of the house in town, that [**9]  I have deeded to Charles G. Hicks, and give him possession"--and at the same time, or soon after, gave up the entire possession of the property to the defendant, Charles G. Hicks.

Considering the contract between these parties, as thus manifested by their acts and writings, it can only be regarded as a conditional sale, and not as a mortgage; since it is clear, that they intended to make a substantial alteration in the contract, which had, until then, subsisted between them; to put an end to it as a mortgage, and to make it in all respects an absolute sale, saving only to the vendor a power to re-purchase within two years, on the re-payment of the purchase money, without its being reciprocated by any covenant or obligation, upon which the defendant Charles, could sue for, and recover the amount which he had advanced, and thus divesting it of the principal and necessary characteristic of a mortgage.

But it has been urged, that the plaintiff was imposed upon and defrauded. The bill charges, that the deed of the 21st of June, 1826, was only intended as a mortgage. That the defendant Charles took advantage of the necessitous situation, and infirmities of the plaintiff, and of [**10]  the situation in which they stood. That the property is worth infinitely more money than the whole amount of that, which by his last contract was stipulated by the defendant, Charles, to be paid for it, and that it was worth at least, $ 2000. All which is denied by the answer of Charles G. Hicks, and there is no proof which at all sustains the bill in opposition to that answer, except as to the value of the property. The plaintiff may have been without a sufficiency of money, or property, to pay all his just debts, and so far in a necessitous situation; but there is nothing in this case, which shows that the circumstances of poverty were so brought to bear upon him, or were then so urgently pressing upon his mind, as to prevent or overrule the sound and fair exercise of his judgment. It is charged that the defendant, Charles, took advantage of the plaintiff's infirmities. It is presumed that the plaintiff, by this allegation, alludes to some mental infirmity, with which he was then afflicted; because it is well known, that this court only interposes to prevent those who are intellectually imbecile, from being taken advantage of, by having their weakness in that respect fraudulently [**11]  practised upon; but never interferes with the mere bad bargains of men of sound and free minds. There is no explanation to be found, either in the pleadings, or in the testimony, of what is exactly meant by the plaintiff's infirmities, as thus spoken of. Whether he was subject to any constitutional, bodily, or mental infirmity of a general or periodical nature, or whether his infirmity originated from his own vicious habits, or from any other cause; nor is there any evidence of his having been at that, or any other time afflicted with any mental imbecility whatever. It is true, that gross inadequacy of consideration may be an evidence of fraud, yet that will not itself, and alone, be deemed a sufficient ground on which to pronounce any contract void, which has been made freely, and without mistake, between parties of sound mind. But although it may be admitted that this plaintiff has not made so advantageous a bargain as he might have done, yet there is no evidence of fraud or mistake.

It has been mainly urged, that the contract between the parties must be considered as a mortgage, and not as a conditional sale. In cases of this kind every thing depends upon what shall be deemed [**12]  the intention of the parties. Where there are several distinct instruments of writing relating to the same subject, they must be all taken together, and the contract deduced from a fair construction of the whole; and evidence dehors the writing may be let in, not as a means of explaining, or construing them, but to show what was the real and true character of the whole contract; and if it appears to have been intended only as a mortgage security, the right of redemption will not be allowed to be fettered by any conditions disadvantageous to the mortgagor. If on the other hand, it is shewn to be an absolute sale, it will not be converted into a mortgage, merely because of a stipulation to re-convey, on the re-payment of the purchase money, within a certain time.

To constitute the relation of mortgagor, and mortgagee, it is essential that their remedies should be in all respects mutual. The one should have a right to redeem, and the other to foreclose, or sue for his money. For where an estate has been absolutely conveyed, there could be no equity in leaving it to be held at the risk of one party, and allowing the other whenever he thought proper, to treat it as a mortgage, and [**13]  come for redemption, when the other party had no remedy for his money, which he could not sue for without a covenant to repay. 2 Freem. 70, 86, 144, 153. 1 Vern. 191, 268. 1 P. Wms. 269. Forres. 62. Sel. Cas. in Ch. 10. 2 Cha. Rep. 275. Pre. Chan. 95, 423.  2 Atk. 495. 3 Atk. 389. 2 Sch. and Lef. 393. 19 Ves. 413. 3 Swan. 631. Co. Litt. 205, no. 1.  1 Wash. 15, 125. 1 Call. 280. 2 Call. 521. 2 Mun. 40. 4 Mun. 140. 1 Rand. 121.  7 Cran. 219.

Upon the whole, taking the several instruments of writing together, as furnishing the only safe and unequivocal evidence of the contract, which these parties, Elijah and Charles, intended to make, I feel satisfied that it can only be regarded as a conditional sale; there being no reciprocity of remedies--and the right to call for a reconveyance, on the repayment of the purchase money, having been released and abandoned, the sale must now be deemed perfect, final, and conclusive in all respects.

BILL DISMISSED WITH COSTS.

From this decree the complainant appealed to this court.  

DISPOSITION:
DECREE [**14]  AFFIRMED.  

HEADNOTES:

A mortgagee may become the purchaser of the equity redemption, if he does not make use of his incumbrance to influence the mortgagor to part with the estate for less than its real value.

Where the relation of mortgagor and mortgagee exists, and the latter purchases from the former his equity of redemption, worth from $ 2000 to $ 2500 for $ 1600, this is not such an inadequacy of price, as to induce a Court of Equity, in the absence of corroborative proof, to impeach the sale as unfair. It is a circumstance to be weighed in the consideration of the subject, but it is not, unsupported, to overbalance other facts indicating an honest negotiation between the parties.

An instrument or defeasance executed by the grantee, at the time of the execution of an absolute conveyance to him, for reconveyance to the grantor on his paying a sum of money, may constitute the transaction a mortgage; but such an instrument does not always operate that effect.

The character of the transaction must in every case depend on the inquiry, whether the contract is a security for the re-payment of money. If it is, the parties are in the relation of mortgagor and mortgagee. If it is not, the transaction must take the stamp of a conditional sale.

A case of conditional sale. 

COUNSEL:
Gill, for the appellant contended.

1. That in April, 1824, the relation of mortgagor and mortgagee, existed between Elijah and Charles G. Hicks. 2. That up to 24th August, 1826, Elijah Hicks was in necessitous circumstances, and unable to pay Charles G. Hicks. 3. That the property assigned to Charles G. Hicks, by Elijah, in June, 1826, was much more than sufficient to discharge the incumbrances upon it, including Charles G. Hicks' debt. 4. That Charles G. Hicks, when he took the absolute deed from Elijah, in June, 1826, then knowing his necessitous condition--that the property conveyed by it, was more than sufficient to pay all the claims upon it-- giving a grossly inadequate consideration for the equity of redemption,--acknowledging still that Elijah had a right to redeem within a limited period,--having taken the release of the 24th August, without giving any consideration for that, must still be considered a mortgagee, and holding the property conveyed to him, merely as a security. 5. That where the relation of mortgagor and mortgagee is once clearly established, a court of equity will not permit the creditor to take advantage of that relation, and procure from [**15]  his necessitous debtor an absolute assignment of his equity of redemption, of great value, either without very clear, full, and irresistible proof, that an actual sale was intended, or a fair and full consideration paid; but will look through all the dealings, and hold the parties, in the absence of such proof, to their original relations of debtor and creditor. 4. That in this case, the idea that a sale was contemplated, is rebutted by the absence of any consideration paid for the right of redemption--by the fact that the consideration recited in the assignments is not the true and real consideration; by the fact that the grantee did not go into immediate possession, nor the grantor agree to pay any rent. 7. That therefore the deed of June, 1826, was in equity a mortgage. 8. That Elijah Hicks, being obliged to come into a court of equity to have the deed of June, 1826, decreed a mortgage, the court will, as essential to the settlement of all claims between the parties, order the property to be sold, an account to be taken, and the mortgagor's debt paid. 9. That in this case, the answer of the defendant, being contradicted in material and substantial parts, is not to be considered [**16]  as a bar to the relief sought, and comes within the rule, falsus in uno, falsus in omnibus. 10. The bill being filed 23d May, 1828, and the right to redeem not expiring until 21st June, 1828, the complainant has not delayed asserting his rights so long, as to have forfeited the peculiar equities, which mortgagor's vendding their right of redemption to mortgagees have, to impeach such sales when a full consideration has not been paid, and resume their original relations. He cited 4 Kent's Com. 137. Manlove vs. Ball and Burton, 2 Vern. 84. Am. Ch. Dig. Tit. Mort. 343, 4, 5. 4 Mun. 141. Co. Lit. 203, (b) no. 1. Conway's Ex'rs vs. Alexander, 7 Cranch. 236.

No counsel argued for the appellee.  

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

OPINIONBY:
EARLE 

OPINION:

 [*85]  EARLE, J., delivered the opinion of the court.
A principle was adverted to in the argument, which will be taken as the basis of a part of our opinion in this case, without recurring to the case of Hicks vs. Cooke, 4 Dows. Par. Cases 16, where it seems to have been controverted. It is, that the mortgagee may become the purchaser of the equity of redemption, if he does [**17]  not make use of his incumbrance to influence the mortgagor to part with the estate, for less than its real value.
This principle we think was not infringed by Charles G. Hicks, in his purchase of Elijah Hicks, on the 21st of June, 1826. The mortgage money became due in April, 1826, and no steps to enforce payment, were either taken or menaced; nor were any indirect means used by him, that we can perceive, to influence the mortgagor to part with his equity of redemption. On the contrary, he appears to have entered into the agreement voluntarily, and uninfluenced by any consideration but that of parting with his estate for what he then supposed its value.
The purchase money was about $ 1600, and whether the house and lot in the city of Baltimore, were at that time worth more, is not ascertained by the testimony. Three years after, the greater part of the witnesses estimate them to be worth from twenty-two to twenty-five hundred dollars, but all are silent as to the fluctuations in price of property so 

 [*86]  situated, and none determined whether it increased or diminished in value. But let us suppose that the price was stationary, and the mortgaged premises were of [**18]  the value of from twenty to twenty-five hundred dollars, in the year 1826, yet in our view, the $ 1600 given, would not be such an inadequacy of price, as to induce us, in the absence of corroborative proof, to fix on the transaction of sale, the character of unfair dealing. It is a circumstance to be weighed in the consideration of the subject, but it is not unsupported, to over-balance many others, that indicate an honest and fair negotiation between the parties.
Another ground taken in the argument was, that the instrument simultaneously executed with the absolute conveyance in the case, converted it into a mortgage, and that it should have been treated as such in the Court of Chancery.
That an instrument, or defeasance executed by the grantee, at the time of the absolute deed, for re-conveyance to the grantor, on his paying a sum of money, may constitute the transaction a mortgage, is undeniably true; but that such an instrument does not always operate that effect, is a proposition equally certain; 7 Cranch 22. The character of the transaction must in every case depend on the inquiry, whether the contract is a security for the re-payment of money. If it is, the parties [**19]  are in the relation of mortgagor and mortgagee; but if it is not, the transaction must take the stamp of a conditional sale. The transaction before us, we have examined with every possible attention, and we cannot discover any thing in it, that has the appearance of its being a security for the repayment of money, by Elijah Hicks, to Charles G. Hicks. On the contrary, we think it is very clear that the parties designed it to be a sale, on a condition to be performed by Elijah Hicks and his heirs; if not confining the performance to him and them. This is the language that both of them hold to the witnesses in the cause. Charles G. Hicks told Joshua Gorsuch, that if the money was refunded within the two years, he was bound to re-convey 

 [*87]  the property to Elijah Hicks and his heirs, but he was under no obligation to make a deed to any other person; and Elijah Hicks informed Abraham H. Price, that the property was not to pass out of the family, but that if he, Elijah, could raise the money to pay for it, within two years, without a sale, that his brother Charles had consented to let him have it. And the instrument concurrently executed with [**20]  the absolute deed, seems to countenance the same idea, and contains a provision that constitutes Elijah Hicks a tenant of the premises, at a rent of $ 125 per annum. These stipulations, and further attendant circumstances that might be mentioned, are inconsistent with the interpretation insisted on by the appellant, and make it manifest to us, that a security for the repayment of money, was not contemplated by the parties, and that the transactions between them of the 21st of June, 1826, must be considered as a conditional sale by Charles G. Hicks to his brother.
DECREE AFFIRMED.  

26 of 43 DOCUMENTS 

KLINEFELTER'S LESSEE vs. SARAH CAREY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 349; 1831 Md. LEXIS 22 

December, 1831, Decided 

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

On the 9th of September, 1818, Michael Klinefelter's lessee, (the present appellant,) brought an Ejectment for a tract, or parcel of land in Baltimore County, called Lot No. 191, against one Solomon Richards, the tenant in possession.

The following statement of the case is taken from the opinion of the Judge, who pronounced the decision of this court.

This action of Ejectment was instituted to September term, 1818, when the tenant in possession failing to appear, judgment was rendered against the casual ejector, and a writ of habere facias possessionem issued returnable to March term, 1819, when the sheriff returned that he had delivered possession, on the 26th of November, 1818. About nine years afterwards, (to wit, November 23, 1827,) a petition was filed by Sarah Carey, and the tenant in possession, to set aside the judgment against the casual ejector, and to be permitted to appear to, and defend the said action, they making the usual confession of lease, entry, and ouster, and that a writ of restitution might issue, to restore the possession to the tenant in possession, and that a rule might be laid upon the lessor of the plaintiff,  [**2]  to shew cause why the said motion should not be granted. Upon this petition the court ordered the judgment to be set aside, the cause to be brought up by regular continuances, and a writ of restitution to issue to restore the possession to Sarah Carey, who claimed the title, and that she be admitted as defendant. To declaration filed against her, Sarah Carey, put in the plea of not guilty; and afterwards, on the 8th day of January, 1829, moved the court, that the proceedings in the cause might be stayed, upon payment to the lessor the rent due to him, at the time of the suit brought, and the costs of suit. On the 21st day of February, 1829, the court, "ordered, that the proceedings in this cause be stayed, upon the defendants paying to the lessor of the plaintiff, all rent in arrear, which accrued from the time of the conveyance of the reversionary right to him, up to the day of the delivery of possession of the premises to the lessor." Whereupon the plaintiff prayed an appeal to this court.  

DISPOSITION:
JUDGMENT REVERSED, and a writ of Restitution awarded, to restore the possession to the appellant.  

HEADNOTES:

In 1818, the tenant in possession failing to appear after notice, to an action of Ejectment, judgment was rendered against the casual ejector. The plaintiff was then put into possession, under a writ of habere facias regularly executed. In 1827, C, claiming title to the land, by petition, in which the tenant in possession united, prayed the County Court to set aside the judgment, restore the possession, and admit the petitioners to defend the action, upon the usual terms; this being granted, the defendants afterwards moved the court, to stay all proceedings, upon payment to the lessor, the rent due to him at the time of bringing the suit and the costs. This motion being also granted, the plaintiff appealed. HELD, that the County Court erred in striking out the judgment, which was entered upon the tenants failing to appear, after such a lapse of time, and that the lessor of the plaintiff was entitled to a writ of restitution.

Wherever a judgment in ejectment has been stricken out upon the tenants failure to appear, it has always been one of recent date. It has generally been, where the period had been too short for improvements of importance to have been made in the intermediate time, and where no trial had been lost.  

COUNSEL:
Samuel I. Donaldson for the appellant, contended,

1. The motion to set aside the judgment [**3]  in this case was too late in point of time. Whenever the acquiescence is so long, that the party may be presumed to have submitted to the judgment complained of, the court will not disturb it. No judgment from which an appeal will not lie, can be considered a recent one. If an opportunity of trial has been lost by the delay, the judgment must stand, even though the motion to strike out, be founded upon an affidavit of merits. West vs. Davis, 7 East. 363. Harris vs. Masters, 9 Serg. and Low. 158. Aslin vs. Parkin, 2 Burr. 665, 756. Jackson vs. Stiles, 4 Johns. Rep. 489. Spurrier vs. Yieldhall, 2 Harr. and McHen. 173. Gover vs. Cooley, 1 Harr. and Gill, 7. Jackson vs. Stiles, 1 Caines, 505. Munnikuyson vs. Dorsett, 2 Harr. and Gill, 374. Dand vs. Barnes, 1 Serg. and Low. 291. Fletcher vs. Wells. 1 Ib. 352. Stat. 4, Geo. 2, ch. 28, sec. 2.

2. The notice given to the tenant in possession in this case, was sufficient, and his failure to appear at the first term of the court thereafter, was laches, and fatal to the present application. Adams on Eject. 209, 210, 216. Ledger vs. Roe, 3 Taunt. 505. Good Title vs. Bad Title, 4 Ib. 820. Jackson vs. Wilson, 3 Johns. Cases, 295. Jackson vs.  [**4]  Demarest, 2 Caine's Rep. 381.

McMahon, for the appellee, insisted, that the record did not present a fit case for an appeal. Where courts have the power to strike out their judgments, an application for that purpose, is to their discretion, and if the application is successful or otherwise, an appeal will not lie. Woods vs. Young, 4 Cranch, 137. Marine Insurance Co. vs. Hodgson, 6 Ib. 217. Welch vs. Mandeville, 7 Ib. 152. Hawkins vs. Jackson, 6 Harr. and Johns. 151, (a) Adams, 225, 240. The appellee has been guilty of no laches which could preclude her from the right of appearing and defending the ejectment. She had no notice of the proceeding, or at least there is no evidence of notice. The court is not at liberty to infer notice from circumstances, when positive proof might have been adduced. Klinefelter's affidavit, or the affidavit of Richards, could certainly have been procured, if notice in fact existed. But suppose she had notice, mere delay is not laches. Dand vs. Barnes, 1 Serg. and Low. 291. Fletcher vs. Wells, 352. The plaintiff's condition in this case, is not worse, but better, than if he had not been in possession; for having enjoyed that possession for nine years,  [**5]  he has been reimbursed for his rent. If the appellee here was to bring her ejectment, she would not be estopped from recovering, by the delay which has taken place, and therefore to prevent circuity of action, the proceedings should be set aside. Hitchings vs. Lewis, 1 Burr. 614. Jackson vs. Demarest, 2 Caines, 381. 3 Johns. Rep. 226. Jackson vs. Elsworth, 20 Ib. 180.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*352]  STEPHEN, J., delivered the opinion of the court.
After making the statement before set forth, he said, the question which presents itself to this court is, whether the court below were warranted in striking out the judgment, which was entered upon the tenants failing to appear, after such a lapse of time, and permitting the proceedings to take place, which were subsequently adopted.
In all our researches, we have not been able to discover a single decision or precedent, which would countenance or sanction such a procedure. Wherever a judgment in ejectment has been stricken out, upon the tenants failing to appear, it has always been one of recent date, and never of such long standing as the one involved in [**6]  the present controversy. 

 [*353]  It has generally been where the period had been too short, for improvements of importance to have been made, in the intermediate time, and where, as the books say, no trial had been lost.
If this case were to be governed by a rule adopted by analogy to that prescribed by the Legislature, for the limitation of appeals, the proceeding would be clearly unwarrantable. But it is not deemed necessary to rely upon that legislative enactment as the basis of our decision, as it may be fully sustained by considerations drawn from other sources. It is true, that actions of ejectment, being creatures of their own, courts of justice will lend a more favorable ear to applications of this nature, than in other cases; but still there are certain limits prescribed by reason, and the policy of the law, which ought not to be transcended. In Jackson vs. Stiles, 1 Caines 505, the court say,--"In ejectment, as it is the creature of the courts, every thing will be done to promote the justice of the case, according to right, and the court will go further to protect the possession, when it can be done without injury to the plaintiff's claim, than it is willing in other [**7]  cases to proceed. As therefore, there was a full knowledge in October last, of an intention to make this application, and the transactions are all of a recent date, we are of opinion that the default entered against the casual ejector, the judgment thereon, and the writ of possession sued out, be set aside, and a writ of restitution issue, on payment of costs." So in Jackson vs. Stiles, 4 Johns. 489, the court also say: "The excuse given by the attorney of the defendant, for not entering into the consent rule in season, is frivolous and inadmissible. But here the tenant swears to merits, and as no trial has been lost, we will not let the possession be changed in an action of ejectment, without an opportunity to the defendant to defend it. It was said in the case of Jackson ex. Dem. Rosekraus vs. Stiles, 1 Caines 503, that the court would set aside a default, to protect the possession of the tenant, in an action of ejectment, when they would not do 

 [*354]  it in any other action. We therefore grant the motion, on payment of costs, and on the tenants entering into the consent rule, and pleading within ten days, so that the cause may be tried at the ensuing [**8]  circuit in Ulster." In Runn. Ejec. 120, the law is stated to be as follows: "If a judgment be signed against the casual ejector, and it be made appear that no declaration was rightly served, the court will set it aside. Also, where a judgment has been obtained against the casual ejector, but no trial lost, the court will, on payment of costs, and the tenants entering into the common rule to confess lease, &c., set aside such judgment as in other actions; and not put the tenant to the charge and hazard of recovering back his possession by another action." So in 1st Richardson's Prac. 506, the law is laid down to be as follows: "Where judgment is obtained against the casual ejector, and a trial is not lost, the court will, on payment of costs, and entering into the common rule for confessing lease, entry and ouster, set aside such judgment, as in other actions, and not put the tenant to the charge and hazard of recovering back his possession by another action." In Spurrier's Lessee vs. Yieldhall, 2 H. & McH. 173, the case was as follows: "An action of ejectment was brought to May term, 1785, and at May term, 1786, a judgment was confessed for possession [**9]  and costs. A writ of habere facias possessionem issued to October term, 1786, and the sheriff returned, "possession delivered." At May term, 1787, it was ruled by the court, "that Rezin Spurrier show cause, this term, why the writ of possession, and judgment entered at May term, 1786, for his lessee, and Benjamin Yieldhall, should not be set aside." And on the 21st of May, in the same term, the following entry was made: "It appearing to the court, by the affidavit of Upton Scott, that at the time of commencing the suit of Rezin Spurrier's lessee, against Benjamin Yieldhall, the said Upton Scott was in possession of nine and a quarter acres of the land, for which the ejectment was brought, and that no copy of the declaration in ejectment was served upon him, 

 [*355]  and that the said Scott claims the said nine and a quarter acres of land, as tenant in fee simple, and a rule having been served on the plaintiff to show cause, &c., and the said Upton Scott now praying that the judgment and execution be set aside, as to the said nine and a quarter acres, and that he be admitted defendant in this cause, as to the said acres: Ordered [**10]  , that the judgment be struck out, as to the said nine and a quarter acres claimed by the said Upton Scott." By all these cases the principle seems to be affirmed, that it is only where the judgment is a recent one, that the court will interfere for the purpose of setting it aside, to enable the tenant to appear and defend his possession. But no case it is believed can be found, where a judgment has been stricken out, after such a lapse of time, and under the circumstances existing in the present case.

JUDGMENT REVERSED, and a writ of Restitution awarded, to restore the possession to the appellant.  

27 of 43 DOCUMENTS 

THOMAS vs. CATHERAL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 23; 1832 Md. LEXIS 5 

December, 1832, Decided 

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

This was an action of Assumpsit. The declaration contained three counts, upon a guaranty by Catheral, the appellee, upon the note set out in the evidence, in conformity with the endorsement thereon. The defendant pleaded non assumpsit, and issue was joined.

1. The plaintiff, at the trial, proved the following promissory note:--"$ 110. Twelve months after date I promise to pay Mary Thomas, one hundred and ten dollars, for value received. Baltimore, October 22d, 1820. John Gorham." He also proved the following endorsement, and signature on the back thereof. "For value received, I undertake and promise to guaranty the payment of the money within mentioned, to the within named Mary Thomas.-- Wm. Catheral."

The signature or endorsement was admitted to be in the defendant's had writing; and that the special guaranty there above written, was written by the plaintiff's counsel after said endorsement, and after the note had been placed in the hands of the plaintiff's counsel to bring suit thereon, and before suit was brought. The defendant then produced as a witness Sarah Gorham, the wife of the drawer of the said note, by whom he proposed [**2]  to prove, that she was sent by her said husband for the purpose of effecting the loan, to secure which the said note was given, and that she did effect the same with the plaintiff for her husband, for twelve months, at the rate of 10 per cent. per annum. That the plaintiff agreed to loan $ 100 at that rate, and to take a note for twelve months, with security therefor, for $ 110, and that witness had, upon such contract, received the $ 100 of the plaintiff, who deducted from that amount a small bill, and paid her the balance. To the competency of which witness the plaintiff objected. And the court, (Hanson, A. J.) sustained the objection, and rejected the witness. The defendant then, in the further progress of the cause, executed to John Gorham, and delivered to the said Sarah Gorham, a release, (which release, however, formed no part of the record transmitted to this court.) The plaintiff still objected to the competency of the witness, because the release could not operate upon the costs alone, which might be recovered against the defendant; and because the paper was not tendered to, or accepted by the release, or by any agent authorized by him to accept the same. But the court overruled [**3]  the objection, and was of opinion that the witness was competent to prove the matters for which she was offered. The plaintiff excepted.

2. The defendant further offered in evidence by the said Sarah Gorham, that in the year of 1820, and she believes in the month of September or October of that year, by the direction of her husband, John Gorham, she called upon the plaintiff to effect for him a loan of $ 100; that the plaintiff agreed to loan that sum to the said John Gorham, provided he would pay her ten dollars for the use of the said sum for one year, and would give a note, with good security, for the amount of such principal and interest; that is to say, a note with good security for $ 110. The witness was directed by the plaintiff to tell her husband that he could have the money on the terms as stated. That the witness went back and told him what the plaintiff had said to her, and he immediately went out of the house. That the morning after this conversation and agreement, the witness received for her husband from the plaintiff, and delivered to him, a part of $ 100, the precise amount she does not remember. That on the day after she had so received the said part, she also [**4]  received the balance of $ 100, from the plaintiff, who had deducted from such balance a small bill due the plaintiff by her husband. The whole amount received by the witness from the plaintiff, including the bill aforesaid, was $ 100. The witness had no knowledge of any money being paid or delivered by the plaintiff to her husband upon the contract, and that she received the money by direction of her husband. The witness further stated, that she had several conversations with the plaintiff after this suit was brought, who called on her about the suit against the defendant. That the plaintiff in such conversations requested her not to state the circumstances in relation to this case, but to try and waiver, as it would injure her the plaintiff; that she ought to waiver and not to state the circumstances, as the money was loaned to her husband. The defendant further offered in evidence by T. S. Schoolfield, the subscribing witness, that he witnessed the signing of the said note by Gorham, and the endorsement by the defendant, which endorsement was in blank. And also offered evidence by Captain Mason, and Eliza Mason his wife, that they were present at a conversation between the plaintiff [**5]  and the witness, Sarah Gorham, when the plaintiff desired the said Sarah to waive it, and not to tell the circumstance so plain, for she had seen her lawyers, and was satisfied, if she did, she would be cast. The defendant's witness, Sarah Gorham, further stated, that she did not see the note, now sued upon, given or endorsed, nor was she present when it was so given or endorsed, nor does she know what occurred between her husband and the plaintiff when the note was given or endorsed by the said Gorham to the plaintiff; but the plaintiff stated to the witness, that she had received the note for the $ 100 from her husband. This conversation was when the money was received. The plaintiff then prayed the opinion of the court, and their direction to the jury:--First. That if they believe that the note in question was made and delivered to the plaintiff by Gorham, and that the witness, Mrs. Gorham, was not present when the said note was delivered, nor does the witness know what consideration was given at the time the note was made, nor does she know whether any subsequent consideration was paid to her husband therefor, or not; nor what consideration passed to the defendant for the guaranty [**6]  in question, so as to connect the said instrument, and the contract made at the time the note was given, with the previous conversations the day before, between the plaintiff and the witness, that then all such previous conversations ought to be laid out of view by the jury. Secondly. That if the jury believe, that there is no evidence before them that any usurious agreement was actually made between Gorham and the plaintiff at the time the said note was made and delivered by Gorham to the plaintiff, and that no usury was committed between the plaintiff and the defendant on the contract of guarantee, then the plaintiff was entitled to recover, notwithstanding the previous conversations between Mrs. Gorham and the plaintiff, respecting a loan for usurious interest. Which directions, and each of them, the court refused to give to the jury. The plaintiff excepted; and the verdict and judgment being against her, she appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action founded upon the special guaranty of a promissory note, brought by the payee of the note against the guarantor, the wife of the maker of the note is not a competent witness to prove the note void for usury in its origin, without a sufficient release.

Where a witness was properly rejected by the County Court as incompetent without a release, and a release executed and tendered at the bar, objected to as insufficient, was held sufficient, and the witness admitted to testify, this court upon appeal reversed the judgment, because the release did not appear in the record, and therefore, they could not hold that the first objection had been removed.

Usury is a question of fact for the determination of a jury. A note made and endorsed in execution of a previous usurious agreement is tainted with usury. 

COUNSEL:
Johnson, for the appellant.

There was no argument for the appellee.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*27]   [**7]  BUCHANAN, Ch. J., delivered the opinion of the court.
Without a sufficient release it is superfluous to say, that Sarah Gorham, the wife of the maker of the note, was not a competent witness; and the paper stated to have been executed to Gorham as a release, and delivered to his wife, upon which she was admitted as a witness, not appearing in the record, we have nothing before us to show, that the objection to her competency was removed, and are therefore constrained to say, that for any thing appearing in the case, her testimony should not have been received.
As to the second exception, whether in point of fact, usury was committed or not, was a question for the jury, upon the whole of the evidence submitted to them; and whether there was an usurious agreement or not, entered into between the parties, at the time of making the note, or of the endorsement on the back of it, by the defendant, yet if the note was made and endorsed, in execution of a previous usurious agreement, it was tainted with usury; and that was a matter proper to be left to the jury. And there being no evidence in the record opposed to that of Sarah Gorham, the court did right in refusing both of the [**8]  prayers contained in that exception, neither of them having any connection with the question of her competency. But as the court did wrong in admitting her testimony, which formed the subject of the first exception, the judgment must be reversed.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

28 of 43 DOCUMENTS 

STEWART, Trustee of STONE, vs. STONE, et ux. AND WHITE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 510; 1832 Md. LEXIS 3 

June, 1832, Decided 

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

On the 24th January, 1829, a bill was filed by the appellant, David Stewart, as permanent trustee of Samuel Stone, against the appellees, Samuel Stone and Barbara his wife, and Jacob White.

The bill stated, that Stone became indebted to one Chas. Salmon, in the year 1826, for goods, &c. sold him by Salmon, to the amount of $ 490 53, for which he gave his promissory note, payable in six months, from the 3d May, in the year aforesaid. That said note not being paid at maturity, suit was instituted upon it, and judgment obtained in September, 1828. That a ca. sa. issued thereon, which was served on the defendant, on the 3d January, 1829, and on the 6th of the same month, the said defendant applied for, and obtained a personal discharge, under the insolvent laws of the State. That on the 14th of the same month, complainant was duly appointed his permanent trustee, and gave his bond as such, which was duly approved by the Commissioners of Insolvent Debtors for the city and county of Baltimore. That the insolvent returned no property on his schedule, at the time of his application. The bill then charges, that at the time Stone became indebted [**2]  to Salmon, as aforesaid, he (Stone) was in possession of a considerable estate, both real and personal, and evidences of debt amounting in the whole, to not less than $ 3000. That for the purpose of defrauding his creditors, he, on the 27th August, 1828, united with his wife, in a conveyance of the whole of the said estate to Jacob White, in trust for his said wife, as will appear by reference to the conveyance, a copy of which the complainant exhibits with his bill. And he charges, that said conveyance was made by Stone, under an expectation of becoming an insolvent debtor, and for the purpose of giving an undue and improper preference to the wife, and is therefore absolutely null and void, and the property meant to be conveyed, is vested in complainant as trustee of the insolvent. The bill then prays, that said deed may be declared void, and the property be delivered to complainant, for the benefit of the insolvent's creditors, and for general relief.

The answer of Barbara Stone, admitted that she had been informed of certain dealings, and mercantile transactions, between her husband, Samuel Stone and Charles Salmon, though she had no personal knowledge on the subject. She also [**3]  admitted that she had been informed, "that the said Samuel Stone hath made application for the benefit of the insolvent laws of Maryland, and that the complainant hath been appointed his permanent trustee for the benefit of his creditors." The answer then goes on, to deny the fraud charged by the bill, and asserts, that the deed which it seeks to vacate, was made in pursuance of an antenuptial contract, (exhibited with the answer) entered into between her and her present husband, Stone, on the 2d February, 1826, five days before their intermarriage.

The answer of Samuel Stone the insolvent, admits, that in the spring of 1826, and subsequent to his intermarriage with Barbara, he became indebted to Charles Salmon, in the manner, and to the amount stated in the bill, for which he gave his note as charged. That suit was instituted thereupon, judgment recovered, this respondent arrested, that he petitioned for, and obtained the benefit of the insolvent laws, as likewise alleged; that complainant was appointed his permanent trustee, and gave bond as such trustee, which has been approved by the Commissioners of Insolvent Debtors for the city and county of Baltimore. After denying the [**4]  fraud, this answer also sets up the ante-nuptial contract, relied on, and exhibited with the answer of Barbara Stone, and alleges, that the deed sought to be annulled, was made in pursuance thereof, and not for the purpose of defrauding his creditors.

The answer of Jacob White, the other defendant, is not material; and the proof taken under a commission related merely to conversations with the insolvent, before and after he petitioned, in reference to the claim of another creditor. There was no proof that complainant had given a bond with security, as trustee.

BLAND, chancellor, (at March Term, 1831,) dismissed the bill with costs.

From this decree the complainant appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

It is an established principle of evidence, that the answer of one defendant cannot be received in evidence against a co-defendant. If the complainant wishes to establish a fact, by the evidence of a co-defendant, he may be examined as a witness on interrogatories, which will afford the other defendant an opportunity to cross examine him.

In a suit in Chancery, by the permanent trustee of an insolvent debtor, it is necessary to show, that the complainant gave bond with surety in that character before filing his bill, and although the allegation in the bill, to that effect, was admitted in an answer by one defendant, yet as respects another defendant, whose answer was silent in relation to that fact, proof of the bond with surety was held requisite.

Where the Court of Appeals is of opinion that a bill dismissed generally by the chancellor, should have been dismissed without prejudice, the practice is to reverse the decree of the chancellor, and pass a new decree. 

COUNSEL:
Boyle, and Gill, for the appellant, referred to the act of 1805, ch. 110, sec. 9. 1807, ch. 53. 1812, ch. 77, sec. 1 1816, ch. 221.

Scott, for the appellee, cited, Winchester vs. The Union Bank of Maryland, 2 Gill and Johns. 73.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*513]  MARTIN, J., delivered the opinion of the court.
We think the chancellor was correct in dismissing the bill in this case. In forming this [**5]  opinion, this court have not taken into consideration, what is deemed the merits of the case, the deed, the ante-nuptial contract, the fraud, and the undue preference, &c. We think that the complainant has not shewed himself entitled, to bring those questions before the chancellor. He has alleged in the bill, that he is the permanent trustee of Samuel Stone, and as such, has given the bond required by law. To clothe him with the authority he claims in his representative character, this allegation ought to have been admitted by the defendants, or established by other evidence. The record contains no other evidence upon this subject. The answer of Samuel Stone admits that complainant was appointed his permanent trustee, and gave bond as such trustee, &c.; but this answer 

 [*514]  cannot be used against Barbara Stone, the party interested in the deed. It is an established principle of evidence, that the answer of one defendant cannot be received in evidence against a co-defendant. If the complainant wishes to establish a fact by the evidence of a co-defendant, he may be examined as a witness on interrogatories, which will afford the defendant an opportunity to cross-examine [**6]  him. Barbara Stone, in her answer, says, she has been informed, that Samuel Stone hath made application for the benefit of the insolvent laws of Maryland, and that the complainant hath been appointed his permanent trustee, for the benefit of his creditors. If this is deemed an admission that the complainant was permanent trustee, yet she is entirely silent as to the bond. There is then, no legal testimony in this record, to shew that complainant ever did give a bond, with security, as required of him by law, as the permanent trustee of Samuel Stone: that this was necessary, before he went into chancery, see the case of Winchester, trustee of Williams vs. The Union Bank of Maryland, 2 G. & J. 73, where the court say, the different insolvent laws of the State constitute one general system, and must be construed together; and so construed, require a bond, with security, to be given before a trustee can act as such; without which, he cannot be invested with the character and rights of a trustee.
Under this view of the case, we think the bill ought to have been dismissed, but without prejudice, &c. The complainant ought not to be precluded,  [**7]  if he has equity, from again presenting himself before the court; and to afford him that opportunity, we think it necessary to reverse the decree, but without costs, and to pass a new decree to dismiss the bill, without prejudice, &c.
DECREE REVERSED.  

29 of 43 DOCUMENTS 

ELIZABETH CLAGETT, et al. vs. CHARLES SALMON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 314; 1833 Md. LEXIS 11 

December, 1833, Decided 

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

A statement of this case was given by the Judge who delivered the opinion of this court, as follows, viz:

The bill states that Thomas Clagett, one of the defendants, having a short time previous to the 22d of September, 1827, engaged in business in the city of Baltimore, as a merchant, the complainant agreed and undertook to give credit to, and to become surety and endorser on notes drawn by said Clagett, in the prosecution of his said business to the amount of $ 10,000; and the said Thomas Clagett, and his mother, and several of his brothers, with a view to indemnify and save him harmless, executed in due form of law, a deed of mortgage, bearing date on the 22d of September, in the year aforesaid, whereby they conveyed to him all their right and title, in and to a tract of land therein mentioned; and also, all their right, title and interest, in and to the personal estate of which William Clagett died possessed, consisting of negroes and other personal property, then, and still in the possession of two of the mortgagors. The bill further charges, that in pursuance of said agreement, he did give credit to said Thomas Clagett for goods sold,  [**2]  and money loaned, and did endorse notes drawn by him, to the amount of $ 16,488 34. That William Clagett died possessed of a large personal estate; that Elizabeth Clagett administered thereon, made a final settlement of said estate, and held in her hands, subject to distribution, a considerable amount of property, which had not been paid to the different representatives, although distribution had been made by the authority of the Orphans Court; but that she and Edmund Clagett, one of the defendants, had always been in possession of said property, using and employing the same, for the common benefit of themselves and the other representatives of the said William Clagett. The complainant states that he does not know the personal property embraced by the deed of mortgage, as there was no schedule or specification thereof ever made, and that he has reason to believe, and therefore charges that the defendants contemplate and design to sell and dispose of part or the whole of said property, with a view of defeating his lien on the same. That a decree for the sale of said property, according to the terms of the mortgage, cannot be had until after the 1st of October, 1830, and that he is apprehensive [**3]  the defendants will, before that period, sell, dispose of, conceal or remove the whole or a part of said personal property, and thus jeopard a part of his claim against said Thomas Clagett. The bill further charges that certain goods, wares and merchandize, and debts, had been transferred by Thomas Clagett, and certain persons acting as his trustees to complainant, the proceeds of which property he was to apply to the payment of the debts of said Clagett due to divers individuals, and his own claim so far as it would go towards the same, and states that said property will be wholly inadequate for such purpose, and that a very large balance will be still due to him. The bill then prays for a discovery of the personal property intended to be conveyed by the mortgage, and an injunction prohibiting and restraining the defendants "from selling, disposing of, concealing or removing the whole, or any part of the said personal property," until he could, according to the provisions of the said deed of mortgage, pray for a foreclosure and sale of the property included therein. The deed of mortgage referred to in the bill contains the following recital: "Whereas, the said Thomas Clagett, one [**4]  of the parties of the first part of this deed, hath lately commenced, and intends pursuing the business of a merchant in the city of Baltimore; and whereas, the said Charles Salmon hath agreed to give credit to, and to become surety and endorser on notes drawn by the said Thomas Clagett, in the prosecution of his said business, to the amount of $ 10,000 current money, and the said Elizabeth Clagett, Edmund Clagett, Samuel A. Clagett, Richard H. Clagett, John W. Clagett, and Thomas Clagett, to indemnify and save harmless the said Charles Salmon for any advances he may hereafter make, or may have heretofore made for, or to the said Thomas Clagett; and also, for any endorsements which the said Charles Salmon may have heretofore, or shall hereafter execute for, or on account of the said Thomas Clagett, have agreed to execute and deliver these presents." The deed of mortgage then conveys all the right, title, interest and estate of the mortgagors, in and to some real estate therein mentioned, and also, all the personal estate of which the said William Clagett died possessed, consisting of certain negroes, horses and cattle, then in the possession of Elizabeth Clagett and Edmund Clagett,  [**5]  with a proviso, that if the said Thomas Clagett "shall well and truly pay, re-pay, and satisfy the said Charles Salmon for all advances of goods, or loans of money which the said Charles Salmon may have heretofore made, or shall, before the first of October, 1830, make to the said Thomas Clagett; and shall also indemnify and save harmless the said Charles Salmon, and against all endorsements which the said Charles Salmon may execute before the first day of October, in the year 1830; and shall also indemnify the said Charles Salmon, from and against all bills, bonds or notes which he shall sign or seal, as security for the said Thomas Clagett, before the first day of October, 1830, the said advances, loans, endorsements and other liabilities, which the said Charles Salmon shall incur or make, on account of the said Thomas Clagett, not to exceed at any one time the sum of $ 10,000 current money, then and from thenceforth these presents, and every matter and thing herein contained, to the contrary in any wise notwithstanding." On the 19th of May, 1828, Thomas Clagett finding himself in failing circumstances, and unable to sustain his credit, conveyed all and singular his stock of goods,  [**6]  wares and merchandize, effects and property of every description belonging to him, as therein specified, and all debts, sums of money and claims due, or owing, and payable or belonging to him, to Henry Beadle and Daniel Cobb, in trust, for the benefit of the creditors of the said Thomas Clagett, and on the 26th of May, 1828, the said trustees, Thomas Clagett and the appellee, entered into the following agreement:

"We, the undersigned, acting as the representatives of the creditors of Thomas Clagett of the one part, and Charles Salmon of the other part, have agreed and do hereby agree to the following arrangement, and bind our respective principals to comply with and fulfil the same, viz: 1. A correct inventory of the goods shall be taken by two persons appointed by each party, at the cost, or such prices as the same have been invoiced at by the said Thomas Clagett, provided they have not been set down at more than the actual cost of the same. 2. The books, notes, and all other evidences of debt, shall be forthwith put into the hands of Charles Salmon, who shall use all due diligence in the collection of the same. All the personal and real property of the said Thomas Clagett, (excepting [**7]  clothing and watch) shall in like manner, and in good faith be put in the hands of the said Charles Salmon, and valued by disinterested persons, and received by said Salmon at such valuation. 3. The said Salmon shall receive the goods when invoiced as above, at the gross amount of the same, together with all the moneys received on account of debts, notes, book accounts, and place the same to the credit of the estate. 4. The said Salmon shall be responsible for the legal debts of said Clagett, to the amount of $ 39,500, including his own claim and borrowed money, and retain a mortgage which he now holds, to indemnify him, for any deficiencies which may exist after collecting the debts, and taking the goods at their invoiced prices, if any deficiency should then appear. 5. One gentleman shall be appointed by each party to examine every debt, and determine whether it shall be classed as borrowed money, or other legal debts, and should they disagree they shall have power to appoint an umpire, whose decision shall be binding. 6. The said Salmon shall give his notes severally to the creditors, at nine months without interest, or fifteen months, with interest added after nine months, at his [**8]  discretion, for such portion as they shall decide to be legal debts, and his notes at ninety days, with interest, for such portion as they shall class as borrowed money. 7. Should the effects of Thomas Clagett not realize the aforesaid sum of $ 39,500, the said Salmon shall not foreclose the mortgage he now holds, until after the expiration of two years from this date. 8. After this agreement has been executed by the respective parties to it, it is understood that responsibilities to and from Thomas Clagett shall be annulled so far as the persons we severally represent, may be concerned; also to exonerate the family of Thomas Clagett from the payment of such notes as may be signed or endorsed by them, and held by said Salmon, not interfering with, or invalidating their liability in the mortgage held by said Salmon. It is expressly understood that nothing contained in this agreement shall in any manner affect the mortgage heretofore given by Thomas Clagett and his family, to indemnify said Salmon against certain risks and losses, excepting so far as to delay foreclosing said mortgage for two years from the date hereof."

In execution of this agreement, the appellee obtained possession [**9]  of goods and effects of considerable value, according to the proof in the cause.

The answers deny that the deed of mortgage conveyed any right or title to any part of the personal estate. They insist that Richard H. Clagett was under age at the date of the deed, and that the agreement between the trustees, Thomas Clagett and Charles Salmon, released the mortgagors from any liability to the complainant, and that there are other representatives of William Clagett, whose rights are impaired by the injunction. A general replication was entered, and commission issued. The cause was set down for hearing, and the Chancellor decreed "that the said defendants be, and they are hereby restrained and enjoined, as prayed by the said bill of complaint, from selling, concealing or removing beyond the jurisdiction of this court, the negroes, &c. in the mortgage mentioned, or any other of the said mortgaged property in the possession of the said defendants, or any of them, at the time the said injunction heretofore granted, was served on them, until the further order of this court on any bill which may be filed by the said plaintiff to foreclose the said mortgage, or any bill that may be filed [**10]  by the said defendants to redeem the said property. And as to the said Richard H. Clagett, the injunction was thereby dissolved, and the bill, as to him, dismissed with costs. And it was further decreed, that the defendants, other than the said Richard H. Clagett pay all the costs of this suit, not heretofore ordered to be paid by the plaintiff."

BLAND, Chancellor, (December term, 1830,) delivered the following opinion:

The proofs substantially sustain the allegations of the bill, and leaving none of the facts of doubtful credibility, there is nothing to be determined but the principles of equity, properly arising out of those established facts. The defendants contend that the mortgage is void upon its face, to the extent of the personalty at least, as having been made by one who is incompetent so to dispose of it; and it is also a nullity against one of the grantors, who was an infant when he signed it; and against all of them, because it has not the requisite solemnity of such a contract, that of having been recorded in time; and further, that there is an implied contract attendant upon this mortgage, which imposes obligations upon Salmon in favor of the sureties of Thomas [**11]  Clagett, which Salmon has in various ways so disregarded as to have released those sureties from the incumbrance of the mortgage. In answer to which it is denied that any act of Salmon's, as here shown, can be considered as having that operation; and moreover, it is urged that all the obligations of the implied contract have been carefully and effectually preserved for the benefit of these sureties, so that they can have no ground to complain of any of Salmon's acts, whatever they may have been. Then passing from the subject of the suit to the suit itself, it is objected, that the plaintiff can have no relief in this case, because the suit has been instituted too soon; and because to perpetuate the injunction merely, would be to lay the defendants subject to the caprice of the plaintiff, without leaving them any means of extricating themselves. These are the matters to be considered.

In taking the position that the mortgage is absolutely void, because the grantor as administratrix had no power to make such a deed, I understood the defendants as making no such objection to it, as a conveyance of the realty therein mentioned; and as also assuming the ground, that unless it can avail [**12]  the plaintiff as a deed proceeding from the administratrix, who alone, among the grantors, had power thus to sell or pledge the personalty, it must fail as to that altogether. I shall, therefore, as regards this position, consider this deed as embracing nothing more than the property therein specified, as the assets which Elizabeth Clagett held as administratrix of the late William Clagett. An executor or administrator is in equity regarded as a trustee, but then in equity as well as at law, an administrator is considered in general, as the absolute owner of the assets of the deceased, whether they be legal or equitable, or choses in action. The exercise of the powers of unqualified ownership, to a certain extent, is indispensably necessary to enable him to execute his trust, and to discharge his duty to advantage; and also to prevent the general inconvenience of implicating and entangling third persons in inquiries, as to the application he may propose to make of the money produced by the conversion of the assets. A fair purchaser for a valuable consideration, is in no way bound to see to the application of the purchase money by an executor. He can have no means of knowing the debts [**13]  of the deceased, and is therefore absolved from all inquiry respecting them. Upon those general principles, not even a creditor of the deceased is permitted to follow the assets so aliened; for the demand of a creditor is only a personal demand against the executor, in respect of the assets come to his hands, but no lien on the assets; and a specific or residuary legatee can stand upon no higher ground in this respect than a creditor. 1 Atk. 463. 14 Ves. 359. 17 Ves. 154. 4 Mad. 357. The only qualification of this general rule is, where the transaction is in some way tainted by fraud. Every person who acquires personal assets by a breach of trust, or devastavit in the executor or administrator, is responsible to those entitled under the will, or as creditors, or next of kin, if he be a party to the breach of trust. What will amount to a fraud of this kind, must depend upon the circumstances of the case. It is said that, generally speaking, he does not become a party to the breach of trust by buying, or receiving as a pledge for money advanced to the executor at the time, any part of the personal assets, whether specifically given by the will or [**14]  otherwise, because this sale or pledge is held to be prima facie consistent with the duty of an executor. Generally speaking, he does become a party to the breach of trust, by buying or receiving in pledge any part of the personal assets, not for money advanced at the time, but in satisfaction of his private debt, because this sale or pledge is prima facie inconsistent with the duty of an executor. 4 Mad. 357.

In this case, the administratrix has not sold or pledged the assets of her intestate, for money advanced to her by Salmon; but she has mortgaged them to indemnify Salmon for any loss he may sustain, in the manner described, from Thomas Clagett. Salmon has advanced no money to this administratrix, which she might or might not have applied to the uses, and for the benefit of the estate of her intestate. On the contrary, this mortgage is, on the part of the administratrix, a voluntary pledge of the assets of her intestate, to insure the payment of the debt of another. It is upon the face of it, and in terms, an application of the assets, in a manner wholly inconsistent with her duty as administratrix, and Salmon, as the grantee, is a party to this breach of trust. This mortgage [**15]  must, therefore, be considered as at least prima facie in equity, as a fraudulent application of the assets, as against all those who have a claim upon them as creditors, or next of kin of the intestate.

But there is here no creditor, nor any one of the next of kin of the deceased, who makes any objection to this mortgage, or asks to have it set aside on the ground of fraud to let in his claim. There is no such person now here attempting to follow these assets for any such purpose--and if there be any one who has an interest in the personal property so pledged, independently of, and superior to those bound by, or who claim under this deed, they are not now before this court; and it is very clear, that none of these defendants can be suffered to impugn their own deed for the benefit of others, not parties to this suit. But administration was granted to this defendant, Elizabeth, so long ago as the year 1816, and she executed this mortgage on the 22d September, 1827, then having this property in her possession. It is not intimated that there are any outstanding debts due from the intestate; and if these, his children, who are here as defendants, had any claim as distributees, they [**16]  have made none, and therefore must be presumed to have been satisfied. But supposing they had not received any satisfaction for their respective distributive shares, they have, by this their own deed, completely bound up and mortgaged the whole of their interest, whatever it may be, to its utmost extent. 17 Ves. 170.

Richard H. Clagett, by his answer, relies on the fact of his having been an infant at the time he signed the mortgage, as an ample defence for himself. The fact of his infancy is fully established by the proof. He, however, asks for himself no more than to be discharged from the obligatory force of the deed, and to have it treated as a nullity so far as it is made the foundation of any claim against him. But he makes no claim of his distributive share of the intestate's estate in any form. He does not allege that he has not been satisfied by this administratrix to the full amount of his distributive share. So far from making any such assertion, of his own individual rights in opposition to this deed, he plants his defence against it, apart from the allegation of his infancy, in all respects upon the same ground taken by all the other defendants; and consequently,  [**17]  although he cannot, because of his infancy, be bound by the mortgage as his deed, yet, having by his own answer failed to assert his right when thus implicated and called on to do so, he must be considered as having waived all objection to this mortgage, on the ground of its having made any improper disposition of his interest, inconsistent with the office and duty of the administratrix. Hence, as Richard H. Clagett for this reason, can on the one hand, claim no protection of his interests in this suit, so on the other, because of his infancy there can be no decree against him. I shall therefore dismiss the bill as to him.

It has been urged, however, that although this administratrix might have had sufficient power so to dispose of the assets, or that the questionable disposition thus made of them had been fully affirmed by the distributees; yet that the instrument by which it was proposed to be effected, not having been recorded, is in that respect deficient in one of those solemnities necessary to constitute a valid mortgage. By the common law, to make a valid deed, certain forms and ceremonies are indispensably necessary in that way to manifest the deliberate will of the contracting [**18]  parties; and it is admitted that this mortgage has all the common law requisites of a binding deed. But the legislative enactments of Maryland, which require deeds to be recorded, like those of England, requiring enrollment, are universally admitted to have been intended to preserve the evidence of the contract, and to prevent the practice of fraud upon creditors and purchasers. The object was to furnish the means of notice, and a protection to innocent third persons, not parties to the contract. It never has been held, that those laws altered any principle of the common law, or required any thing in addition to the common law solemnities, as a necessary constituent of a deed, to secure the payment of moneys, as between the parties to it. Hence, a deed of this kind, as between the parties themselves, has always been deemed as valid and effectual, without recording, as with it. And as to creditors and purchasers, if they have by any other means obtained that notice, which it was the design of recording to give, even they are not allowed to object to the validity and operation of the deed on that account. But in no instance has any of the immediate parties to such a deed ever been suffered [**19]  to object, that it should not be enforced, because it had not been recorded in time; such an objection can only come from a creditor, a purchaser, or some innocent third person, whose interests are affected by the deed. Here there is no such third person before the court; the objection is made by some of the parties to the mortgage itself, which cannot be permitted; since as to them, the deed is valid by the common law, and in no way affected, as a security for money, by the acts of assembly requiring such instrument to be recorded. There is then nothing in this position taken against the validity of the mortgage. 2 Inst. 674. 1 Lord Raymond, 388. 1 Salk. 199. 1 Cran. 240. 6 Harr. and Johns. 63.

It appears that Charles Salmon had agreed to lend his credit to Thomas Clagett, by selling him goods, to be paid for at some future day, by lending him money, and by becoming his surety in the way of lending or endorsing notes. Hence, in respect to that agreement, they stand towards each other simply, as creditor and debtor. But for the purpose of securing Salmon against any loss he might sustain by the credit so given, Thomas Clagett with Elizabeth Clagett and others, mortgaged [**20]  their property to Salmon; and consequently, to the extent of Salmon's claim for indemnity under the mortgage, he must be regarded as the creditor; Thomas Clagett, as the principal debtor, and Elizabeth Clagett, with the other mortgagors, as his sureties. This is the situation in which the parties have been placed by the mortgage itself; and this suit brings them here in the same relation towards each other. The dealings between Salmon and Thomas Clagett are no otherwise of any importance in this case, than as showing the consideration on which Salmon's claim is founded, and that it is of some amount; or how far any of Salmon's conduct, in relation to those dealings, may have impaired that implied contract, in virtue of which the sureties of Thomas Clagett have a right to have the impending loss averted from them, by a bill quia timet; or to take the place of Salmon in order to obtain reimbursement.

It is universally admitted, wherever the relation of principal debtor and surety subsists, that if the surety pays the whole debt, he has a right to be put into the place of the creditor as to all his remedies for the recovery of the debt. This right of subrogation is recognized in [**21]  courts of common law, as founded upon an implied contract; and in chancery as resting upon such a contract, or as an equity properly belonging to the case, or as based upon a principle of natural justice, which springs into existence immediately that the debt falls due, and the surety becomes liable to be called on for payment. This implied contract binds the creditor, if required by bill in equity at the instance of the surety, to sue immediately for the recovery of his debt; or if the debt has been wholly paid by the surety, to transfer to him all his securities, as well those which he held at the time the surety became bound, as those which he may have since acquired, even without the privity or knowledge of the surety, such as a judgment recovered against the principal, or a mortgage by way of collateral security. The surety, in such case has a right to an assignment of all the creditor's securities, to enable him to proceed immediately in the same manner, as the creditor might have done to obtain satisfaction or reimbursement. And therefore, if the creditor being competent to contract, has by express agreement enlarged the day of payment; or has by his acts increased the peril [**22]  of the surety; or has parted with any of his securities; or has in any other manner altered or impaired the obligation of the implied contract, (which for the protection of the surety is always associated with the express contract as its inseparable incident,) then the surety is discharged; upon the ground that all such acts are against the faith of the implied contract, by virtue of which the surety had precisely the same right the creditor had, and must be allowed to take his place in all respects; and also upon the ground that the creditor is a trustee of his security; that is, the bond, judgment, execution, or the like for all parties interested in it, or who may ultimately resort to it for relief. 1 Cha. Cas. 70. 1 Vern. 190. 2 Vern. 608. 2 Bro. C. C. 579. 3 Bro. C. C. 1. 2 Ves. Jr. 540. 10 Ves. 420. 11 Ves. 22. 14 Ves. 164. 3 Merv. 272, 570. 2 Swan. 187. Selw. N. P. 86, no. 27. 1 Bos. and Pul. 652. 2 Ib. 61. 2 Rand. 529. Gilm. 149. 6 Mun. 6. 2 De Saus. 230, 389. 1 McCord, 116, 297. 5 Harr. and Johns. 242. 7 Ib. 35. 2 Harr. and Gill, 90.  [**23]  3 Wheat. 520. 1 Poth. Obl. 406.

It is believed, that the obligation of private contracts has been regarded by all civilized people, as of the highest and most inviolable sanctity; and according to our fundamental law, there is no power in the land by which the obligation of such contracts can be in any manner lessened or impaired. Here, and as to this point, it is not pretended that the mortgage itself has been, or can be in any way, stripped of a single atom of its own proper, legal or equitable obligatory force. But those defendants who stand here as sureties, referring to that implied contract, the incident of the mortgage, to the full benefit to which they are entitled, urge that its obligation has been materially impaired to their prejudice; and therefore, that they are discharged. They allege, that its obligation has been altered, diminished or destroyed, by the circumstance of Salmon having increased their peril, by giving to Thomas Clagett credit for an amount greater than that specified in the deed; and by having by an express agreement with Thomas Clagett, after the debt became due, enlarged the time of payment, and also by his having released a security [**24]  he had procured, by means of which he might, for aught that appears, have obtained a complete satisfaction of his debt.

On behalf of the sureties of Thomas Clagett it was contended, that their guaranty of indemnity was in all respects a limited one, by which they not only intended that they themselves should not be responsible beyond a specified amount; but that Thomas Clagett should not be credited for more than that amount by Salmon; because by so involving him beyond the specified sum, his situation would be rendered more precarious, and they would thereby be more likely to be damnified. If that was the intention of these sureties, they certainly have not so distinctly expressed themselves by this mortgage. That deed evidently purports to be a continuing guaranty, not merely until the sureties should think proper to put an end to it, by giving notice to Salmon that it should be no longer continued, but its duration forms an express part of the contract itself; it was to endure until the 1st of October, 1830, and no longer; and it was not to exceed in amount the sum of $ 10,000; thus limiting the extent of the liability of the sureties, without making the slightest allusion [**25]  to the extent of the credit which Thomas Clagett might obtain from Salmon, or any one else; or to the scope of his business; or to the perils and risks in which he might be involved by the wide range of his commercial concerns. The sense, and substance of this mortgage, considered as a guaranty, comes to this, that these sureties thereby undertook to sustain the credit of Thomas Clagett, to an amount not exceeding $ 10,000, continually, from that time until the first of October, 1830. It is therefore of no importance, as regards this mortgage, what may be the amount of the debt due from Thomas Clagett to Salmon beyond that sum; since the mortgage covers no more than $ 10,000; nor is it of any consequence when, within the specified period of time, the credit was given by Salmon to Thomas Clagett, so it was given in the manner prescribed in the deed. The proofs clearly establish the fact, that the liability from Thomas Clagett to Salmon, was incurred in the mode specified by the deed; and therefore, I am opinion, there is no foundation for this objection. 3 Wheat. 148. 12 East. 227.

It has also been insisted that the credit has been extended, and the time of payment [**26]  enlarged by the agreement of the 26th May, 1828. Whether that can be so considered must depend upon what shall be deemed the true meaning of the mortgage. I take the sense of that contract to be, that Salmon, upon the faith of the property so pledged to him, agreed to lend his credit to Thomas Clagett during a certain time, and to a specified amount. The sole object of that deed was to obtain for Thomas Clagett such a credit; but if the mortgage might have been foreclosed at any time, to enforce payment for any parcel of goods sold, and of every sum of money lent by Salmon to Thomas Clagett, as it became due, the very object of the deed might have been defeated. He would not have obtained such a credit as could have been used by him, as a capital, with which, to prosecute his business. The mortgaged property might have been sold, or the sureties forced at once to pay, when by postponing the payment, under the assurance of the guaranty, until the first of October, 1830, Thomas Clagett's business, even if it should fail, might be so wound up as to produce no embarrassment, nor result in loss to any one. The limitation of the amount of the credit to $ 10,000, also shews it to have been [**27]  the true meaning of the parties, that Salmon, on his part, undertook, and agreed to give credit to Thomas Clagett, to that amount, in the manner described, until the first of October, 1830.

Much stress has been laid on the fact, that the notes given by Thomas Clagett, and some others of the grantors fell due long before the first of October, 1830; and that Salmon being then liable to pay, he must then be considered as entitled to indemnity, by a foreclosure of the mortgage. 4 Desau. 45. But that very circumstance shows, that it could not have been their intention to subject themselves to a foreclosure of their mortgage immediately, that those notes fell due; because the express object in so pledging their property was to sustain Thomas Clagett's credit, to a period far beyond that time. I am, therefore, of opinion, that the mortgage could not have been foreclosed before the first of October, 1830, and consequently, the stipulation in the agreement, that it should not be foreclosed until two years after the 26th of May, 1828, cannot be considered as an enlargement of the time of payment, to the prejudice of these sureties, who could not be called on for payment before the mortgage [**28]  credit had expired.

The defendants have further insisted, that the deed of the 17th May, 1828, by which Thomas Clagett made an assignment of his goods for the benefit of his creditors, gave to Salmon security for the payment of the debt covered by the mortgage, which he was bound to make available to its full extent; or to hold it for the benefit of the sureties of Thomas Clagett. But that deed could not in any way be considered as a security held by Salmon. His debtor Thomas Clagett, placed certain funds by its means in the hands of trustees for the benefit of his creditors generally, which might have been so applied or not; but nothing was thereby put in the hands of Salmon, or placed exclusively within his power or control. The agreement of the 26th of the same month, it is true, did give Salmon an additional security for his debt; but he alleges, and it is in proof, that he still holds that security, and he has used all due diligence to make it as productive as possible. There is, therefore, no foundation for this objection, upon which these securities claim to be discharged.

By the agreement of the 26th May, 1828, it is stipulated that after it had been executed by the [**29]  respective parties, that all responsibilities to and from Thomas Clagett shall be annulled, so far as the persons represented by those who signed it, might be concerned. The responsibilities to and from Thomas Clagett here referred to, were the notes of Thomas Clagett, and his contracts for the payment of money held by Salmon, and his other creditors. It is, however, only those responsibilities or securities, held by Salmon alone, and which he annulled, that can in any way be considered as prejudicial to these sureties. The whole instrument of the 26th May, 1828, must be taken together, and so taken, it appears that Salmon himself discharged Thomas Clagett from no responsibility whatever; because it is expressly stipulated that Salmon shall retain the mortgage to indemnify him for any deficiency which might exist, after the application of the funds then put into his hands; in other words, that after so obtaining a partial payment, Thomas Clagett should be held bound as his debtor for the balance. So far then, there is nothing like a discharge of any security held by Salmon. But Salmon, it is said, held the notes of Thomas Clagett, and it is true he did; but they were notes signed or [**30]  endorsed by the family of Thomas Clagett, who are these very mortgagors, and sureties; and the family of Thomas Clagett were expressly exonerated from them only.

Those notes were securities upon which they could not sue, nor derive any benefit from; because they were their own; and an assignment of them according to the requisitions of the implied contract, would have amounted precisely to that, which this agreement declared, a complete exoneration of their liability, and nothing more. It also appears that Salmon had lent his notes to Thomas Clagett, which Salmon had taken up at maturity; but these were responsibilities or securities, upon which Thomas Clagett could not have been sued upon an assignment in any form from Salmon. The securities which a surety has a right to have transferred to him, must be such as would have enabled the creditors to obtain satisfaction of his debts from funds, or from persons, other than the surety himself; but in this case, there were no such securities held by Salmon. It follows therefore, that this objection also of the defendants must fail.

But the plaintiff contended, that even if the mortgage might have been foreclosed, at any time after [**31]  he became liable on his notes lent to Thomas Clagett; or after Thomas Clagett's notes, or the money he lent him became due; and even if the agreement of the 26th May, 1828, should be considered as an express enlargement of the time of payment; yet, that these sureties cannot be discharged; because all the remedies have been reserved. It is laid down that a composition with, or giving time to the principal debtor, with a reservation of the creditor's remedies, will not discharge the surety. The giving of time to the principal debtor, with a reservation of the remedies, has in many cases the appearance of absurdity; because, when distinctly understood, it seems to be almost a flat contradiction in terms. Such a reservation of remedies, in order to hold the surety bound, must amount to this, that the creditor agrees to give time to the debtor; and yet that they both agree, that the surety may at any time force the creditor to proceed against the principal by a bill quia timet, or by paying the whole debt, have an assignment of all the securities, and proceed immediately himself against the principal debtor; or in any other mode authorized by the assigned securities. Such an agreement [**32]  reserving the remedies, might not in many cases be of the least benefit to the principal debtor; since it leaves him entirely at the mercy of the surety; yet if the parties do so expressly contract, the surety can have no ground to complain, that the implied contract has been altered or impaired in any way to his prejudice; and therefore he cannot be discharged. 6 Ves. 807. 18 Ves. 20. 3 Bos. and Pul. 363. 8 East. 576. 1 Peters, 575.

By the agreement of the 26th May, 1828, it is expressly declared, that nothing herein contained should in any manner affect the mortgage given by Thomas Clagett and his family, to indemnify Salmon against certain risks and losses. If this general reservation had been made in an agreement between Salmon and the other creditors of Thomas Clagett alone, there might have been some difficulty in treating it as such a reservation as would preserve to the sureties the benefit of the implied contract in all respects; because it is not enough that the creditor alone should make such a stipulation, the principal debtor must also consent, that his liability to the surety should remain entire and undiminished.  [**33]  But here, Thomas Clagett, by signing this agreement, has thereby distinctly assented to this express reservation of the remedies upon the mortgage itself, as well as upon its incident implied contract; for the stipulation, that nothing therein contained, should affect the mortgage, must, according to every fair interpretation of the expression, be considered as a complete reservation of the remedies to this whole extent. And so considered, it is clear, that these sureties cannot found any claim to be discharged from the mortgage, upon any thing contained in the agreement of the 26th May, 1828.

The defendants moreover object, that supposing they are wrong, as to the time when the mortgage might have been foreclosed, then the plaintiff cannot have under this bill relief of any kind, because he has instituted his suit before his debt became due; and, that if this injunction were to be made perpetual, they would be tied up indefinitely, and thrown at the mercy of the plaintiff, without the possibility of relieving themselves in any way whatever. Where a debt secured by a mortgage is made payable by installments, it is well settled that the mortgage becomes forfeited by the non-payment [**34]  of the first installment, and may be foreclosed immediately after that time. If a bill be filed for that purpose, the debtor may, however, prevent a foreclosure, or sale, by paying the installment then due; but if he fails to do so, then the mortgage may be entirely foreclosed; or so much of the property may be sold, as will satisfy the sum due at that time; and the decree will be allowed to stand as a security for the other installments as they become due. But if the mortgage property cannot be conveniently or safely sold in parcels, then it must be disposed of entire; and the whole debt raised and paid, with a rebate of interest on the sums not due, at the time of paying over the proceeds of sale to the creditor. This is done from necessity, and as an unavoidable consequence of the peculiar nature of the case. 2 Vern. 133. 2 Eden. 197. 3 Mad. 160. 2 Mun. 412. 1 Maul. and Selw. 706. 1 Wils. 80. 3 Burr. 1370. Doug. 100. 6 Term. Rep. 399. 1 Bin. 152. 3 H. & McH. 94. 6 Harr. and Johns. 476.

It is also well established, that if the mortgagor who holds the possession commits waste, or in any manner attempts to diminish [**35]  the value of the property, or where it consists of personalty, is about to remove it beyond the reach of his creditor, so as to render it unequal to the discharge of the debt; or to place it so as not to be forth-coming for the satisfaction of the debt, he may be restrained by injunction. And an injunction for such a purpose may be obtained at any time before the debt becomes due; for otherwise, a fraudulent mortgager, might at his pleasure deprive the creditor of all benefit from his mortgage. Upon this ground this injunction was granted, and now reposes. Eden. Jnj. 119.

It is clear, that this mortgage could not have been foreclosed at the time the bill was filed; because the credit given had not then expired; and therefore, Salmon could not then have asked for more than he had prayed for; that is, to have the property placed under the protection of an injunction from this court; and relief cannot now be extend-to him beyond that of perpetuating the injunction heretofore granted. In a case situated like this, the plaintiff, before the debt became due, filed a bill praying for a sale and an injunction to stay waste. The injunction was granted; and on the coming in of the answer,  [**36]  was, on motion to dissolve, continued to the final hearing. After the mortgaged debt became due the mortgagee filed another bill praying a sale. Upon the hearing of which second bill it was objected in the answer, that there was another suit then depending embracing the same subject. But I consider the first as a mere injunction bill, on which there could have been no decree for a sale, and as not at all inconsistent with the second bill, on which I decreed a sale accordingly. Brewer vs. Murdoch, Ms. 2, October 1826.

It was indispensably necessary in this case, that the plaintiff should establish his title, as he has done, and also to show that there was some debt unsatisfied; for if the mortgage had been found to be defective or inefficient in its origin, or had been nullified by the fraud, or any improper act of the plaintiff; or had been fully satisfied, the plaintiff could not have had any foundation on which to call for the preservation and protection of the property, which had never been, or had ceased to be thus legally pledged for his benefit. The validity of the mortgage has been sustained; and it is in proof, that there is still a large amount of debt covered by it.  [**37]  These points having been investigated and determined, as a necessary basis for the decree now called for in relation to this injunction, must be considered as closed, and finally concluded between these parties, and those claiming under them, on any bill which may be hereafter filed, either to foreclose, or to redeem. But it would be needless now to determine the exact amount of the debt due; and therefore, I deem it unnecessary to say, whether the sum received from Penrice by Thomas Clagett, or the house rent, ought, or ought not to be considered as parts of the mortgage debt, the amount of which it will be most proper hereafter to determine upon another bill. 2 Mun. 412. 1 Bin. 152.

Neither of the parties to this suit can sustain any substantial injury from this injunction being made perpetual; because it will merely so guard the property pledged, as to give to the plaintiff the full benefit of it, when he shall find it necessary, or be prepared to come here, and ask to have it applied to the satisfaction of his claim; and it will leave the defendants free to redeem and disengage it from the lien by which it is now bound, at any time they may think proper to pay [**38]  the debt. I shall therefore continue the injunction so as to cover all the personal property now ascertained to be embraced by the mortgage; subject to the further order of the court, on either a bill to foreclose, or to redeem.

A decree was passed accordingly, from which the defendants appealed to this court.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

C died, and an inventory of his estate was returned by his administratrix to the Orphans Court, in 1816, who passed an account termed a final account in 1823. In 1827, the administratrix and several of the children of the intestate united in a mortgage of property mentioned in the inventory--HELD, that the rights of creditors of the deceased not being in controversy, the mortgagors could not contend that this property was in the hands of the administratrix for distribution, and from the lapse of time, a court of equity would presume, in support of the mortgage, that the intestate's debts had been paid, and distribution made.

The act of 1763, ch. 13, relates wholly to gifts of negroes and slaves, and has nothing to do with mortgages, or other assurances for valuable consideration.

By the act of 1729, ch. 8, a mortgage of personal property, of which the mortgagor retains possession, is void, so far as the rights of creditors are concerned, unless acknowledged and recorded as therein prescribed, but although not recorded at all, or not recorded in time, it is still legally effectual against the mortgagor and all claiming under him.

Several persons united in a mortgage of the property, reciting that C, one of the parties, had lately commenced, and intended pursuing the business of a merchant, and that the mortgagee had agreed to give him credit and become his surety and endorser to the amount of $ 10,000 in the prosecution of his business, and the mortgage also contained a proviso to indemnify the mortgagee from all advances, &c. which he shall "incur or make on account of the said C, not to exceed at any one time the sum of $ 10,000." HELD, that the sureties of C were not discharged because the mortgagee did not limit his advances to the sum of $ 10,000, and that the object of that stipulation was merely to confine their responsibility within that sum, and not to prevent the mortgagee giving C further credit.

A mortgagee, before the period at which he has a right to foreclose or sell, the subject mortgaged, upon a bill charging that the mortgagors contemplate and design to sell and dispose of the mortgaged property, with a view of defeating his lien, or that he is apprehensive the defendants will sell, dispose of, conceal, or remove the whole of the personal property before the same could be made responsible to him for the satisfaction of his claim, may obtain an injunction to preserve the property, and prevent it from being removed before it could be made responsible for his claim according to the terms of the mortgage, and the Chancellor may pass a final decree upon such a bill in conformity with the principles, and for the objects, above mentioned.

Where a complainant applies to a Court of Chancery for an injunction to preserve property mortgaged to him, from waste, destruction or removal, which he has sufficient reason to apprehend will occur before he has a right to proceed upon his mortgage for a sale or foreclosure, he is entitled to costs, upon the final decision of his cause.

At law, if two persons be bound jointly and severally, and the obligee releases one of them, both are discharged, yet equity will not give a release or operation beyond the intention of the parties, and the justice of the case.

Where time is given by contract to a principal for the payment of a debt, without the consent of a surety, he will be discharged because he is only bound by the terms of his contract, and any variation of those terms, without his consent, will operate to discharge him.

A creditor may stipulate with his debtor, giving him time for the payment of his debts, and in the same contract declare, that such forbearance shall not affect the creditor's rights against the debtor's sureties. By the reservation of the remedy against the sureties in the contract for time, the debtor tacitly consents to forego and waive the benefit of such contract, in case the creditor should afterwards find it necessary to resort to the sureties for the full and complete extinguishment of his debt.

Such a contract between the creditor and principal debtor is not absolute, but conditional and contingent; and in effect, the debtor being at all times responsible to his sureties in case they are proceeded against by the creditor, they cannot claim to be discharged from liability to such creditor.  

COUNSEL:
Alexander, for the appellant, contended,

1. That the complainant has no equitable claim or right to any part of the personal property mentioned in the mortgage from the appellants to him; the said property being in the hands of the appellant, Elizabeth, as administratrix of William Clagett, deceased, and admitted to be liable to the demands of creditors, and next of kin. Alexander vs. Riston, 2 Gill and Johns. 96. 6 Buc. Abr. 683.

2. That by the terms of said mortgage, the appellee stipulated to limit his advances to the sum of $ 10,000; and by giving credit beyond that sum he released the other appellants, who were only sureties. Chase vs. McDonald and Ridgely, 7 Harr. and Johns. 161.

3. That those sureties are released by the agreement of May, 1828, between the appellee, and the trustees of Thomas Clagett, which was intended [**39]  materially to vary the original contract for guarantee, and to impair, and destroy the remedies to which the sureties, in the absence of the agreement, would have been entitled. That agreement deprived the sureties of the benefit of the deed of trust from Thomas Clagett to Cobb & Bidell, which was for the general benefit of creditors, including Salmon. Hayes vs. Ward, 4 Johns. Ch. Rep. 130. Craythorn vs. Swinbourne, 14 Ves. 162. 1 Mad. 185. Capel vs. Butler, 2 Simons and Steuart, 457. 3 Stark. Ev. 1050. 1 Mad. Ch. 405. Rees vs. Berrington, 2 Ves. Jr. 450. Gould vs. Robson and Keymer, 8 East. 576.

The agreement also extends the time of payment, as provided in the mortgage, and for that reason discharges the sureties. It has been said, that the mortgage was not forfeitable until 1830, and yet the sureties might have called on the creditor to sue the principal debtor as soon as any part of the money for which they were responsible became due and payable. King vs. Baldwin, 2 Johns. Ch. R. 562. Barker vs. Wyld, 1 Vernon, 140. But this agreement discharges the principal debtor, and consequently, the surety is discharged. Coke Lit. 232. (a) 4 Bac. Abr. Release (G) 282. Rees vs. Berrington,  [**40]  2 Ves. Jr. 542. 2 Chitty Eq. Dig. 1175. Shep. Touch. 395. The reservation of the right to proceed upon the mortgage will not preserve the responsibilities of the sureties; they are discharged by the discharge of the principal. 1 Poth. 215. Ex parte Gifford, 6 Ves. Jr. 805. Boultbee vs. Stubbs, 18 Ves. 20. King vs. Baldwin, 2 Johns. Ch. Rep. 561. Chitty on Bills, 292. When the debt becomes due the surety may call on the creditor to sue the principal debtor, and the surety has a right to pay the debt, and to be substituted to all the rights and securities of the creditor, who cannot deprive him of these advantages, without forfeiting his remedy against him. Wright vs. Simpson, 6 Ves. 734. Nisbet vs. Smith, 2 Bro. Ch. Cas. 583. Gould vs. Robson & Keymer, 8 East. 576. King vs. Sheriff Surrey, 1 Taunt. 159.

There are some cases in which it has been held, that the right to sue the principal might be suspended, without discharging the surety; but none where the principal has been released from the debt. When that is done, the surety is absolved from all responsibility. Dean vs. Newhall, 8 Term. Rep. 168. Kirby vs. Taylor, 6 Johns. Ch. R. 250. And the release of the principal, for a time,  [**41]  is equivalent to a final discharge, in reference to its effect upon the surety. Coke Lit. 274. (a)

4. That the appellee has failed to show by his bill, or proofs, any ground for the interference of the court of Chancery by injunction. Hanson vs. Gardiner, 7 Ves. 309. Etches vs. Lance, 7 Ves. 417. Hanway vs. McIntire, 11 Ves. 54. Mattocks vs. Tremain, 3 Johns. Ch. Rep. 75. Woodward vs. Schatzell, 3 Ib. 412. Hippesley vs. Spencer, 5 Mad Rep. 422.

5. That the court of Chancery erred in decreeing a perpetual injunction, and in declaring such injunction to be subject to any order to be passed in another cause. Nat. Bre. 140. A final decree cannot be affected by an independent bill filed by either of the parties. There must be a bill of review, or a bill in the nature of a bill of review. Bolton vs. Bull, 3 Ves. 140. Hall vs. Hoddison, 2 P. Wms. 162.

6. That the complainant was not entitled to his costs. Foulds vs. Midgley, 1 Ves. and B. 138. Chaplin vs. Cooper, Ib. 16. Vancouver vs. Bliss, 11 Ves. 462. 1 Mad. Ch. Pr. 195, 216, 217, 218. 1 Newland's Pr. 398. Simmonds vs. Lord Kinnaird, 4 Ves. 746. Seers vs. Hind, 1 Ves. Jr. 293. King vs. Clark, 3 Paige, 77. Winslow vs. Collins,  [**42]  3 Paige, 89. Ridgely vs. Gittings, 2 Harr. and Gill, 58. 2 Mad. Ch. Pr. 577. Att'y Gen. vs. Butcher, 4 Russ. 180.

7. That the decree, dismissing the bill as against Richard H. Clagett, the minor, ought also to have declared the mortgage void, and inoperative against him, and that the injunction should be subject to his rights. 2 Harr. Ent. 298. Giles vs. Barimore, 5 Johns. Ch. R. 549.

8. The mortgage is inoperative as to the personalty, from the failure to record it in time. Gassaway vs. Dorsey, 4 Harr. and McHen. 405. Stat. 13, Ed. 1. 2 Inst. 331. 2 Harr. Ent. 252. Coke Lit. 384. (a) Hurn vs. Soper, 6 H. and Johns. 280 .Belt vs. Hepburn, 4 H. and McHen. 527.

Taney, (Att'y Genl. U.S.) Johnson, and Mayer, for the appellee.

If the question of costs is subject to the review of this court, which may be well doubted, there is nothing in the circumstances of this case which should except it from the general rule, allowing costs to the successful party. The defendants have contested the complainant's claim throughout, and subjected him to a great deal of unnecessary trouble and expense in establishing his claim. Winder vs. Diffenderffer, 3 Gill and Johns. 311. Vancouver [**43]  vs. Bliss, 11 Ves. 462. Newell vs. Trustees of Huntington, 1 Johns. Ch. R. 182.

2. The mortgage was designed to guarantee the appellee against loss, and the words of the instrument are to be construed most strongly against the mortgagors. Mason vs. Pritchard, 12 East. 228. It has been said, that the mortgagors did not intend that Salmon's responsibilities for Thomas Clagett should exceed $ 10,000, and that by going beyond that amount they are discharged from liability. This however, cannot be the true construction of the mortgage, nor could such have been the design of the parties; unless we suppose they intended that Thomas Clagett's debts to every body should never, in the aggregate, exceed $ 10,000, for, with respect to the risk of the mortgagors, it is precisely the same, whether the money is due to Salmon alone, or to Salmon and others. But the authorities on this point are conclusive, and need only be referred to. Lanusse vs. Barker, 3 Wheat, 148, (note.) Sturges vs. Robbins, 7 Mass. Rep. 301. Kirby vs. Duke of Marlborough, 2 Maul. and Selw. 18.

3. The failure to record the mortgage in time, is no objection to its validity as between these parties. The case in 4 Harr.  [**44]  and McHen. 405, only decides, that an office copy of a paper not recorded in time, is not evidence, and not that the original would not be binding upon the parties to it. The acts of 1729, ch. 8, and 1763, ch. 13, are to be construed together. The former embraced the cases of sales, gifts, and mortgages. The latter only of gifts of negro slaves, and of course, gifts only are affected by it. The objection, that the personal property was in the hands of Elizabeth Clagett as administratrix, and for that reason, that the mortgage is invalid, is equally destitute of foundation. After such a lapse of time, the legal presumption is, that the debts of the deceased have been paid, as was decided in Allender and Riston; but if this was not so, still, as between the administrator and the grantee, the former cannot be allowed to impeach the deed, upon the ground that it was made in fraud of creditors. Such an objection cannot be made by him. Marshall vs. Williams, 4 Gill and Johns. 376. Nor can the distributees make the objection, because they also are parties to the deed. The minor, Richard, does not in his answer rely upon his infancy as a defence. He, like the other defendants, puts the complainant [**45]  upon the proof of his claim, and relies upon the other defences set up by them. If he had relied upon his infancy, and had asked that his share of the fund should be paid him, it might have been different; but as he has not done so, and seeks to vacate the whole deed, he cannot have his proportion paid him. It is, therefore, the ordinary case of an administrator, and distributees, disposing of the estate of an intestate, which disposition is good unless impeached upon the ground of fraud, of which there is no evidence, nor is there any evidence that Salmon knew that Richard was a minor, or that there were other distributees besides those who executed the deed. Allender vs. Riston, 2 Gill and Johns. 97. 7 Johns. Ch. R. 17. But in point of fact, the minor is not prejudiced by the decree in this case. The bill as to him is dismissed with costs, and when the fund gets into the court of Chancery the decree interposes no obstacle to his there seeking and recovering his share. The object of this bill is simply to prevent the parties to the mortgage (as to whom it is unquestionably a valid instrument) from alienating the property, and the decree only perpetuates the injunction for that purpose.  [**46]  It does not direct a sale, nor in any way affect the minor's interest.

The fourth and fifth points of the appellants assume the validity of the mortgage, and say, that at the time the bill was filed, the mortgagee might have foreclosed. This is not so; at the time the bill was filed the mortgagor was not in a condition to foreclose as to the real, or take possession of the personal estate. The agreement with Cobb and Bidel took from him this right. At the time the bill was filed, the appellee had no remedy at law, and if a court of Chancery could not interfere by way of injunction, the danger of loss to which the property was exposed could not be averted. The decree does nothing more than protect the appellee from fraud, and this court consequently cannot reverse it. It is said that there could not be a final decree or perpetual injunction. The answer to this is, that the case was to be finally disposed of in some way, so that the party entitled should recover his costs. But there is nothing in the decree which prevents the defendants from redeeming. They are not to await the proceedings of the opposite party. It has been urged, that the effect of a final decre in one case, cannot [**47]  be altered or impaired upon a subsequent independent bill. Though this may possibly be true as a general rule, it cannot apply to a case like the present, where, from the very nature of the proceeding, a subsequent bill is indispensable. To show that the bill made a proper case for an injunction, they referred to Jeremy's Eq. 306. Eden Inj. 1. Keyes vs. Brush, 2 Paige's Rep. 311.

6. The agreement of the 26th May, 1828, between the appellee and the trustees of Thomas Clagett, does not release the sureties. The proviso in the mortgage is, that if Thomas Clagett should pay the sums for which the mortgage was to stand as a security, by the 1st of October, 1830, it should be void. The payment then, on or before that day, would save the mortgage, as to every description of liability or advance to be made by Salmon. It cannot be supposed that the mortgagors intended that if Salmon should make an advance, or pay a note for Clagett, at any time before the 1st of October, 1830, that he should be at liberty at once, to foreclose for the amount so paid or advanced. The object of the parties at the time of the contract was, to give Clagett the advantage of Salmon's aid until the 1st of October,  [**48]  1830, which would be defeated by a construction, authorizing him to proceed against the sureties earlier. If this be the true construction of the mortgage, then the agreement of May, 1828, does not enlarge the time, because, it leaves him at liberty to proceed in May, 1830. One of the stipulations of this agreement is, that the mortgage shall not be impaired by it. No construction, therefore, can be given to it which will have that effect, because that stipulation is as essential a part of the agreement as any other. If it cannot be so executed as to avoid that effect, it should not be executed at all. An agreement for time which will discharge a surety, must be an agreement to give time in the very contract supposed to be discharged, and must suspend the creditor's remedy on that account. Planter's Bank vs. Selman, 2 Gill and Johns. 230. But the agreement in this case did not suspend the remedy on the mortgage, and of course, it cannot be discharged. Nor does the agreement release Clagett, as has been urged. In the first place, it is not a technical release under seal; and in the second, it contains no words of present release, but only stipulates for his discharge, upon his doing [**49]  certain things which he not only has not done, but is now resisting.

But suppose the agreement does give time, and release the principal debtor, cannot that be done with an effectual reservation of the creditor's remedy against the surety? If time be given, or the principal released without such reservation, the surety is discharged, because otherwise the debtor could not have the benefit of the release, as the surety, if made to pay the money, might immediately, notwithstanding the release, proceed against his principal. The latter therefore would be deceived, and tantalized with hopes which could not be fulfilled. If however the debtor consents to the reservation, he can have nothing to complain of, nor is the surety injured, since his remedy over against his principal, is precisely as it was before the release, and he stands in all respects after, as he stood before. Ex parte Gifford, 6 Ves. 835. Boultbee vs. Stubbs, 18 Ves. 20. Chitty on Bills, 294. 1 Saund. P. and Ev. 309. 3 Kent Com. 112.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*343]  STEPHEN, J. delivered the opinion of the court.
The decision [**50]  of this case involves the consideration of several important principles of equitable jurisprudence, relative to the doctrine of substitution, and the rights, duties, and obligations resulting from the relation of principal and surety. (And here the judge referred to the statement of the cause as set forth in the commencement of this report.)
The defendants appealed from this decree, and contended that it should be reversed, because the complainant has no equitable right or claim to any part of the personal property mentioned in the aforesaid mortgage, the said property being in the hands of the appellant, Elizabeth, as administratrix of William Clagett, deceased, and liable to the demands of the creditors, and next of kin of the deceased. They further contend, that by the terms of the mortgage, the appellee stipulated to limit his advances to Thomas Clagett, to the sum of $ 10,000, and by giving credit beyond that sum, he released the other appellants, who were only sureties. That those sureties are released by the agreement between the appellee and the trustees of Thomas Clagett, which was intended materially to vary the original contract for guarantee, and to impair,  [**51]  and destroy the remedies to which the sureties in the absence of the agreement would have been entitled. They also contend, that the appellee has failed to show by his bill or proofs, any ground for the interference of the court of Chancery by injunction; and that the court of Chancery erred in decreeing a perpetual injunction, and declaring such injunction to be subject to 

 [*344]  any order to be passed in another cause. And that costs ought not to have been decreed to the appellee. They finally contend, that the decreed dismissing the bill as against Richard H. Clagett, ought also to have declared, that the aforesaid mortgage is void, and inoperative against him, and that the injunction should be subject to his rights.
As to the first objection raised by the appellants, that the deed of mortgage conveyed no right or title to the personal property therein specified; it may be remarked, that the deed only professes to convey all their right and title to the property, which of course was subject to the claims of creditors, if any such there were, but from the lapse of time which had taken place between the death of William Clagett, and the date of the letters of administration [**52]  granted to his widow, Elizabeth Clagett, and the date of the mortgage, it is fair to presume that the debts were all paid and satisfied prior to that time, and consequently that the mortgage did not in any degree operate to their prejudice. It appears by the proof in the cause, that an inventory of his estate was returned in the year 1816, and that his administratrix settled with the Orphans Court an account which she termed a final account in the year 1823. The deed of mortgage was not executed till the year 1827. It appears then, that a period of about eleven years had expired from the time letters of administration were taken out upon his estate before the mortgage was executed; and this court have said in the case of Allender vs. Riston, 2 G. & J. 86, "in the case now before this court it no where appears that there were any debts remaining due and unpaid at the time of the mortgage; or if there were, that the defendants knew of them;" and to use the language of Mr. Justice Ashhurst, in 4 Term. R. 645; "if the creditors will lie by and not assert their rights, it is reasonable for a third person to suppose that all the debts are satisfied.  [**53]  " In the case now before this court, the presumption of payment arising from lapse of time is strongly fortified and corroborated by the fact, that the administratrix passed her 

 [*345]  final account with the Orphans Court, several years prior to the execution of the deed of mortgage.
In the case above referred to, this court held the following language, which is strikingly applicable to the case under consideration. "It does not appear that the administratrix acted in her representative character at the time she executed the deed of mortgage. She does not in terms assume that character, and has associated herself in making the disposition of the property with three of the children, and representatives of her intestate. From this fact, connected with the strong circumstances existing in the case to induce a presumption that the debts were all satisfied, it is fair to infer, that she had made a distribution of the remaining assets, and acted in her character of distributee." But it is contended on the part of the appellants in this case, that the bill of the complainant shows that no distribution was ever made prior to the execution of the deed of mortgage in this cause; but so [**54]  far from this being the fact, upon recurring to the bill it will be found that it expressly charges that distribution was made by the Orphans Court, but that the property never had been actually delivered to the representatives, but remained in the possession of the administratrix, and Edmund Clagett, one of the distributees, who used and employed the same for the common benefit of themselves, and the other heirs and legal representatives. If this view of the case be correct, and there was sufficient ground to infer that the debts were all paid and satisfied, the next question which arises is, whether or not the deed is binding and obligatory on the mortgagors who executed it; and the question as to the power or right of an executor to appropriate the assets of the deceased, in any manner not conformable to the duties of his trust, is not necessarily involved in the consideration of this case. We do not consider that the act of 1763 has any operation or bearing upon the merits of this controversy, as it relates wholly to gifts of negroes and slaves, and has nothing to do with mortgages or other assurances for valuable consideration. 

 [*346]  By the provisions of the act of 1729,  [**55]  ch. 8, a mortgage of personal property, of which the mortgagor retained possession is void, unless acknowledged and recorded as therein prescribed, so far as the rights of creditors are concerned; but although not recorded at all, or not recorded in time, it is still legally operative and effectual against the mortgagor, and all claiming under him. This court have accordingly in Dorsey vs. Smithson, 6 H. & J. 61, decided, that a deed not recorded as the act of Assembly directs, is void as to creditors if made to their injury, but it is binding on the donor, and all claiming under him, both at common law, and under said act. This case also shows that the deed being binding and obligatory on the parties thereto, they are estopped to allege that the same is in fraud of creditors. In Hudson vs. Warner and Vance, 2 H. & G. 415, this court sanction the same principle, and held the following language in reference to the case then before them. "The bill of sale made in 1820 to Warner and Vance was made upon a good consideration. It was made to indemnify them against suretyships entered into, and to be entered into by them for J. and T. Vance, and [**56]  it cannot be questioned but that it was perfectly available, as between the immediate parties to the instrument, although it was not recorded. It might be void against creditors who were injured by it, yet nevertheless binding on them." We are therefore of opinion, that the deed of mortgage was legally binding, and obligatory upon all the parties who were of full age at the time it was executed.
As to the objection that the sureties are discharged, because Salmon did not limit his advances to the sum of $ 10,000, we think that no such result legitimately flows from the contract, according to its true and proper construction. The same objection was made and overruled in a case strikingly analogous, reported in Sturges et al. vs. Robbins, 7 Mass. 301, 304. That case was as follows: "A subscribed a memorandum of the following tenor, viz: the subscriber hereby engages to Messrs. B 

 [*347]  and C, that if they will credit D, a sum not exceeding $ 500, in case he shall not pay the same in twelve months from this date, I will pay the same myself. In consequence whereof, B and C sold goods to D, to the value of $ 500, taking his promissory note for that sum. Immediately [**57]  after B and C sold D other goods, for which he gave another note for $ 375. Within the year D paid $ 200, which was endorsed on the last mentioned note, and in three months after the year expired, he paid the balance of that note, and it was cancelled. Soon afterwards B and C sold other goods to D, taking his promissory note for $ 379 for the same, without any guarantee; $ 200 were paid on this last note, the balance thereof, and the whole of the note for $ 500 remaining unpaid. In an action by B and C against A, upon the memorandum aforesaid, it was held, that A was answerable for the $ 500 and interest, from the expiration of the year; due notice having been given him, that the debt which he had guarantied was unpaid, and the same having been demanded of him.--Parker, J.--on the facts agreed in the case; the question submitted to us is, whether the defendant is liable for the whole, or any part of the sum mentioned in the writing on which the action is founded. The counsel for the defendant has contended, that the writing signed by the defendant contained a conditional engagement only, and that the condition is of a nature to avoid the contract, if not strictly complied with [**58]  by the plaintiffs, the true construction of the writing being, that the defendant would be answerable, if the plaintiffs did not trust Davis more than $ 500, but that if they exceeded that sum, he was not to be liable. We cannot adopt this construction, being satisfied, that the words which are supposed to amount to a condition, were intended by the defendant, only to limit his responsibility to the sum of $ 500; there being no reason why he should be unwilling that Davis should obtain further credit on his own responsibility, a circumstance which would diminish, rather than increase the defendant's eventual liability to pay the money."

 [*348]  We think, under the allegations contained in the bill, and the circumstances of this case, the chancellor did right in granting the injunction, for the purpose of holding the property responsible for the satisfaction of the mortgage. The language of the complainant's bill is, "that he has reason to believe, and therefore charges, that the defendants contemplate and design to sell and dispose of part or the whole of said property, with a view of defeating your orator's lien, and that he is apprehensive, the defendants will sell,  [**59]  dispose of, conceal or remove the whole, or a part of the personal property, before the same can be made responsible to him, for the satisfaction of his claim." In the case of personal property, held by one for life, remainder to another, where danger of loss, or injury is apprehended. Chancellor Kent, in 2 Com. 286, 287, speaks in the following terms. "The interest of the party in remainder in chattels, is precarious, because another has an interest in possession, and chattels by their very nature, are exposed to abuse, loss, and destruction. It was understood to be the old rule in Chancery, that the person entitled in remainder, could call for security from the tenant for life, that the property should be forth-coming at his decease; but that practice has been overruled. Ld. Thurlow said, that the party entitled in remainder, could call for the exhibition of an inventory of the property, and which must be signed by the legatee for life, and deposited in court, and that is all he is ordinarily entitled to. But it is admitted, that the security may still be required in a case of real danger, that the property may be wasted, secreted, or removed." To the same effect is 2 [**60]  Fearne on Remainders, 35, where he says, "we may recollect its having been said, that in case of a bequest of goods, to one for life, with remainder over, the legatee for life was compellable in equity, to give security for the goods being forth-coming at his decease, and accordingly, in the above cited cases of Vachel vs. Vachel, and Hyde vs. Parratt, the bills appear to have prayed such security, and this it seems was the old rule of 

 [*349]  the court. But the latter practice is, for an inventory to be signed by the devisee for life, and to be deposited with the master for the benefit of all the parties, which Ld. Thurlow, in a late case observed, was more equal justice, as there ought to be danger in order to require security."
As establishing the same principle, we have the following case in 4 Hen. and Mun. 503. "The defendants had recovered a judgment at law, against the plaintiff for some negroes, the use of whom was devised to the defendant's wife for life, and then to the plaintiff, and the bill was filed for an injunction, which was granted, to inhibit the defendants from getting possession of the negroes until they gave security for their forth-coming [**61]  at the death of the wife, upon this ground, that her husband having failed as a merchant, might put the negroes beyond the plaintiff's control. Upon the coming in of the answer, although it denied that allegation, and of which there was no proof, the court refused to dissolve the injunction, as both parties had become interested in the continuance thereof; and directed an account of the profits since the verdict, which account was reported, and the cause now came up for a final hearing. By the chancellor, though it is a matter of course for one in remainder of chattels, to file a bill for an account, and an inventory of the property, that it may be certainly known; yet, the court will not rule the tenant for life to give security, unless there appears to be some danger of wasting, or putting the property out of the way. In this case, that danger does not appear. The report however, which contains an account of the property, may be confirmed as a beneficial one to both sides, since the plaintiff was properly admitted into court." The principles recognized in these cases fully justify the granting of the injunction to preserve the property, and prevent it from being removed before it [**62]  could be made responsible to the complainant's claim, according to the terms of the contract entered into between the parties. The only effect and operation of it, was to put it out of the power of the respondents, to commit an act of fraud and injustice, 

 [*350]  of which they must complain with very ill grace in a court of conscience.
Neither do we think that the chancellor erred in decreeing costs to the appellee, even if an appeal would lie for costs. In Eastburn and Downes vs. Kirk, 2 Johns. Ch. 317, Chancellor Kent says, "costs in chancery do not depend upon any statute, nor do they absolutely depend upon the event of a cause. They depend upon conscience and upon a full and satisfactory view and determination of the whole merits of a case. They rest in sound discretion, to be exercised under a consideration of all the circumstances. A litigation for costs only, is never favored in a court of equity. A party cannot have a re-hearing for costs only, except in special cases, and it is understood that an appeal will not lie merely for costs. Selw. Wyatt, Prac. Reg. 34, says, "a party cannot appeal for costs only, but in particular cases the rule may,  [**63]  and has been dispensed with. He then adds a quere, whether it can be dispensed with, only in cases, where it appears on the face of the decree, that costs are improperly given, or where the merits must be gone into?" So in Doe ex dem. vs. Winch et al. 5 Barn. and Ald. 393. ABBOTT, Ch. J., says, "the costs at law, are the legal consequences of the suit. The costs in chancery, are in the discretion of the chancellor, and entirely depend upon circumstances." Without intending to decide whether an appeal will lie on account of costs or not, we do not think that the circumstances of this case would warrant an exception to the general rule. If the general rule be as above stated, that a party cannot appeal for costs only, it sufficiently appearing from the pleadings and facts of the case, that the party complainant had good grounds, and was well warranted in applying to the Court of Chancery for its aid and assistance in preserving the property until it could be applied to his indemnity, and consequently that costs were properly awarded to him. With respect to the effect of the agreement between Thos. Clagett, the trustees of Thomas Clagett and the appellee,  [**64]  and 

 [*351]  how far it operates to discharge his sureties, it may be remarked that though the rule of law is well known to be, that if two persons be bound jointly and severally, and the obligee releases one of them, both are discharged, yet, equity will not give a release an operation beyond the intention of the parties, and the justice of the case. The release is to be construed according to the intent and object of it, and that intent will control and limit its operation. Fonb. Eq. 511. So in 6 Johns. Ch. 242, the principle was adjudged to be, that "where two or more persons are jointly, and severally bound in one obligation, a release of one obligor entirely discharges the rest at law, but not strictly so in equity. For equity will not extend the operation of a release beyond the clear intention of the parties, and the justice of the case, but will construe it to relate to the particular matter intended to be released. Thus, where A, B, and C, guardians, executed a bond, jointly and severally with T, as their surety, for the faithful performance of their guardianship, and the ward, after coming at full age, executed a release to A, adding, "but this release [**65]  is not to apply to, or affect my claim against B, my acting guardian, and whose account remains unsettled," Held, that the release as to A was good, and was also a good defence to T, so far as he was surety for A; but that he remained bound for B and C, the other two obligors."
It is true, that where time is given by contract, to the principal for the payment of the debt, without the consent of the surety, he will be discharged, because he is only bound by the terms of his contract, and any variation of those terms without his consent, will operate to discharge him. Thus, in King vs. Baldwin, 2 Johns. Ch. 554, Chancellor Kent says, "all the cases of relief of surety have gone upon the ground, that time was given to the principal by contract, without consent of the surety. The doctrine is, that the surety is bound by the terms of his contract; and if the creditor, by agreement with the principal debtor, without the concurrence of the surety, varies 

 [*352]  those terms by enlarging the time of performance, the surety is discharged, for he is injured, and his risk is increased. The surety is entitled to pay the debt when it becomes due, or he may call upon the [**66]  creditor by the aid of this court, to enforce his demand against the principal debtor. On paying the debt, he is entitled to the creditor's place by substitution, and if the creditor by agreement with the principal debtor, without the surety's consent, has disabled himself from suing, when he would otherwise have been entitled to sue under the original contract, or has deprived the surety, on his paying the debt, from having immediate recourse to his principal, the contract is varied to his prejudice, and he is consequently discharged. This is the true principle to be extracted from the cases." It is then upon the principle, that the contract of the surety is changed, or varied to his prejudice, and without his consent, that the surety is discharged. It is because the creditor has disabled himself from fulfilling the duties and obligations which he owes to the surety, that he is released from his responsibility. By giving time to the principal debtor, he disables himself from suing him so soon as the debt becomes due, when called on by the surety, through the intervention of the court of equity to do so. By extending the time of payment, he moreover deprives the surety of the benefit [**67]  of substitution, according to the original terms of the contract; because upon paying the debt, the surety would have been clothed or invested with the creditor's rights against the principal debtor; and but for the change of contract, would have been entitled to have immediate recourse to him for reimbursement and indemnity.
In the agreement entered into between Salmon, Clagett, and his trustees in this case, we find the following stipulation. "It is expressly understood, that nothing contained in this agreement shall in any manner affect the mortgage heretofore given by Thomas Clagett and his family, to indemnify said Salmon against certain risks or losses, excepting 

 [*353]  so far as to delay foreclosing the said mortgage from two years from the date hereof." The said agreement also contained the following stipulation. "After this agreement has been executed by the respective parties to it, it is understood, that all responsibilities to and from Thomas Clagett shall be annulled, so far as the persons we severally represent be concerned. Also to exonerate the family of Thomas Clagett from the payment of such notes as may be signed or endorsed by them, and [**68]  held by said Salmon, not interfering with, or invalidating their liability in the mortgage held by said Salmon." Here then, we find an express reservation by Salmon of all his rights under the deed of mortgage, and an express contract, that the liability of the sureties of Thomas Clagett should not be in any degree lessened or impaired by the terms of said agreement. What is the legal effect and operation of such a reservation upon the relative rights of Salmon, and the sureties of Clagett, and how far they are absolved from all responsibility to Salmon, in virtue of said agreement, remains now to be considered?
In Boultbee vs. Stubbs, 18 Ves. 26, the Ld. Chancellor, after stating the general principle, that if time is given to the principal the surety is discharged, holds the following language. "The objection to the reserve of remedy against the surety consists, in the interest the principal has, that the surety shall not be applied to. It is said, that the principal cannot by contract deprive himself of the benefit derived from that forbearance; and there certainly have been decisions, that if time is given to the principal reserving [**69]  the right to go against the surety, the principal cannot raise the objection upon his right to time, as against the surety, as there is the contract of the principal arising out of the contract for reserve against the surety, that the latter, if the creditor goes against him, shall not be deprived of the benefit of the contract as against the principal. That was Burke's case. If the contract for reserve against the surety prevents his remedy 

 [*354]  against the principal, that contract for reserve will not do. But the question is, whether it does in law deprive the surety of that benefit. It may in many cases be a very rational provision that the principal shall have time, provided he can have it without prejudice to the benefit of the remedy against the surety; which, though worth nothing at present, may in a year's time be very valuable, and the creditor may very reasonably mean to secure the benefit of that contingency." So also, it is said in Chitty on Bills, 203, that a composition with the acceptor, or other party to a bill, reserving the remedy for the remainder against the other parties, has been recognized in courts of law and equity, as not discharging such other [**70]  parties. And in 1 Saund. Pl. and Ev. 378, the same principle is stated, where he says a composition with the acceptor, or other party to a bill, reserving the remedy for the remainder against the other parties, will not discharge such other parties. There are two grounds upon which a creditor is held to discharge the surety by giving time to the principal. "According to one, the creditor by agreeing to give time, is regarded as having disentitled himself to proceed against the debtor, until the time agreed to be given is expired. But an agreement which has such an effect, is inconsistent with the obligation of the creditor to sue the principal debtor at any moment when called upon to do so by the surety; as the creditor's voluntary disablement of himself for the performance of this, or of any obligation which he is under towards the surety, discharges the surety. According to the other, he is regarded as having in point of good faith towards the debtor, obliged himself not to proceed against the surety; because, supposing him to proceed against the surety, and the surety to pay, the surety would be entitled instantly to proceed against the debtor; and so, through the medium of [**71]  the surety, he would deprive the debtor of the time which he agreed to give him; and therefore, to preserve good faith, he shall not proceed against the surety." 1 Law Library 107. So also, "the 

 [*355]  surety who has paid the debt of his principal, is entitled to stand in the place of the creditor, as to all securities for the debt held or acquired by the creditor, and to have the same benefit from them as the creditor." Ib. 150. But if the creditor reserves his remedy against the sureties, in the contract he makes with the principal debtor, the debtor thereby tacitly consents to forego, or waive the benefit of such contract, in case the creditor should afterwards find it necessary to resort to the sureties for the full and complete extinguishment of his debt. The contract therefore between the creditor and principal debtor, is not absolute, but conditional and contingent. In the case before this court, Salmon had taken an assignment of property, for the satisfaction of his claim against Clagett. He did not know at the time, to what extent it might be available for that purpose; and therefore his object evidently was, not to lose the benefit of the surety he had [**72]  obtained for its payment, by the arrangement he made with Clagett and his trustees. After stating that Clagett should be discharged, and his family released from certain notes signed and endorsed by them, upon the execution or fulfilment of the agreement entered into between the parties, such release, not to interfere with, or invalidate their liability in the mortgage held by Salmon, the parties to the contract insert the following stipulations. "It is expressly understood, that nothing contained in this agreement shall in any manner affect the mortgage heretofore given by Thomas Clagett and his family, to indemnify said Salmon against certain risks or losses, excepting so far as to delay foreclosing said mortgage for two years from the date hereof." Here then, we find an express contract on the part of Thomas Clagett, that notwithstanding this agreement for his discharge, the remedy of Salmon upon the mortgage, should not in the slightest manner be affected by it, but that his rights should remain the same as they were before such agreement, with the exception only of the delay of foreclosure, as therein stated. This reservation of his rights to 

 [*356]   [**73]  proceed against the sureties, contained in the same instrument stipulating for the discharge of the principal, amounted to an agreement on the part of the principal, to waive the benefit of that discharge, and to hold himself responsible to his sureties, in case Salmon should find it necessary to resort to them for payment or indemnity. As therefore in such an event, their rights and remedies against Clagett remained wholly unimpaired and unaffected, we do not perceive that they have any cause to complain, or that there is any ground, either in law, justice or reason, upon which they can claim to be discharged. By coercing payment from the sureties under this express agreement, no fraud would be practiced upon the principal, or injustice done to him, in case they should resort to him for reimbursement or indemnity; because the assent of the principal to continue liable to them, was implied in the reservation of the rights of the creditor to proceed against the sureties.
We do not think that there is any error in the chancellor's decree, so far as the interest of Richard H. Clagett was concerned. As to him the injunction was dissolved, and the bill dismissed with costs.  [**74]  Farther than this, we do not think the chancellor was bound to go, so far as his interest was involved in the controversy. Nor do we think that the decree passed by the chancellor in this case, was improper or objectionable. It merely provided for the security of the mortgaged property, until it was made to answer the purposes for which it was pledged under the deed of mortgage, and was well adapted to the exigency and justice of the case. In Wyatt's Practical Register in Chancery, p. 154, he says, "A decree is a final sentence or order of court, determining the rights of matters in question, according to equity, and ordering the parties accordingly, pronounced on hearing and understanding the cause."
Thinking the decree in this case perfectly conformable to the substantial principles of equity, and well adapted to secure the purposes of justice, we think the same ought to be affirmed.
DECREE AFFIRMED WITH COSTS.  

30 of 43 DOCUMENTS 

JOHN M. WYSE, et al. vs. SMITH AND BUCHANAN, AND JOHN TESSIER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 295; 1832 Md. LEXIS 14 

June, 1832, Decided 

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

On the 15th of June, 1825, a bill was filed by the appellees, against the appellants, stating that on the 1st of June, 1811, a certain William Wyse, late of Baltimore county, deceased, was indebted to Smith and Buchanan, as co-partners in trade, in the sum of $ 2737 48, for matters and articles properly chargeable in account. That being so indebted, the said Wyse departed this life in the year 1814, leaving several children, of whom some are minors, and that subsequently in the year 1820, the said Smith and Buchanan being indebted to John Tessier, in the sum of $ 4500, assigned him, on account thereof, their aforesaid claim against Wyse. That said Wyse, by his last will, duly executed, a copy of which is exhibited with the bill, directs, "his wife and son John, in case of a deficiency of his estate to support and educate his children, that his real estate, known by the name of the Deer Park, be disposed of, for the maintenance of said children, under their direction, and management." That Rachel Wyse, the window, (now deceased,) on the 12th of April, 1814, obtained letters of administration with the will annexed, on the estate of her husband,  [**2]  and settled with the Orphans Court, an account of his personal estate, on the 29th of June, 1816, a copy of which is also exhibited with the bill, by which there remained in her hands a balance of $ 5712 34. That on the 16th of July, 1823, and after the death of Rachel, letters of administration de bonis non, on the estate of William Wyse, were granted to Joseph Allender, who returned an inventory of the estate, which came to his hands, (a copy of which is exhibited,) amounting to $ 2293; and the complainants allege, that they have understood, and believe, that the difference between the balance appearing to be due the estate by the account of Rachel Wyse, and the inventory returned by Allender, was expended, in the maintenance, support and education, of the children of William Wyse. That some time after his death, his widow and son, petitioned for a decree, for the sale of his real estate, and on the 1st day of October, 1826, a decree for that purpose was obtained, which yet remains unexecuted. That petition, and proceedings upon it, are exhibited with the present bill. That Rachel the administratrix, always acknowledged the validity of the aforesaid claim, and being unable to pay [**3]  the amount thereof in cash, she gave to the complainant Tessier, her bond, with John M. Wyse as her security, dated on or about the 22d of January, 1820, payable one year after date, conditioned for payment of $ 4325, being the amount of principal and interest then due, with the distinct under-standing however, that the estate of Wyse, was not thereby to be in any way discharged from its liability for said claim. That said bond not having been paid when due, suit was brought thereon, and judgment confessed, but owing to the loss of the cause of action, the judgment never could be extended, or rendered available. That on or about the 16th of May, 1822, William A. Wyse, one of the sons of Wm. Wyse, being indebted to one George Riston, in the sum of $ 2000, for the purpose of securing the same, united with Rachel, the widow, John M. and Eliza Wyse, the children of Wm. Wyse, in a mortgage to Riston, of all their interests in the real and personal estate of the said William, an office copy of which mortgage is exhibited. Prayer, that the mortgage to Riston be set aside, and that the defendants, the children of Wyse, Riston and Allender, or such as may be liable therefor, be decreed to pay [**4]  complainant's claim, or in default thereof, that the real and personal estate of said Wyse, be sold for that purpose, and for general relief.

The petition of Rachel, and John M. Wyse, for the sale of the estate of William, which is referred to in the bill, states, that the said William, by his will duly executed, directed that his lands in Baltimore county, called Deer Park, should be sold under the directions of the petitioners, for the maintenance and education of the testator's children, in case his personal estate, should not be sufficient for that purpose. That the personal estate amounted to the sum of $ 7005 25, and that the administratrix has disbursed of that sum $ 1292 91, and that there is a claim now due Smith and Buchanan, amounting to the sum of $     That out of the balance of the personal estate, there is to be deducted a commission to the administratrix, and her third as widow; leaving the other two-thirds for the support of the children, for which it is wholly inadequate, and that their interests and necessities required that the land called Deer Park, should be sold, and the petition therefore prays, that trustees be appointed to sell the same. Kilty (Chancellor,  [**5]  ) on the 1st of October, 1816, passed a decree for the sale of the said land, and appointed the petitioners trustees to make the sale.

The answer of George Riston, admitted the death of Wyse, as stated in the bill, having first made the will, a copy of which is exhibited, and that his widow administered on, and took possession of his personal estate. That Tessier, one of the complainants, having presented to the said administratrix, whatever claim he had against her testator, she together with John M. Wyse, as her security, gave him their bond for the amount thereof, which this defendant has been informed, and believes, was accepted, in full discharge of his (Tessier's) claim against the estate. The defendant admitted the execution of the mortgage to him, as stated in the bill, and alleged the entire consideration therein stated, to be still unpaid. He insists that the whole of the property contained in the inventory returned by Allender, the administrator de bonis non, is comprehended in the mortgage to him; he does not admit, that the difference between the amount of that inventory, and the balance appearing to be in the hands of Rachel, the first administratrix, by the account [**6]  exhibited by the complainants, was expended in supporting and educating the children of William Wyse, but supposes that the profits of the land and houses, were appropriated for that purpose.

The answer of John M. Wyse, admits the debt from William Wyse his father, to Smith and Buchanan, as the bill charges, and the execution of the bond by Rachel, the administratrix, and himself to Tessier, for the principal and interest of the said claim. That said bond was intended by the obligors, and received by Tessier, in full discharge of the account of Smith and Buchanan, against the estate, and that Tessier, in pursuance of such understanding, delivered him said account with a receipt thereon, to be by him handed over to the administratrix. This defendant admits, that William Wyse died seized of the real estate, mentioned in the bill, and that after his death an application was made for a decree to sell a part thereof. That about sixty acres were accordingly sold, and the proceeds appropriated to the benefit of the testator's children.

The answer of Eliza Wyse, Margaretta Wyse, Wm. A. Wyse, and the minors, Edward, Nicholas, Matilda, and Francis Wyse, say that they have no knowledge [**7]  of the debt due from their father to Smith and Buchanan. They believe their father died seized of the lands mentioned in the bill, having first made his will, a copy of which is exhibited. The defendants, Eliza, Margaretta Wyse, and Wm. A. Wyse, do not admit, but deny that Smith and Buchanan, assigned their claim, whatever it may be, to Tessier, or that the latter has now, or ever had any claim upon the real estate which descended from their father to them. They believe that a portion of said real estate was sold under the decree mentioned in the bill, and that the proceeds, or a part thereof, was appropriated to the maintenance and education of themselves, and the other children of William Wyse.

The answer of Allender contains nothing material. A commission issued, under which proof was taken, and returned, establishing the validity of the claim of Smith and Buchanan, against William Wyse as stated in the bill, and that said claim was assigned by them, verbally, or in writing to John Tessier, in discharge of a debt to a larger amount due from Smith and Buchanan to him.

There was no evidence of a deficiency of the personal estate of the deceased to pay the debt, or that any [**8]  portion of the personal estate had been applied to the support and education of his children.

The account of Smith and Buchanan against Wyse, was proved to have a receipt on it, and to have been allowed the administratrix in her settlement with the Orphans Court. The money however was not paid in fact.

BLAND, (Chancellor,) July term, 1830, decreed that Allender, the administrator de bonis non, should account for the personal estate of the deceased, and that his real estate should be sold for the payment of his debts, and appointed a trustee for that purpose.

From this decree the defendants appealed to the Court of Appeals.  

DISPOSITION:
DECREE REVERSED, AND BILL DISMISSED WITH COSTS.  

HEADNOTES:

The personal estate of a deceased debtor is the natural fund for the payment of his debts; and must, in ordinary cases, be first resorted to by the creditor for the satisfaction of his claim.

If personal assets come to the hands of the executor or administrator, sufficient to pay all the debts of the deceased, the creditor must look to that fund for the payment of his debts; and if those assets are wasted, his remedy is on the official bond of the executor or administrator.

The real estate of the debtor is protected, unless the personal assets are insufficient; and to authorize the chancellor to pass a decree, to sell the real estate, to pay the debts of the deceased, the bill must allege an insufficiency of personal assets for that purpose, which allegation must be admitted by the answers, or proved.

Where a will directed real estate to be sold, for the support and education of the testator's children, and a part of the personal estate which ought to have been applied in payment of debts, had been expended to educate and maintain the children, creditors might call upon a court of equity to sell the real estate, so directed to be sold, for the payment of the claims. (qr.) A personal, collateral security, given by an administrator, for a debt due by a deceased intestate, cannot operate to place the creditor in a better situation against the real estate of the deceased, than he would be without such security.  

COUNSEL:
A. C. Magruder and Gwynn for the appellants, contended,

1. That there were personal assets to pay the claim, and therefore, the real estate was not liable. 2. That the bill does not aver a deficiency of the personality, and is consequently defective. Hoye vs. Brewer and Troup, 3 Gill and Johns. 153. 2. If the complainants ever had a claim as against the real estate, they had lost it, by taking the bond of the administratrix with security, and giving her such a receipt, as enabled her to get [**9]  a credit for the amount in the Orphans Court. 4. The complainants have forfeited their remedy against the real estate, (if they ever had any) by delaying to proceed, until the bond of the administratrix became barred by limitations. If they had prosecuted their claim against the administrators in due season, satisfaction might have been had out of the personality, which originally was amply sufficient for that purpose; having failed to do so, and allowed the administrators to waste the assets, and precluded a recovery on their bond, it would be unjust, especially as regards the infant heirs, to charge the real estate, when the creditor by his negligence, has permitted the fund primarily liable to him, to be placed not only beyond his reach, but beyond the reach of the heirs, if they should be made to pay the claim. They cited, 1 Chitty Eq. Dig. 277. Thompson vs. Tappen, 5 Johns. Ch. Rep. 518.

Scott, and Johnson, for the appellees.

Upon the death of Wm. Wyse, there was due from him to Smith and Buchanan upwards of $ 2000, and from the latter to John Tessier, upwards of $ 3000, no part of which has been paid, notwithstanding the receipt, and allowance of the account by the [**10]  Orphans Court. The receipt was given merely to enable the administratrix to get a credit in the Orphans Court, as is manifest from the evidence. Tessier in taking the bond, did not mean to discharge the estate, his object being to liquidate the claim, and to superadd to his security the personal responsibility of the obligors. The bill distinctly alleges the fact, that the bond was taken as cumulative security, and it is denied by only one of the defendants. To show that a creditor does not lose his remedy against the deceased's estate by taking the note of his administrator, they referred to Glenn vs. Smith, 2 Gill and Johns. 493. It can make no difference in this case, that a bond was taken for a simple contract debt, because it was the bond of the administratrix, to whose bond as such, this creditor had a right to resort; it is the case therefore of bond for bond. They insisted, that as the inventory of Allender, the administrator de bonis non, showed a deficiency of the personal estate, the whole real estate was liable to be sold, to make up that deficiency: but if the whole was not liable at all events, that portion of the realty was, which descended to the obligors in the bond.  [**11]  

JUDGES:
The case was argued before MARTIN, ARCHER, and DORSEY, J.  

OPINIONBY:
MARTIN 

OPINION:

 [*302]  MARTIN, J., delivered the opinion of the court.
The bill in this case was filed to obtain a decree for the sale of the real and personal estate of William Wyse, deceased, to pay a debt originally due to Smith and Buchanan, and alleged to have been assigned by them to John Tessier.
The chancellor has not stated the grounds upon which he founded this decree, and upon a careful examination of the record, we cannot think the complainants are entitled to it.
The personal estate of a deceased debtor, is the natural fund for the payment of his debts, and must in ordinary cases, be first resorted to, by the creditor for the satisfaction of his claim.
If personal assets come to the hands of the executor, or administrator, sufficient to pay all the debts of the deceased, the creditor must look to that fund for the payment of his debts, and if those assets are wasted, his remedy is on the official bond of the executor, or administrator. The real estate of the debtor is protected unless the personal assets are insufficient, and to authorize the chancellor to pass a decree to sell [**12]  the real estate to pay the debts of the deceased, the bill must allege an insufficiency of personal assets for that purpose, and must sustain that allegation by proof, or the admission of the opposite party. See Act of 1785, ch. 72. We cannot therefore sustain this decree under the act of 1785, because the bill does not allege an insufficiency of personal assets to pay the debts, and if alleged, the complainants by their own showing, disprove the allegation. By exhibit E, filed by the complainants, it appears that Rachel Wyse, the administratrix with the will annexed, of William Wyse, had on the 29th of June, 1816, a balance in her hands of $ 5712 34, and the only debt then due from the estate, (so far as can be collected from this record,) was the one now in controversy, to Smith and Buchanan, which then amounted to but little more than one half of that sum.
It is stated in the bill that it is directed by the will of 

 [*303]  William Wyse, that a part of his real estate called Deer Park, should be disposed of for the maintenance of his children, if the personal estate should be insufficient for that purpose, and that the difference in the amount [**13]  of assets, admitted to have been in the hands of the administratrix, on the 29th of June, 1816, and that returned by the administrator de bonis non, in the 23d January, 1824, was produced by applying the money to the education and maintenance of the children, and that a decree was obtained to sell Deer Park for the purposes of the will, but that it remains unexecuted.
If a part of the personal assets which ought to have been applied to the payment of this debt, had been expended to educate and maintain the children, to save the real estate, it would have merited the serious consideration of this court, but although such is the allegation in the bill, it is not admitted by any of the answers, and there is no attempt on the part of the complainants to sustain it. George Riston in his answer says, "he does not and cannot admit, that the difference between the balance of Rachel Wyse's administration account, and the assets returned by Joseph Allender, was expended in maintaining, supporting, or educating said children, but supposes and believes, that the profits of the farms, and rent of the houses in town, were appropriated for that purpose." The other answers are [**14]  silent as to the manner in which the assets have been expended, but state, that part of the real estate had been sold, and the proceeds of the sale applied to the maintenance, and education of the children. Eliza and Margaretta Wyse say, "they have been informed, and believe that a part of the real estate of their father, was sold after his death, by virtue of the decree mentioned by the complainants, and the proceeds of such sale, or a part thereof, was applied to the maintenance and education of these defendants, and the other children of William Wyse, deceased." John M. Wyse says, "a part of the land decreed to be sold, about 70 acres, was sold, and the money arising therefrom, was appropriated to the benefit of the children of William Wyse, deceased."

 [*304]  The answer of William A. Wyse, asserts the same facts. This allegation then, not being admitted by any of the defendants, and denied by one, it was incumbent on the complainants to sustain it by proof, and we have looked in vain to this record for such proof. The only evidence that looks to this question produced by the complainants, is the petition of Rachel, and John M. Wyse, to obtain [**15]  a decree for the sale of Deer Park, under the will of William Wyse, which so far from sustaining the idea, that the personal assets had been expended by her in maintaining the children, that she repels it, by stating how a part of those assets had been expended, and the manner the balance was to be appropriated--that she had already paid $ 1292 91--that there was a claim amounting to $     due to Smith and Buchanan, and that out of the balance then due to the estate, was to be deducted her commissions, and her third part as widow of the deceased, leaving two-thirds of the net balance for the support of the children of William Wyse. We therefore think the complainants have not shown themselves entitled to a decree, for the sale of the real estate of William Wyse, to discharge the claim set out in this record.
With this view of the case, the court deem it unnecessary to inquire, whether the alleged assignment, by Smith and Buchanan, of their claim to Tessier was proved, or what was the legal effect of the bond passed by Rachel Wyse, and John M. Wyse, to him.
If this bond did not extinguish the debt, as against the estate of William Wyse, (of [**16]  which we do not intend to give an opinion,) it certainly could not give Tessier any claim against the real estate of the deceased, that he did not before possess. A personal collateral security, given by the administratrix, for a debt due by the deceased testator, cannot operate to place a creditor in a better situation against the real estate of the deceased, than he was in without such security.
DECREE REVERSED, AND BILL DISMISSED WITH COSTS.  

31 of 43 DOCUMENTS 

JOHN ROBERTS, et al. vs. SALISBURY, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 425; 1831 Md. LEXIS 31 

December, 1831, Decided 

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

On the 1st February, 1814, the appellees, James Salisbury and others, the heirs and representatives of one Andrew Black, filed their bill against John Roberts, Isaac G. Roberts, and John Gooding, the appellants, alleging, that the said Andrew Black, and one Thomas Black, both deceased, were in their life-time seized, and possessed as tenants in common, of a certain tract of land in Cecil county. That being so seized, the said Andrew, on the 8th October, 1808, sold and conveyed his interest in said tract, to John Roberts, as will appear by a copy of the deed, exhibited with the bill; and that Roberts, for the purpose of securing to the vendor the payment of the purchase money, duly executed and acknowledged a deed of mortgage of the same land to him, on the same day, as by reference to a copy thereof exhibited, will be seen. That soon after the execution of the mortgage, the said Black died, and that a contest arose, and continued for a considerable space of time, as to the right to administration on his estate, by reason whereof, the time limited by law for the recording of said mortgage was suffered to pass by, without its being done. That [**2]  suits were instituted against the purchaser, on the bonds which he had given for the purchase money, upon which judgments were rendered at April term, 1812. That after the suits were brought, and shortly before the judgments were rendered, the said Roberts conveyed all his interest in the said lands, to his brother Isaac G. Roberts, of the city of Baltimore, which conveyance, the complainants charge to have been made without a valuable consideration, and to prevent the said land from being taken in satisfaction of said judgments; the said Isaac G. Roberts, being at the time beyond sea. That John and Isaac G. Roberts have since united in a deed of the same lands to John Gooding, the other appellant, and the complainants allege, and believe, that the said Isaac G. Roberts and John Gooding, at the respective periods, when the deeds were executed to them, well knew, that a mortgage had been given by said John Roberts, of the same land, to Andrew Black, and that the purchase money therefor had not been paid; and they further charge, that no valuable consideration passed from Gooding to the grantors. The bill then alleges, that but a small part of the purchase money had been paid to Black.  [**3]  Prayer. That the mortgage may be directed to be recorded, to have the same effect, as if it had been enrolled within the time required by law; and that the deeds from John to Isaac G. Roberts, and from John and Isaac G. Roberts, to John Gooding, be declared null and void; and for general relief.

The answer of John Roberts, after alleging that he had made to Black, sundry payments, on account of said land, asserted, that in the years 1808, 1809 and 1810, he became largely indebted to John Gooding, and respondent's brother Isaac G. Roberts, for merchandise, and responsibilities, which they had from time to time furnished, and assumed for him. That his debt to Gooding was upwards of $ 4000, and to Isaac G. Roberts, exceeding $ 2000, and that the debt to Gooding was guarantied by his brother; he the respondent having promised to indemnify him for his advances and engagement to Gooding. That in fulfilment of this promise, on the 24th March, 1812, during his brother's absence from the United States, he conveyed to him the land, which respondent had purchased from Black, and not for the purpose of evading the payment of the judgments, which complainants were about to get. The answer [**4]  denies, that Gooding, and Isaac G. Roberts, had at that time, any knowledge, so far as he is informed, of his, the respondents, having executed a mortgage of said lands to Black; on the contrary, he charges it as matter of belief, that they had no knowledge whatever on the subject, until sometime after the execution of his deed to Isaac G. Roberts, and the joint deed from Isaac G. Roberts and himself to Gooding.

The answer of Isaac G. Roberts stated, that upon the promise of his brother John to idemnify him, he consented to become his (John's) security, to various merchants in Baltimore, with whom he had dealings to a considerable amount; and also guarantied John Gooding for any credit he might procure for said John Roberts. That in this way the said John became indebted to him in a sum exceeding $ 2000, and placed him under a responsibility to Gooding, for upwards of $ 4000. That whilst the defendant was on a voyage to Europe, in 1812, the said John, in compliance with frequent promises to that effect, conveyed to him the land, which he John, had purchased of Black, and he positively denies any knowledge before, or at the time of the execution of said deed, and for a considerable [**5]  time afterwards, of any claim by way of mortgage, or lien of any kind outstanding, or in execution. And knowing that said conveyance was made principally for the use and benefit of Gooding, he proposed to him, that if he would release this defendant from his aforesaid liability, he would convey the said land to him, and upon Gooding consenting to do so, he and his brother John united in a deed bearing date 5th June, 1812, by which the whole interest in the said land was conveyed to Gooding. The defendant then avers, that the first knowledge he ever had of the mortgage to Black, was derived from Gooding, a considerable time after the date of the last mentioned deed, when Gooding had gone to Cecil county, for the purpose of forbidding a sale of the land, which it was understood the representatives of Black were endeavoring to make.

The answer of Gooding, after stating the amount of his advances and liabilities for John Roberts, (in which it corresponds with the other answers,) and also the responsibility of Isaac G. Roberts over to him, proceeds to say, that it was not until some time after the execution of the deed of John and Isaac G. Roberts to him, that he had any knowledge [**6]  whatsoever, that the mortgage to Black had been executed by John Roberts, or doubted, but that the said John had an unquestionable, legal, and equitable title to said land. The defendant denies, that at any time prior to the date of the deed to him, he had any notice from Andrew Black, the representatives of Andrew Black, or any person on their behalf, that they had any legal title, or equitable claim, or lien on said tract of land; nor did he know, that his title to the same, would be contested by those representatives, until long subsequently, when an attempt was made by them, to sell it under their judgment against John Roberts.

A commission issued by consent to take proof.

Nathan Baynard, a witness examined on the part of the complainants, proved, that subsequently to the 5th June, 1812, and when he was in pursuit of the sheriff, for the purpose of having the lands in the proceedings mentioned, located, in order to sell them in satisfaction of the judgments against John Roberts, he (the witness being the plaintiff's agent) met with John Gooding, with whom he had a conversation to the following effect. "The witness mentioned the subject of the fieri facias to said Gooding,  [**7]  who insisted he had a right to secure the money due him from Roberts. The deponent then observed, it would be a great hardship for the heirs to lose the purchase money of this land; inasmuch as he, Gooding, had not trusted John Roberts on the faith of it. Deponent also mentioned, that he had then in his possession that, which would secure the money, if he failed with the fieri facias. Gooding asked what it was, and this deponent told him it was a mortgage deed, to which Gooding replied, it was of no value, he did not care for it, and had the opinion of the best counsel in the state, that it was good for nothing. After some further conversation, deponent asked him if he had not a knowledge of the mortgage deed. He did not immediately give a direct answer, and deponent then inquired of him again, if he did not know of the existence of the mortgage deed. Gooding answered that he did." It was also proved, that Gooding was the uncle of John and Isaac G. Roberts, and that from the year 1808 to 1812, the mortgage from John Roberts to Black, was a good deal talked of in the county in which the land lies, and at the house of John Roberts, where Isaac G. Roberts, within the aforesaid period,  [**8]  was frequently seen.

BLAND, chancellor, on the 23d November, 1829.

This case standing ready for hearing, and having been by the agreement filed on the 20th inst. submitted without argument, the proceedings were read and considered.

It appears that the late Andrew Black and Thomas Black, being seised in fee, as tenants in common of a certain tract of land, Andrew Black sold and conveyed his undivided interest in it, to the defendant, John Roberts, and on the same day took from him a mortgage of it, to secure the payment of the purchase money, which mortgage deed has not been recorded according to law, nor has the whole amount of the purchase money been yet paid; after which purchase and mortgage, John Roberts conveyed the land to the other defendant, Isaac G. Roberts, and then they, John and Isaac, joined in a conveyance of it to the other defendant, John Gooding. The answers aver, that Isaac G. Roberts and John Gooding, had no knowledge of the mortgage at the time the conveyances were made to them, but they do not say, that they did not then know that the purchase money had not been paid by John Roberts. So far as regards their denial of any knowledge of the mortgage,  [**9]  these answers are contradicted by the positive testimony of the witness, Nathan Baynard, who declares that John Gooding admitted that he had known of the mortgage; and from the circumstances of John and Isaac G. Roberts being brothers, and also the nephews of Gooding, and the mortgage having been frequently spoken of in a public manner at the house of John Roberts, where Isaac G. Roberts often visited his brother, and from other particulars related by the witnesses, I am satisfied that John Gooding and Isaac G. Roberts must be considered as purchasers, with full notice of the vendor's lien, and of the mortgage which had accrued or been given to secure the payment of the purchase money; and that under the one or the other, the land was bound for the payment of the purchase money to the representatives of the late Andrew Black. But the defendant, John Roberts, avers, and the plaintiffs admit, that some part of the purchase money has been paid, and yet there is no proof of the time, or amount of any payment. The case must therefore be referred to the auditor, to ascertain the amount now due to the plaintiffs, for the undivided share sold by their ancestor and intestate, Andrew Black.  [**10]  

Whereupon it is ordered that this case be, and it is hereby referred to the auditor, with directions to state an account from the pleadings and proofs now in the cause, and such other proofs as may be laid before him; and the parties are hereby authorized to take testimony in relation to said account before the auditor as usual, or before any of the commissioners appointed by this court, or before a justice of the peace, &c.

From this decree the defendants appealed to the Court of Appeals.  

DISPOSITION:
APPEAL DISMISSED.  

HEADNOTES:

An implied lien for the purchase money of land where the vendor has parted with the legal title, will not be enforced against a subsequent purchaser, without notice.

The vendor of land who parted with the legal title, and took a mortgage of the same land from his vendee, which he neglected to record in due time, cannot enforce his mortgage against a subsequent purchaser from the vendee, without notice.

An answer flatly denying an allegation in a bill, can only be overruled by the positive testimony of two witnesses, or of one aided by pregnant circumstances--such circumstances standing alone, without the aid of positive testimony, will not destroy the effect of an answer.

Upon a bill to record a mortgage against subsequent purchasers charged with notice, the chancellor, when the case stood ready for hearing, said in his remarks preparatory to the order appealed from, "I am satisfied that the defendants must be considered as purchasers with full notice of the vendor's (the complainant's) lien, and of the mortgage which had been given to secure the payment of the purchase money, and that under the one or the other the land was bound," but passed no order directing the mortgage to be recorded. The order passed in the cause, only referred the case to the auditor, with the usual directions to receive further proof, and state an account. HELD, that nothing had been done conclusive upon either the chancellor or the parties--no question of right had been settled, and that an appeal would not lie at that stage of the cause.  

COUNSEL:
R. B. Magruder for the appellants.

1. The answers of the defendants being uncontradicted, except by a single witness, and not directly contradicted, ought to have been held sufficient to prevent a decree against the defendants below. 2. That there were no circumstances which, taken together with the testimony of the witnesses, ought to have discredited the answers sufficiently to authorise the decree of the chancellor against the defendants.

No counsel argued for the appellees.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*432]  BUCHANAN, Ch. J., delivered the opinion of the court.
It appears that  [**11]  Andrew Black, having sold and conveyed to John Roberts his interest in a tract of land, took from him on the same day a mortgage of the same land to secure the payment of the purchase money, which deed of mortgage has not been recorded; that afterwards, John Roberts, the mortgagor, conveyed the same land to Isaac G. Roberts, and that subsequently, John and Isaac G. Roberts united in a conveyance of it to John Gooding. The object of the bill, in which it is stated that the purchase money of the land for which the mortgage was given has not been paid, and that Isaac G. Roberts and John Gooding, when the conveyances were respectively made to them, had a knowledge of that fact, and also of the existence of the mortgage, is, to have the mortgage deed recorded, and the deeds from John Roberts to Isaac G. Roberts, and John Roberts and Isaac G. Roberts to John Gooding, vacated. Isaac G. Roberts and John Gooding in their answers flatly deny any knowledge of the existence of the mortgage, when the conveyances to them were respectively made; and we think they equally deny a knowledge of the existence of a lien of any kind whatsoever.  [**12]  Nor can we perceive any thing in the evidence, to show that either of them had before, or 

 [*433]  at the time of the execution of the deed to Gooding, any knowledge that the purchase money, or any part of it, remained unpaid by John Roberts. An answer flatly denying an allegation in a bill, can only be overruled by the positive testimony of two witnesses, or of one, aided by pregnant circumstances, neither of which will be found to exist here, in relation to the denial by Isaac G. Roberts and John Gooding, of any knowledge of the mortgage, when the conveyances were respectively made to them. One witness, it is true, and only one, does swear that in a conversation with Gooding, he admitted that he had at that time a knowledge of the existence of the mortgage deed; but that was some time after the execution of the deed to him, and about the time at which he says in his answer he first acquired a knowledge of the mortgage, and does not carry back his knowledge of the mortgage, to the time of the conveyance to him. The testimony therefore of the witness, does not contradict, but is consistent with the answer; and if there were pregnant circumstances, which we do [**13]  not wish to be understood as affirming, yet standing alone, without the aid of the positive testimony of a single witness, they would be unavailing. Nor is there the positive testimony of a witness, to show by the admissions of Isaac G. Roberts, or otherwise, that he had any knowledge of the existence of the mortgage at the time in question; we should therefore say, that in our opinion, Isaac G. Roberts and John Gooding are not to be considered and treated as purchasers with notice. But we think that the appeal has been improvidently taken; there has been no decision in chancery settling or binding the rights of the parties.
The chancellor has, it is true, in his remarks preparatory to the order appealed from, said, he is "satisfied that John Gooding and Isaac G. Roberts must be considered as purchasers, with full notice of the vendor's lien, and of the mortgage which had accrued or been given to secure the payment of the purchase money, and that under the one or the other, the land was bound for the payment of the purchase 

 [*434]  money to the representatives of the late Andrew Black;" but he has passed no decree directing the deed of mortgage from  [**14]  John Roberts to Andrew Black to be recorded, or vacating and annulling the deeds from John Roberts to Isaac G. Roberts, and from John Roberts and Isaac G. Roberts to John Gooding, or either of them; but has passed an order only, referring the case to the auditor, with directions to state an account for the purpose of ascertaining the amount of the purchase money due to the complainants.
It is to be presumed, from the intimation given by the chancellor of his opinion, that it was his intention at that time, to decree relief to the complainants, at the final hearing. But he had not reached that stage of the cause to which the order in question was only preparatory, and might before the final hearing, have taken a different view of the case, and decreed accordingly. Nothing had been done conclusive, upon either the chancellor or the parties; no question of right had been settled: but upon further consideration he might, after an account taken in pursuance of the order, have rejected it and dismissed the bill, had not the proceedings been arrested by the appeal. It is not like the cases of Thompson vs. M'Kim, et al. 6 H. & J. 302, and Williamson vs. Carnan, 1 G. & J. 184, [**15]  where the rights of the parties were adjudicated upon, but cannot be distinguished in principle from Snowden, et al. vs. Dorsey, et al. 6 H. & J. 114, which has since been followed up by Hagthorp, et ux. et al. vs. Hook's adm'r, 1 G. & J. 270, and Danels vs. Taggart's adm'r, 1 G. & J. 311, and Hungerford vs. Bourne, 3 G. & J. 133. The appeal therefore is dismissed with costs.
APPEAL DISMISSED.  

32 of 43 DOCUMENTS 

DANIEL CARROLL of Duddington, vs. LEE, adm'r of LEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 504; 1832 Md. LEXIS 2 

June, 1832, Argued 

June, 1832, Decided 

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

The present bill was filed by the appellee, Wm. Lee, as administrator of Mary Lee, on the 1st November, 1827, against the appellant, and one Daniel C. Sim. The bill stated, that a certain Ignatius Digges, of Prince George's county, in the state of Maryland, being possessed of a large quantity of silver plate, by his last will and testament, dated in 1784, (a copy of which is exhibited with the bill,) bequeathed the same to his wife, Mary Digges, for life, remainder to his grand-son, Ignatius Digges Lee; but in case he should die before he attained the age of twenty-one, or unmarried, then to Mary Lee, the intestate of complainant, and her heirs; that Mary Digges, the wife of the testator, and the executrix named in his will, took out letters testamentary, and assumed the burden of the execution thereof; that Ignatius Digges Lee, died before he attained the age of twenty-one years, and unmarried, after which Mary Digges delivered to the intestate of complainant, sundry pieces of the plate, thereby recognizing the authority of Ignatius Digges to dispose of it; that Mary Digges has since departed this life, having made and duly executed her will,  [**2]  of which Daniel C. Sim is the executor, and bequeathing to Daniel Carroll, (the appellant,) of the District of Columbia, a considerable portion of the aforesaid plate, (which the bill enumerates,) and which her executor accordingly handed over to Carroll, the legatee, who is now in possession of the same, claiming title thereto, under the will of the said Mary Digges.--PRAYER, That said Carroll, and Sim, the executor, may be decreed to deliver complainant the pieces of plate aforesaid, of which they may respectively be in possession, or pay the value thereof, and for general relief; and an order for publication is prayed against Carroll.

Carroll, in his answer, says, that he resides out of the State of Maryland, and that the whole subject matter of the suit, was, at the time of filing the bill, and now is, beyond the limits of this State, as the complainant in his bill charges; he therefore objects, and pleads to the jurisdiction of the court, in the premises. The answer then admits, that Ignatius Digges died as stated, having by his will, of which his wife, Mary Digges was executrix, bequeathed the plate, as the bill charges; that Ignatius Digges Lee, died under twenty-one years [**3]  of age, and unmarried, and that complainant is the administrator of Mary Lee; that he the defendant holds the plate under the will of Mary Digges, who died in 1825, to whom it properly belonged; that it was in no wise subject to the will of her husband, Ignatius, even though she might have been in possession of it during his life-time, as in that event, it constituted a portion of her paraphernalia, over which her husband could exercise no control, by any attempted testamentary disposition. The jurisdiction of the court was also objected to, upon the ground, that the subject matter of the controversy is cognisable in a court of common law. The answer denies that Mary Digges delivered any portion of said plate to Mary Lee, in pursuance of the provisions of her husband's will, or that she ever, in any way, acquiesced in the power assumed by him in his will, to dispose of the same, if his will does in fact assume such power. It also denies, that the limitations in the will are valid and effectual, in reference to such property, to vest the title in Mary Lee, although the intention of the testator may have been such as the complainant assumes it to have been, on the contrary, the answer [**4]  insists that Mary Digges, the first taker, took an absolute and indefeasible estate therein.

The answer of Sim, the executor of Mary Digges, admits the execution of the wills, and the deaths of the several parties, as stated: that he had delivered a portion of the plate, as the bill charges, to Carroll, the other defendant, in compliance with the will of his testatrix, in which he insists he was justifiable, as the same was given to his testatrix by her brother, after her intermarriage with Ignatius Digges, and was always, during her life, considered by her, as her sole and separate property.

It was proved, under a commission, that the plate in question was given to Mary Digges by a brother, during her coverture.

BLAND, chancellor, at December Term, 1830, decreed, that the defendants, Daniel C. Sim, and Daniel Carroll, of Duddington, forthwith transfer and deliver over to the plaintiff, the several pieces of silver plate, in the proceedings mentioned, which have been hitherto held and detained by the said defendants, and that they pay the plaintiff his costs.

From this decree the defendant, Carroll, appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A separate estate in a wife, in personal chattels, was unknown to the common law; like her person, her property was under the control of her husband.

A separate property may now be held by a married woman, through the intervention of a trust, and even without the interposing office of a trustee.

To exclude the marital rights over her property, a clear intention in the donor, that it shall be for her separate use, must appear. No technical words are necessary, but adequate language must be employed in making a gift, to manifest a decided intention to transfer a separate interest.

A gift of plate to a married woman, unexplained as to intention, is a gift, to which the marital rights instantly attach, and the thing given, immediately becomes the property of the husband.

When property in controversy is within the limits of the State, and the claimant resides abroad, the Chancery Court has an undeniable jurisdiction over the case.

So, where the defendant is within the State, and the land, or other property in contest, is beyond its limits, although the proceeding is in rem, the Court of Chancery has jurisdiction. To enforce a decree in such a case, the proceeding may be in personam, as well as by injunction, to recover the possession of the thing disputed.

Where the property has been removed from the State, and the defendant resided out of its limits, his appearance to the suit, and answer to the bill, for the purpose of contesting the merits, is waiver to any objection to the jurisdiction of the court, although in his answer he also excepts to it.  

COUNSEL:
Speed, for the [**5]  appellant, contended,

1. That the complainant had a legal remedy. 2. That the plate being the paraphernalia of the wife, the husband could not dispose of it by will, though by the same will, a benefit might be conferred upon, and enjoyed by her. Brinkman vs. Brinkman, 3 Atk. 358, 394. 2 Ib. 79. 2. He argued, that a present to a wife, by a stranger, during coverture, is a gift to her separate use, and the husband has no control over it. 3 Atk. 93. 3. Carroll, the defendant, and the subject of the suit, being both beyond the limits of the State, the court has no jurisdiction.

No counsel argued for the appellee.  

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

OPINIONBY:
EARLE 

OPINION:

 [*507]  EARLE, J., delivered the opinion of the court.
The pieces of plate which form the subject of dispute between the parties in this case, are claimed by the appellee, under the will of Ignatius Digges, and by the appellant, Daniel Carroll, of Duddington, under the will of Mary Digges, the surviving wife of Ignatius Digges. What were the respective rights of these testators, while living, 

 [*508]  to this property, presents the inquiry at this time first [**6]  to engage the attention of the Court of Appeals. All the testimony in the cause, was taken on the part of the appellee. From this it appears, that the disputed plate was given to Mary Digges, by one of her brothers, after her marriage with Ignatius Digges; and the question we have to decide, is, whether by the gift it became her sole and separate property, or devolved on her husband, and made a part of his personal estate. A separate interest in a wife in personal chattels, was unknown to the common law. Like her person, her property was under the control of her husband. This strictness has been much relaxed by the decisions of the courts of equity. It is now fully established, that a separate property may be held by a married woman, through the intervention of a trust, and even without the interposing office of a trustee. To exclude, however, the marital rights over her property, a clear intention in the donor, that it shall be for her separate use, must appear. No technical words are necessary to create a separate use, but adequate language must be employed, in making the gift, to manifest a decided intention to transfer a separate interest; to shew that the husband was [**7]  not to enjoy what the law would otherwise give him.
Is this the character of the gift we have now to review? It was made, it is presumed, by parol, and many years have elapsed since it was made. What the declared intention of the giver was, if his intention was expressed, is lost in time, and must forever remain a secret to us. All we know is, it was a present of plate from a brother, to a married sister. Can we, from this circumstance of relationship, and from the nature of the subject given, infer an intention in him, to give it to her, for her separate property? This is the particular point that awaits our decision, and it does not seem to us, that we need be slow in giving it. It is plain, this naked gift does not justify an inference, that it was her brother's decided intention to give to Mary Digges this plate, for her sole, separate use. We are aware of the case 

 [*509]  of Brinkman vs. Brinkman, adverted to in 3 Atk. 392, where such a gift of plate, from the father of the husband to the wife, immediately on her marriage, was construed to pass the property to her separate use; but we do not feel disposed to yield to it, as an authority. It is a case [**8]  not regularly reported, and in our apprehension, the subject matter of the gift does not justify the inference, that it was designed for the separate use of the wife. We consider plate as an article of family use, and one that makes as much a part of the household, as any that belongs to it. It is then our opinion, that a gift of plate to a married woman, unexplained as to intention, is a gift to which the marital rights instantly attach, and that the thing given immediately becomes the property of the husband.
There is a further question in this case, that requires a moment of our attention. It arises out of the plea put in by the appellant, to the jurisdiction of the court. The plea states the facts, which are conceded by the pleadings, that at the time of filing the bill, the appellant resided in the District of Columbia, where he had in his possession the plate sought to be recovered. Ought the chancellor to have disregarded the plea, and decreed, as he did, the delivery of the plate, is then the point of inquiry? Where property in controversy is within the limits of the State, and the claimant resides abroad, the Chancery Court has an undeniable jurisdiction over the case.  [**9]  1 Atk. 19. 2 McCord 436. So where the party defendant is within the State, and the land, or other property in contest, is beyond its limits, although the proceeding is in rem, we apprehend there is no want of jurisdiction in the chancellor. To enforce a decree in a case of this kind, the proceedings may be in personam, as well as by injunction, to recover the possession of the thing disputed. This is the case of Penn vs. Lord Baltimore, 1 Ves. 454, where Lord Hardwicke held, that the property in dispute being in the Plantations, was no legal impediment to making the decree, the parties to the suit being in England. 

 [*510]  The subject before us, however, is supposed to afford a stronger case, inasmuch as both the party and property were without the limits of Maryland, at the institution of the suit, of which the defendant was notified by an order of publication. There might be something, perhaps, in this concurrence of facts, if the property had not been removed out of the State, and the appellant had not appeared and answered the bill, as well as except to the jurisdiction. This he did, and contested the [**10]  question of merits before the chancellor, whether the complainant had a right to recover; and if the decree had been in his favor, would assuredly have forced his adversary into the Court of Appeals, or forever barred him from a further suit for the same property. To say nothing of the effect of the answer upon the plea, this, we conceive, is a waiver of it, and a submission to the jurisdiction, and brings the subject as much within the power of the court, as in the case of Penn vs. Lord Baltimore, where the party resided within the chancery jurisdiction.
DECREE AFFIRMED.  

33 of 43 DOCUMENTS 

ROBERT ARMSTRONG vs. ROBERT & THOMAS ROBINSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 412; 1833 Md. LEXIS 16 

December, 1833, Decided 

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

This was an action of Debt, instituted by the appellees against the appellant, on the 22d of March, 1828, on a bond signed and sealed by "Robert Armstrong & Co." in favor of "Robert Robinson & Co." bearing date on the 18th May, 1827, in the penalty of $ 5000, to be paid in three months from the date thereof, conditioned as follows. "The condition of this obligation is such, that whereas several difficulties exist in the settlement of monied and commercial concerns, between the above named Robert Armstrong & Co. and the said Robert Robinson & Co., and they the said parties have mutually agreed, that John Keys and Thomas Kelso shall adjust and settle the above mentioned accounts, with the privilege of calling in a third person if necessary, and if the above bounden Robert Armstrong & Co. comply with the award of the above named arbitrators, the above obligation to be void, &c."

The declaration after reciting that the appellant, Robert Armstrong, by the above bond, acknowledged himself to be bound to the appellees, Robert Robinson & Thomas Robinson, in the sum of $ 5000, by the name, and style of Robert Robinson & Co. proceeded to aver, that [**2]  the arbitrators duly made, and delivered their award on the 22d day of March, 1828, and did then and there award, order, and direct, that the said Robert Armstrong should pay, or cause to be paid by the said Robert Armstrong & Co. to the said Robert Robinson & Co. the sum of $ 4500, in full settlement of all the claims, accounts, and demands whatsoever, between the said Robert Armstrong & Co. and the said Robert Robinson & Co. up to the 18th of May, 1827, and arising out of the commercial and monied transactions between said companies; with a clause providing for mutual releases, &c." The breach assigned was, that Robert Armstrong had not himself paid, or caused Robert Armstrong & Co. to pay the amount of the award.

After Oyer, the defendant pleaded that the arbitrators did not within three months from the date of the said writing obligatory make an award, &c.

The plaintiffs demurred generally to this plea, and the defendant joined in the demurrer.

The county court ruled the demurrer good, and gave judgment for the plaintiff; upon which the record was, upon the appeal of the defendant, brought to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where a bond was conditioned to perform an award to be made by arbitrators, and the condition (which recited the submission) was silent as to the time at which the award was to be rendered, the circumstance that the penal part of the bond acknowledged the sum "by us (the obligors) to be paid to the said R three months from the date hereof," cannot avail, to engraft a limitation upon the power of the arbitrators, and make an award rendered after the expiration of three months void.

Where a bond was payable to R & Co. a declaration stating, that A acknowledged himself to held and firmly bound unto T R & R R, by the name and style of R & Co. is sufficient, and this is no variance.

In actions founded upon contract, whether by parol or deed, if the demand or cause of action be joint, all the parties, if alive, must join in bringing the action, which should properly be in their names, and not in the name of the company or firm, where it is a company or firm, that has the cause of action.

In actions upon the contract, where all the parties do not join as plaintiffs, the defendant may avail himself of the non-joinder upon proof at the trial, or he may plead such matter in abatement, or if it appears on the record by the pleadings, he may take advantage of it by demurrer.

In a suit on a bond signed A & Co. the writ and declaration were against A only; the court will not upon general demurrer assume, that there was any other living person jointly bound with A at the time the suit was brought, nor that A was not A & Co.

In declaring on a bond it is not necessary to set it out in haec verba, but it is sufficient if it is stated according to its true legal effect and operation.

One partner cannot bind another by his bond sealed in the name of the firm, to perform an award, though the bond is binding upon the party who seals it, and may be declared upon accordingly.

An award must pursue the submission, or it is bad.

Where the condition of a bond was, that A & Co. should comply with the award of abitrators, and the award was that A (who in fact signed the bond as A & Co.) should pay, or cause to be paid by A & Co. a sum of money in full settlement of the matters submitted, this was held in effect, an award that A & Co. should pay, or considering the bond as A's sole obligation, and as a stipulation that he should pay, then the award was within the condition, and in either case sufficient.  

COUNSEL:
Gill and Campbell for the appellants,  [**3]  contended.

1. That upon the true construction of the bond, it was the intent of the parties, that the arbitrators should make an award within three months from its date. The object of arbitrations is to accelerate the settlement of controversies; and the court will look into the bond for expressions indicative of an intention to limit the arbitrators, in reference to the time of making their award. The only words in this bond from which such intention can be deduced, are the words, "to be paid in three months," and as these are introduced in the obligatory part of the instrument, and of course could not have been intended to favor the obligor by giving him a credit, they must have been designed to limit a period within which the award was to be made.

2. The award is not within the submission. The bond is signed by Robert Armstrong & Co., and the award is to be performed by Robert Armstrong. Robert Armstrong, and Robert Armstrong & Co. are not the same persons; nor is there any averment in the pleadings that they are the same. The word "company," imports that some one was associated with Robert Armstrong. Mitchell vs. Dall, 2 Harr. and Gill, 170.

3. The bond given on [**4]  oyer does not conform to the bond declared upon. The declaration is upon the individual bond of Robert Armstrong, whilst the bond produced on oyer is by Robert Armstrong & Co. There is no averment that Robert Armstrong is a member of the firm of Robert Armstrong & Co. That he signed it for the firm, and therefore it will not do to say, that it is his individual bond, though signed in the partnership name. Sheehy vs. Mandeville, 7 Cranch, 217. Ferguson vs. Harwood, Ib. 413. Bonner vs. Wilkinson, 5 Barn. and Ald. 682. Henry vs. Brown, 19 Johns. Rep. 50. Gould vs. Barnes, 3 Taunt. 503. Cooke vs. Graham, 3 Cranch, 229. Bonner vs. Wilkinson, 7 Serg. and Low. 231. McNitt vs. Clarke, 7 Johns. Rep. 467.

4. There is a variance also in this, that the declaration avers that the defendant bound himself unto Thomas Robinson, and Robert Robinson, by the name and style of Robert Robinson & Co., when in fact the obligation is to Robert Robinson & Co. If the fact be, that Robert and Thomas Robinson, are Robert Robinson & Co. it should have been so averred, that an issue might have been taken upon it; instead of which the declaration is so framed, as to make it a question of legal construction [**5]  for the court, and not of fact for the jury.

5. These objections to the plaintiff's right to recover, are open to the defendant upon the present state of the pleadings. Cooke vs. Graham, 3 Cranch, 229. Wardell vs. Pinney, 1 Wendell, 218. Manhattan Co. vs. Ledyard, 1 Caine's Rep. 192. Ehle vs. Purdy, 6 Wendell, 630. Gould vs. Barnes, 3 Taunt. 503. 1 Chitty Pl. 336, (Ed. 1833.) Moore vs. Fenwick, Gilmor's Rep. 217.

6. The breach is not properly assigned. It is for the failure of Robert Armstrong to perform the award, when it should have been that of Robert Armstrong & Co. 1 Chitty Pl. 615, (Ed. 1833.) 2 Harr. Ent. 562. 2 Chitty Pl. 619, (Ed. 1812.) 1 Saund. 317, (note 1.) 1 Saund. Rep. 103, (note 1.)

Johnson and McMahon, for the appellees.

1. The first question is, what is the true construction of the bond sued on? Though the obligatory part of an arbitration bond is in praesenti, its legal obligation is to perform the award when it shall be made. The obligatory part therefore, is not to be referred to for the contract of the parties; but the condition which contains the submission. The stipulation therefore, that the award should be paid within three months from [**6]  the date of the bond, cannot refer to the time within which the award was to be made; as if so, the defendant might be deprived of the benefit of it, because as the submission does not say when the award should be made, it might have been made the next day, and then the bond would have been immediately suable. This stipulation was for the benefit of the defendant, and was designed to give him three months to pay the bond in. Where no time is limited for making the award, the arbitrators have what time they please. Caldwell on Awards, 46.

2. It is alleged, that there is a variance between the bond produced on oyer, and the bond declared on. That the declaration is on the individual bond of Robert Armstrong, and the bond offered is the bond of Armstrong & Co. The objection is, that there are other defendants who ought to have been joined. But this, if so, should have been pleaded in abatement, though the contract itself shows that there are absent parties. This rule is universal, except where the plaintiff's declaration shows that there are other parties then liable to be sued. If the declaration only shows that there are other parties, and not that they are then liable to be sued,  [**7]  the objection must be taken by plea in abatement. Brown vs. Warram, 3 Harr. and Johns. 572. 1 Saund. 288.

The demurrer admits all the facts contained in the plea, which are well pleaded. That is, it admits every fact which the party, whose plea is demurred to, might give in evidence in support of it, if it was denied. By the demurrer in this case, the defendant has no defence which would not be open to him upon the plea of non est factum; and the question is, whether upon that plea, the variances complained of would be fatal to the plaintiff's right to recover. Now can there be a doubt, that upon such a plea, the plaintiffs might prove that the defendant alone signed the bond, even although the words "& Co." meant another party? It would still have been the bond of the party who signed it, and the plea of "non est factum" would not avail him. A partner without authority, cannot bind his co-partner by deed, though it binds himself. Kidd, 42. A plaintiff is never required to insert more in his declaration than gives him a good prima facie case. Defensive matters must come from the defendant. If therefore, other persons signed the bond, it should be alleged by the defendant in his [**8]  plea. The court will not intend it. 1 Saund. 288. If the alleged variance is fatal on demurrer, then you deprive the plaintiff of the privilege of proving that no one signed the bond but the defendant, though if that was in fact the case, he alone would be responsible.

The presumption that the words "& Co." include other persons, is not a legal presumption, and as such conclusive. It is at best, but a presumption of fact which may be rebutted. The court cannot intend as a legal presumption, that there was another person beside Robert Armstrong who signed the bond. 1 Peters' S. C. R. 222. Even if there was another person, he would not be bound, unless he authorized the party to sign for him, and the defendant must show the authority by his plea. Cutter vs. Whittemore, 10 Mass. Rep. 444. The variance must be in a material part of the bond. If the legal effect is stated, it is sufficient. Fergusson vs. Harwood, 7 Cranch. 408, 413, 414. The court always views awards with great favor. Archer vs. Williamson, 2 Harr. and Gill, 62. Cromwell vs. Owings, 6 Harr. and Johns. 10.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*418]  BUCHANAN,  [**9]  Ch. J., delivered the opinion of the court.
The first question raised upon the pleadings in this cause is, whether according to the proper construction of the arbitration bond on which the suit is brought, the award should not have been made within three months from the date of the bond.
No time is limited in the condition of the bond for making the award, but the argument on the part of the appellant, in support of the affirmative of the proposition, is drawn from the words, "by us to be paid to the said Robert Robinson & Co. three months from the date hereof," to be found in the obligatory part of it. At first blush there would seem to be something in it, and as if the obligation to pay, three months from the date of the bond, looked to the award being made within that time; the intention being, that the bond should not become absolute before an award should be made. But if the words, "by us to be paid three months from the date hereof," had been 

 [*419]  altogether omitted, and no time of payment mentioned, so that as in the case of an ordinary bond, without any limitation of time in the condition for the payment of the money, looking to the language of the obligatory part [**10]  of it only, it would have been payable immediately, it would scarcely be said that the award was required to be made instanter,--complicated commercial transactions constituting the subject of the submission; and that if not so made, the bond would have become inoperative, and that no suit could have been sustained upon it, for the non-compliance with an award made three days afterwards. Such a construction could never be given to such a bond, which would be to render it a nullity from the moment of its execution. But being an undertaking for the performance of an award to be subsequently made, though payable on its face immediately, it only becomes absolute on the failure, or refusal of the obligor to perform the award when made, which must be done within the time limited in the condition, if there be such a limitation of time; and if not, then at any indefinite time. The limitation of the time for making the award (where there is any,) being always in the condition of the bond, that being one of the offices of the condition. And it is wholly immaterial whether there be any time of payment specified in the obligatory part of the bond or not; since it is not on the failure of the [**11]  obligor, to pay the amount of the sum mentioned in the bond that his liability attaches, but on his failure only to perform the award. His obligation being not to pay the sum mentioned in the bond, at the expiration of the time specified, but to perform the condition on pain of forfeiting the penalty. The object, therefore, of introducing the words, "by us to be paid three months from the date hereof," must be understood to have been to protect the obligor against an action upon the bond, before the expiration of that time, in the event of an award being made within the three months, which may have been thought probable by the parties. And after the expiration 

 [*420]  of the three months, the bond stood as if no such words had been used; and as if they had been originally omitted, awaiting the action of the arbitrators, and the violation of the condition by the obligor, to give to the obligees a right of action; which could only accrue on such violation, in neglecting or refusing to perform the award when made, until when, it gave to the obligees no action, or demand against the obligor. And no time being limited in the condition for the making the award, the arbitrators named [**12]  had their own time for doing it, without being restricted to three months as has been supposed. It cannot be denied, that though the time of payment mentioned in the bond, is three months after the date, if the time for making the award had been limited in the condition to six months, (which might well have been,) and the award had been made at any time after three months, but within six months, it would have been good, and within the submission. And the only difference is, that here no time is limited in the condition, and therefore a greater latitude is given.
The bond was given by Robert Armstrong & Co. to Robert Robinson & Co. The suit is against Robert Armstrong, and the declaration alleges, that Robert Armstrong acknowledged himself to be held, and firmly bound unto Thomas Robinson and Robert Robinson, by the name and style of Robert Robinson & Co. &c. &c. It is difficult to believe, that the objection raised to this mode of declaring was seriously made, or much relied upon.
It is an established rule, that in actions founded upon contract, whether by parol or deed, if the demand or cause of action be joint, all the parties, if alive, must join in [**13]  bringing the action, which should properly be in their names, and not in the name of the company, or firm, where it is a company, or firm, that has the cause of action; and that, as far as appears from the record, is what has been done here; the appellees, Thomas and Robert Robinson, alleging in their declaration, that the undertaking was to them by the name and style of Robert Robinson & Co. 

 [*421]  If Thomas and Robert Robinson, are not the only members of the firm of Robert Robinson & Co. to whom the bond was given, the appellant might have availed himself of the non-joinder, by proof at the trial, or he might have pleaded that matter in abatement, which was not done. And if it had appeared on the record by the pleadings, he might have taken advantage of it by demurrer. But not appearing on the record, even if the fact exists, it cannot be reached by the demurrer in this case, and the mere mode of declaring is not obnoxious to any objection arising upon the demurrer. It is a correct mode of declaring, and it is always sufficient, if the plaintiffs are proved to be the members of the company or firm, and the persons meant by the name and style used in [**14]  the instrument.
Whether the suit was properly instituted against Robert Armstrong, is a question not open on the demurrer. It does not appear on the record, that there was any other person jointly bound in the bond with Robert Armstrong, who was living at the time the suit was brought, and who should have been joined in the action. It does not appear upon the record, nor is it a presumption of law, that Robert Armstrong, and Robert Armstrong & Co. are not one, and the same person, or that there was any other person living at the time the suit was brought, belonging to that firm, and bound, by the bond, except Robert Armstrong; and not appearing on the record, if there was any such person so bound, and alive when the suit was brought, the appellant should have taken advantage of the non-joinder by a plea in abatement. As to the supposed variance between the bond produced, and the bond declared upon, it is not perceived to exist. The profert brought the bond into court, and by the oyer it was spread upon the record, and made a part of the declaration to which the plea was pleaded. And being thus made a part of the declaration, and admitted by the plea of no award [**15]  within three months from the date, of and concerning the matters in the conditioned mentioned and referred, there is no variance between 

 [*422]  the bond declared upon, and the bond produced; the record showing the bond declared upon to be a bond of Robert Armstrong & Co., and the bond produced, being a like bond of Robert Armstrong & Co.
In declaring on a bond, it is not necessary to set it out it haec verba, but it is sufficient if it is stated according to its true legal effect and operation. If there were other persons than Robert Armstrong belonging to the firm, he was not competent to bind his partners to the submission. The bond therefore, though not binding on such partners, was his bond, and binding on him. And being his bond, it was declared upon according to its true legal effect. It makes no difference that it was given in the name of Robert Armstrong & Co., it was not the less his bond, and the suit could not properly have been brought against Robert Armstrong & Co., not being a corporation. It is objected that the award does not pursue the submission; and if so, it is certainly bad. It is necessary then to see what was submitted, and what [**16]  the arbitrators have awarded.
The submission is of "several difficulties existing in the settlement of monied and commercial concerns, between Robert Armstrong & Co. and Robert Robinson & Co." Robert Armstrong, by the name and style of "Robert Armstrong & Co." bound himself, that Robert Armstrong & Co. should comply with the award of the arbitrators, and the award is, "that Robert Armstrong shall pay, or cause to be paid, by Robert Armstrong & Co. to Robert Robinson & Co. the sum of $ 4500, in full of all claims, accounts, and demands whatsoever, between Robert Armstrong & Co. and Robert Robinson & Co., arising out of the commercial and monied transactions between the companies," with a provision for mutual releases between the companies, in relation to the matters submitted.
The award then being an adjustment of all the monied and commercial transactions, between Robert Armstrong & Co., and Robert Robinson & Co., it is so far, clearly within the submission. And as to the sum awarded to be 

 [*423]  paid to Robert Robinson & Co., it may be considered as in effect an award, that Robert Armstrong & Co. should pay it; being awarded [**17]  on account, and in full of all the demands against them, which were submitted to the arbitrators; and the direction being that Robert Armstrong shall pay it, or cause it to be paid by Robert Armstrong & Co.; or viewing it as an award that Robert Armstrong shall pay it, it does no more than follow the condition of the bond, which is, that Robert Armstrong & Co. shall comply with the award. He could not bind his partners if there were any others alive belonging to the firm; but he could, and did bind himself, (the bond according to its legal effect being his alone,) that Robert Armstrong & Co. should comply with the award of the arbitrators. He undertook in behalf of the company to submit the matters in dispute, which did not bind his partners, if he had any who were alive, but it bound him so far as his interest was concerned; and he might very well bind himself in an undertaking that the others, or that he and the others, should comply with the award. And being a party to the submission, and bound on behalf of the company, and the award being expressly upon the matters submitted, it is not a sufficient objection to the award, that it directs the money to be paid [**18]  by him, who on his own account, and on behalf of others, in nature of a surety was bound for the payment of it. The award, in directing that he shall pay the sum awarded, or cause it to be paid by Robert Armstrong & Co. only directs that he shall do what by his bond he bound himself should be done; and for the neglect or refusal to do which by the company, if the award had been that they should pay it, he would have been subjected to an action on the bond, and a payment of it would discharge the company from all liability to Robert Robinson & Co., on account of the matters submitted to the arbitrators. The award therefore, is in effect the same as if it had been that Robert Armstrong & Co. should pay.
Moreover, it does not appear from the record, (and the law does not presume it,) that there is any other person 

 [*424]  living than Robert Armstrong, belonging to the firm of Robert Armstrong & Co.; or that Robert Armstrong and Robert Armstrong & Co. are not one, and the same person. And in support of the award, it will be intended that they are; as if it was not so he must know it, and if material might have shown it, which he has not done. There is no [**19]  objection therefore, either to the award, or the breach assigned. Robert Armstrong, as far as appears upon the record, being the only person from whom the money directed to be paid was due; and the award that he shall pay, or cause it to be paid, &c. being in effect, a direction that he shall pay what he himself owes. And if the award had been that Robert Armstrong & Co. should pay, it would have been equivalent to a direction that he should pay.
JUDGMENT AFFIRMED.  

34 of 43 DOCUMENTS 

TRUMBO, Ex'r of NEFF vs. BLIZZARD & JACOBS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 18; 1833 Md. LEXIS 31 

December, 1833, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court as a court of Chancery.

The present bill was filed on the 28th May, 1829, by Henry Neff the appellant's testator, in his life-time to foreclose two mortgages, executed to him by the appellee John Blizzard, the one dated on the 25th April, 1818, the other on the 15th May, 1821, to secure the several sums of $ 1000 and $ 550, with interest, on the days therein limited.

The bill alleged that the appellee George Jacobs, was in possession of the mortgaged premises, claiming title thereto as the purchaser at a sheriff's sale, under a judgment rendered against the mortgagor, subsequently to the mortgages; which was admitted by the answers.

Both the answers alleged that the mortgages were given upon usurious considerations, and the answer of Jacobs relied on the plea of usury as a defence to the complainant's bill.

The evidence is sufficiently adverted to by his honor the chief judge, who delivered the opinion of this court.

The county court (ARCHER, Ch. J.,) on the 26th November, 1831, dismissed the bill with costs.

From this decree the appellant appealed to the court of Appeals.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

Where all usurious contracts are declared by law to be null and void, there can be no recovery either at law or in equity, in a suit instituted upon an instrument infected with usury, if the defence of usury be pleaded; the very instrument that is sought to be enforced being null and void.

When a mortgage is given on an usurious consideration, the plea of usury either by the mortgagor or his alienee, is a full defence to a bill for a foreclosure by the mortgagee.

But there is a recognized distinction between that and the case of a mortgagor who goes into Chancery, seeking relief against the mortgage on the ground of usury, which will only be extended to him on his paying, or offering to pay, the principal and legal interest of the sum due, and this on the principle, that he who seeks equity, to obtain relief must do equity.  

COUNSEL:
Gill, for [**2]  the appellant contended.

1. That the defence of usury set up by the answers is not sustained by the evidence.

2. That John Blizzard was not a competent witness for the defendants. It is his debt, and he is interested in the event of the suit, being responsible for costs. Chambers vs. Chambers, 4 Gill and Johns. 420.

3. That although the defence of usury may be sustained by the evidence, still the complainant is entitled to his principal and legal interest.

4. That it is not competent for Jacobs, who was a stranger to the contract between Neff and Blizzard, and who cannot derive any possible benefit by sustaining the charge of usury to set up that defence in this cause. De Wolf vs. Johnson, 10 Wheat. 367, 393. 4 Johns. Ch. Rep. 332.

T. P. Scott, on the same side.

First Point. Blizzard is not a competent witness; it is his debt, and he only can gain by defeating the claim. He is a party and is liable for costs if we succeed. 10 Wheat. Rep. 384.

Second Point. Reject Blizzard's testimony, and there is no direct evidence of the usury--but testimony of Neff's custom, and the weight of this testimony is in favor of Neff.

Third Point. It is a principle [**3]  of equity, that if a party seeks to be relieved from a usurious contract, and comes into court as plaintiff, he must pay principal and legal interest. Legour et al. vs. Wante, 3 Harr. and Johns. 184. West vs. Beanes, 3 Harr. and Johns. 570. So also at law. Lucas vs. Latour, 6 Harr. and Johns. 100. 1 Johns. Ch. Rep. 368. 2 Bro. Ch. Rep. 649. 4 Ib. 436.

But we are told that if the usurer is plaintiff in equity as at law, and the defendant pleads and proves the usury, the plaintiff must lose his debt. Why so? Interest is lawful and not immoral; the rate of interest is matter of municipal arrangement, and usury is interest beyond the legal rate.

The moral and legal obligation to pay principal and legal interest, is beyond doubt in some cases, viz. where the borrower is plaintiff and seeks relief. Why not also when the borrower is defendant and seeks relief?

The forfeiture (by the usurer) is at law. Equity does not decree forfeits, but on the contrary relieves from them.

What is forfeited? Not the debt, not the moral obligation to pay, these remain, the securities are forfeited. 1704, ch. 69. sec. 2, 3.

Not the debt, but the evidence of debt is destroyed by proof [**4]  of the usury.

Not the debt, for like limitations the evidences of the debt may be destroyed--dead--but the debt remain and be revived. A promise to pay a bond barred by time, will not take it out of the statute, 3 Gill and Johns. 504, because the bond, the evidence of debt is dead, but the moral obligation remains, the debt remains, and assumpsit may be maintained on the new promise. 7 Harr. and Johns. 464-5.

So if the usurious bond is destroyed and a new one taken on legal interest, it is good. 2 Taunt. 184. 10 Wheat. 392. And why? because the moral obligation remains, the debt remains, the old dead securities or evidence of debt are put away, but the debt is not gone.

Again, if the security of the borrower pay the usurious debt and has a counter security, he can recover on it. Robinson vs. May, Cro. Eliz. 588. And why? The usurious bond (the evidence of debt) was void, was forfeited, but the debt remained.

Limitations does not extinguish the debt, but suspends or destroys the remedy. 1 Harr. and Gill, 212, 213. So usury does not destroy the debt, but only the evidence.

Again, the evidence of debt (the bond or note for instance) is voidable only, not void.  [**5]  10 Wheat. Rep. 392, 393. And although the usury is apparent, it must be pleaded. 1 Chitty on Plead. 425. The debt remains, but you may exclude the evidence.

The defendants have pleaded the usury; if the court think their plea sustained by the evidence let them have the benefit of it; take off the usury, but give the plaintiff principal and legal interest.

The remarks of the court in 5 Johns. Ch. Rep. 136, and in 4 Gill and Johns. 439, 440, seem to imply that in equity, if the usurer is plaintiff, and the usury is pleaded by the defendants and sustained by the evidence, the plaintiff's bill must be dismissed. But in these cases this point did not arise, and the remarks are to be considered as the dictum of the judge who pronounced them. So also in 1 Fonbq. Equity, page 13, note (h) with reference to Roll's Abr. but the reference to Roll does not sustain the annotator on Fonblanque. Roll speaks of suits in courts of common law.

Fourth Point. See 10 Wheat. Rep. 393, 394, in point. The principle contended for is also recognized in 4 Johns. Ch. Rep. 332.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*22]  BUCHANAN, Ch.  [**6]  J., delivered the opinion of the court.
Having attentively examined the testimony spread upon this record, we are clearly of opinion that each of the deeds of mortgage set out in the bill of complaint, was given for a grossly usurious consideration.
A number of witnesses appear to have been examined, some of whom swear that they had borrowed money of Neff, the appellant's testator, at six per cent. interest; others that they had known him to lend money at an interest of six per cent. and had never known him to charge more; others, that they had calculated the interest for him, on notes that he held of others, and always at the rate of six per cent. One swears that he had himself borrowed money from him at nine per cent., and another that he had borrowed from him at twelve per cent.
The two mortgage deeds from Blizzard to Neff are dated, the first on the 25th April, 1818, and the second on the 25th of May, 1821. Buckingham swears that in June 1829, Neff told him "that he lent no money to any man for less than twelve per cent. interest, and had not done so for many years, and would not do it to any one." Ogg swears "that Neff told him about twelve [**7]  or thirteen years ago, that John Blizzard was an honest little man, and was paying him more than twelve per cent. interest." Merriman swears, that sometime in the year 1818 or 1819, when speaking with Neff concerning Blizzard, Neff raised his hand towards Blizzard's house which was in view, and not more than a quarter of a mile off and said, "it is the same thing to me, as our neighbor pays me twelve per cent." And Parish 

 [*23]  swears, that some time in the year 1828, Neff told him, "that George Crutman had been paying him twelve per cent. for twenty years, and that John Blizzard had been allowing him twelve per cent. for fifteen years, which was secured by his notes and his property, and that Blizzard's debt was secured in the same way, that his, the witnesses was, which was by notes and mortgage of his property."
It is manifest therefore, independent of the evidence of John Blizzard himself, that whatever may have been the rate of interest at which Neff had loaned money to other persons, (which is not very material to this case,) he was exacting twelve per cent. from Blizzard, and there being no evidence of any pecuniary transaction [**8]  between them, except the mortgages and the considerations for which they were given, the declarations of Neff must be taken to have had reference to these transactions, and to taint them with usury.
But it is said, that admitting the mortgages to have been given on usurious considerations, Jacobs, who is in possession of the mortgaged premises, by purchase at a sheriff's sale under a judgment against Blizzard, cannot be permitted to defeat the claim of the appellant, who is seeking to foreclose the mortgages; and for that De Wolf vs. Johnson, 10 Wheat. 367, is relied upon. We had thought differently, but have been driven by the reference to that high authority, to look into the books upon which the opinion delivered in that case appears to have been founded. And with all the deference to which the Supreme Court is so eminently entitled, we have not been able to arrive at the same conclusion.
Indeed as far as the principle is there asserted, that the alienee of a mortgagor cannot avail himself of the defence of usury, to a bill of foreclosure by the mortgagee, that case has since been overruled in the case of Lloyd vs. Scott, 4 Peters 205. [**9]  Where all usurious contracts are declared by law to be null and void, there can be no recovery either at law or in equity, in a suit instituted upon an instrument infected with usury, if the defence of usury be 

 [*24]  pleaded; the very instrument that is sought to be enforced being utterly void.
Where a mortgage is given on an usurious consideration, the plea of usury, either by the mortgagor or his alienee, is a full defence to a bill in Chancery for a foreclosure by the mortgagee, who goes to enforce a void instrument. But there is a recognized distinction between that, and the case of a mortgagor or his grantee who goes into chancery seeking relief against the mortgage on the ground of usury; which will only be extended to him on his paying or offering to pay the principal and legal interest of the sum due, on the principle that he who seeks equity, to obtain relief must do equity.
By the law of this State, all bonds, contracts, and assurances whatsoever, whereby there shall be reserved an interest above the rate of six per cent. on money loaned, are declared to be "utterly void."
Here there was an interest of twelve per cent. intended to be secured, and the defendant,  [**10]  Jacobs, having purchased the mortgaged premises, at a sheriff's sale regularly made under a judgment against Blizzard the mortgagor, and this being a bill by the mortgagee for a foreclosure, we think he is entitled to avail himself of the defence of usury, which is insisted upon in the answers against this mortgage, so tainted and void.
DECREE AFFIRMED WITH COSTS.  

35 of 43 DOCUMENTS 

EDWARD DENNISON vs. PARKER H. LEE and WIFE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 383; 1833 Md. LEXIS 38 

December, 1833, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was an action of Debt, instituted by the appellees against the appellant, on the 15th of September, 1823, for rent in arrear, reserved on several leases, bearing date May 30th, 1807. The appellant was in possession of the demised premises, as assignee, of one Joel West, the lessee, and the suit was brought by the appellees, as guardians, of certain minors, the owners of the fee, in whose behalf the leases were executed, by an order of the Orphans court passed in virtue of a special act of the General Assembly of the State. The rent was made payable annually, on the 1st day of November, in each and every year, during the continuance of the lease, which contained the following clause of re-entry, &c. &c. "And if it shall happen, that the said yearly rent, or sum of    , shall be in arrear and unpaid, for the space of sixty days next after the time on which the same is above reserved to be paid, the same being first lawfully demanded, that then it shall be lawful to and for the said, (the lessor, &c.) or any of them, or any of their heirs or assigns, into the said demised premises, or any part thereof, in the name of the whole to re-enter,  [**2]  and the same to have again, repossess, occupy and enjoy, as in her or their former estate, until all such arrearage of rent, with legal interest therefor, and all expenses therein incurred, shall be fully satisfied and paid, or make distress therefor, at her or their option. And further, if it shall happen, that if the said rent shall be in arrear and unpaid, for the space of six months, that then, and in such case, this indenture, and every clause, matter and thing therein contained, shall be null and void, and of no effect."

There was a judgment by consent, for the plaintiffs, to be released on payment of the rent in arrear to be ascertained by the auditor, and interest on the sum so to be ascertained, if under the lease and circumstances of the case the court should be of opinion, that interest ought to be charged.

The auditor reported the amount due, and the county court gave judgment for the same, with interest thereon until the money should be paid.

From this judgment, the defendant prosecuted an appeal to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where a money rent is reserved in a lease of land, payable on a certain day, and is not paid, it carries interest as a matter of right.

A distress can only be made for the rent itself--interest on rent in arrear cannot be distrained for--but in an action of debt for the rent, interest is recoverable. 

COUNSEL:
Mayer and Johnson, for the appellant, contended.

1. That the claim per se, does not bear interest so as to authorise [**3]  the court to charge it. 4 Harr. and McHen. 463, Newson vs. Douglass, 7 Harr. and Johns. 417. Interest is not chargeable upon rent. 1st. Because rent is in the nature of interest. 2nd. Because of the privileges granted to landlords, for the recovery of their rent. And 3d. Because rent is only payable when demanded. Plowden, 71. Upon a distress for rent, interest is not recoverable. 6 Johns. Rep. 43. 1 Saund. Rep. 241. 2 Strange, 900. Salk. 596, 597. 2 Wm. Black. Rep. 837. 1 Hen. Black. 441. 1 Camp. Rep. 50. 2 Ib. 426. The whole of the contract is to be taken together, and as the right to re-enter is to be preceded by a demand, so also must there be a demand before a suit can be brought for the rent. If the principal sum be paid at the time of the demand, the right of re-entry is defeated. The landlord can only recover in an action, the same sum for which he could have exercised the remedy of re-entering. If the principal sum had been paid at the time the suit was instituted, the right of re-entry would have been destroyed. The remedy by re-entry is co-extensive with the remedy by action for the rent. No more can be recovered by the latter proceeding than by the former.

The tenant [**4]  is obliged to be on the premises with the rent, when it becomes due, as otherwise he might lose his estate by a re-entry, or be exposed to a distress; and it would be hard to compel him to incur these risks, by going in search of his landlord to pay the rent. Suppose there had been a distress, or re-entry, and the tenant had paid the amount due at the time, such assignment could be pleaded in bar to an action on the covenant for the rent.

In the eye of the law the land is the capital, and the rent the interest for its use; and consequently, the allowance of interest on the rent is compounding it.

Heath and Speed, for the appellees.

The rent, by the terms of the covenant, is payable on a day certain, with a stipulation for the payment of interest, if it shall be in arrear, and there is no necessity for making a demand before levying a distress, or an action on the covenant for the rent; though the landlord is required to do so, before he can re-enter. It is a contract then, for the payment of money on a day certain, and interest is payable as a matter of law. 2 Bos. and Pul. 3. 2 Brown's Ch. R. 3. 9 Johns. 71. 5 Cowen, 607, 611. 7 Harr. and Johns. 417.  

JUDGES:
The cause was [**5]  argued before BUCHANAN, Ch. J., and MARTIN, STEPHEN, and ARCHER, J's.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*385]  BUCHANAN, Ch. J., delivered the opinion of the court.
This is an action of Debt for rent in arrear reserved on several leases. And the single question presented for the consideration of the court is, whether interest is legally chargeable on the rent in arrear.
Looking to the clause of re-entry in each of the leases, it would seem to contain a virtual stipulation, that the rent reserved should bear interest; not merely from the time at which a re-entry is authorized, as contended for on the part of the appellant, but from the time of its becoming due.

 [*386]  But without stopping to examine very closely what is the proper construction of the clause of re-entry, it is sufficient to say, that in Newson's Administrator vs. Douglass, 7 H. & J. 417, it has been settled by this court, that interest is recoverable as of right upon contracts in writing to pay money upon a day certain; as upon bonds, bills of exchange, or promissory notes, though there be no express reservation of interest. And applying the decision in that case to this, it is conclusive of the question.  [**6]  It is true that interest on rent in arrear cannot be distrained for, the distress can only be made for the rent itself. But this is an action of debt, for a stipulated sum of money payable at a day certain; and cannot in principle, we think, be distinguished from Newson's Administrator vs. Douglass.
JUDGMENT AFFIRMED.  

36 of 43 DOCUMENTS 

CHRISTOPHER HUGHES vs. ELIZABETH YOUNG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 67; 1832 Md. LEXIS 10 

December, 1832, Decided 

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

This was an action of Covenant, commenced by the appellee against the appellant, on the 1st of September, 1828, on an indenture of lease; the plaintiff being the heir at law of the lessor, and the defendant the assignee of lessee.

The following statement of facts was submitted for the opinion of the court.

It is agreed between the parties in this case, that, on the 5th day of August, 1780, the following lease was executed, by and between the parties thereto. "This indenture, made this 5th of August, 1780, between Charles Ridgely, of John, of, &c. of the one part, and James Lyston, of, &c. of the other part; witnesseth, that the aforesaid C. R. in consideration of the rents and performance of the covenants hereinafter mentioned, on the part of the said J. L., and his assigns, to be paid and performed, hath demised, &c. and by these presents doth demise, &c. unto the said J. L. all that lot of ground, being part of a tract of land called Howard's Timber Neck, lying in the county aforesaid, and beginning for the part now demised, at the beginning of Jesse Hollingsworth's lot, and running thence, &c. containing six acres and one quarter [**2]  of land; together with all the improvements, ways, roads, waters, water courses, privileges, easements, and advantages, to the said parcel of land belonging, or in anywise appertaining, to have and to hold the said land and premises, with their and every of their appurtenances, unto the said J. L., his executors, administrators and assigns, from the 1st of January, then last, until the full end or term of ninety-nine years, from thence next ensuing, fully to be completed and ended; paying therefor, yearly to the said C. R., his heirs, &c., the rent of twelve pounds, twelve shillings, sterling money; and if it shall happen that the said yearly rent shall be in arrears and unpaid for the space of ninety days, next after the term on which the same is above reserved to be paid, the same being first lawfully demanded, that then it shall and may be lawful, to and for the said C. R., his heirs or assigns, into the said demised premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess, occupy, and enjoy, as in his or their former estate, until all such arrearage of rent, with legal interest therefor, and all and every cost, charge, and expense [**3]  incurred by the said C. R. his heirs or assigns, by reason of the non-payment of the said rent shall be fully satisfied and paid, or make distress therefor, at his or their option; and if it shall happen, that the said yearly rent, or sum of twelve pounds, twelve shillings, sterling money, or any part thereof, shall be in arrear and unpaid for the space of six months, next after the time on which the same is above reserved to be paid, the same being first lawfully demanded, that then it shall, and may be lawful, to and for the said C. R. his heirs and assigns, into the said demised premises, or any part thereof, in the name of the whole re-enter, and the same to have again, repossess, occupy, as in his and their former estate, and that then, and in such case, this indenture, and every clause, matter and thing therein contained, shall, from thenceforth be utterly void and of none effect; and the said C. R. for himself, his executors, administrators and assigns, doth covenant and agree, to and with the said J. L. his heirs and assigns, on the payment of the rent and performance of the covenants hereinbefore mentioned, and reserved on the part of the said J. L. and his assigns, to be [**4]  paid and performed, shall and may peaceably and quietly have, hold and enjoy the above demised lands and premises with the appurtenances, for and during the aforesaid term of ninety-nine years, for which the same is above demised, without the trouble, interruption and disturbance of him the said C. R., his heirs or assigns, or any other person or persons claiming any thing therein, by, from or under him, them or any of them, or by his or their means, privity, or procurement; and also that he the said C. R., his heirs and assigns, at any time or times hereafter, during the continuance of this present demise, on the request, and at the proper cost and charge of the said L., his heirs or assigns, and on his and their paying, or tendering in payment the sum of twelve pounds twelve shillings, sterling money, as a fine therefor to the said C. R., his heirs or assigns, make and execute, or cause to be made and executed, a new lease of the above demised lands and premises, for other ninety-nine years, to commence and take effect from and at the end of the term for which the same is above demised, subject to the same rents, and under the like covenants, clauses and agreements as are hereinbefore [**5]  mentioned, so that this present demise may be renewable and renewed. In witness whereof, the parties have hereto set their hands, and affixed their seals, the day and year above written."

It is further agreed, that the plaintiff was, from before the 1st day of January, 1825, thenceforth, and at this time, is legally vested with all the right, title and interest in and to the premises in said lease described, which the said C. R. possessed, immediately after the execution of the said lease, and that the defendant was, before the said 1st day of January, 1825, thenceforth, and now is vested with all the right, title and interest, which the said J. L. had immediately after the execution of the said lease. It is also agreed, that the premises are wholly unimproved; that the same have been, for the purpose of taxation, assessed by the proper authority at the sum of $ 448, which assessment is always one-fifth of the actual value of the property, when assessed. And further, that improvements on property are always assessed separately from the land itself. It is further agreed, that in regard to the premises in question, the defendant is the party in fact, against whom the taxes hereinafter [**6]  mentioned, during the period alluded to, have been charged. It is admitted that there remains due and in arrear, the sum of $ 214, with an average interest from the 1st day of July, 1828, for rent stated and reserved in and by the lease aforesaid, to be payable thereby. And it is further admitted, that there has been paid by the defendant, for taxes assessed upon the premises, since the 1st of January, 1825, the sum of $ 51 56, in equal, or nearly equal annual payments.-- Upon the foregoing statement, the following questions are submitted to this court.

First, are the taxes assessed upon and chargeable against the premises aforesaid, due from, and payable by the plaintiff or the defendant.

Second, if the whole of the taxes is not payable by either party, what portion is payable by the plaintiff, and what portion for the defendant.

It is further agreed, that the court shall enter up judgment, either for the whole of the rent stated to be in arrear, or for such balance as shall, by them be decided to be due, according to their decision upon the foregoing question; it is finally agreed, that all errors in the pleadings be mutually released, and that either party, or both [**7]  parties may appeal to the Court of Appeals.

On the preceding statement of facts, the County Court gave judgment for the whole amount of the plaintiff's claim, being $ 214, with interest from the 1st of July, 1828, and costs.

From this judgment, the defendant prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In 1780, R demised to L a tract of land for ninety-nine years, at a certain annual rent, and covenanted to renew the lease upon the payment of a year's rent, as a fine for other ninety-nine years, to commence from the expiration of the first term, and also that L should quietly enjoy the premises upon payment of the rent. The lease reserved the usual right to re-enter for non-payment of rent, but contained no agreement in relation to the payment of taxes. In an action of covenant brought upon this lease in 1828, it was HELD, that the taxes assessed upon, and chargeable against the demised premises, were due from, and payable by the lessee or his assigns, and that he could not set-off a payment of taxes, against a claim for rent. 

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

OPINION:

 [*71]  Walsh, for the appellant.
The question is, whether the owner of the fee, or the tenant, the lessee, is liable for taxes levied on the demised premises. He contended that they were payable by the former, and if the tenant paid them, he could set them off in an action of covenant, brought by the landlord for his rent. Woodfall's Land. and Tenant, 275, 6, 7. Act of 1812, ch. 191, sec. 36. Graham vs. Wade, 16 East 29. It is not said in the case stated, that the property in question, improved in value from the date of the lease, in 1780, to 1825. The assessment appears to been made upon the 

 [*72]  unimproved land. In reference to the public, the tenant is no doubt responsible for the taxes; and being consequently obliged to pay them, the right to discount the [**8]  amount from the landlord's rent, would seem to be clear.
Williams and Johnson, for the appellee.
1. This being a case stated, the court can infer nothing. The judgment must be according to the facts expressly alleged. Hysinger vs. Baltzell, 3 G. & J. 158. And the question therefore is, has a lessee in any case of this kind, a right to deduct taxes paid by him, imposed for State, or local purposes, from the rent due his landlord.
It does not appear whether the taxes were imposed for State or city purposes; nor whether they were levied under the act of 1817, ch. 148, or the act of 1812, ch. 191. In regard to the taxes in virtue of the act of 1817, the lessor is never answerable, though he is for those imposed under the act of 1812; and as the statement does not say, under which of these laws the taxes in question were levied, the judgment must be affirmed. Mayor and City Council vs. Chase, 2 G. & J. 376.
2. There is no obligation on the part of the landlord, to pay the whole amount of the taxes, either on the original, or appreciated value of the property. Even if there had been an express covenant by the landlord to pay taxes,  [**9]  still the tenant would be responsible for that portion, which accrued in consequence of an enhancement on the value of the property subsequent to the lease. The value of the property as ascertained by the lease, would be the measure of the landlord's responsibility. Watson vs. Atkins, 3 Barn. & Ald. 647. Watson vs. Home, 14 Serg. & Low. 45. The act of 1812, ch. 191, sec. 36. 1785, ch. 53, 1797, ch. 89, sec. 41. Woodfall's Land. and Tent. 276.
But upon such a lease as the present, the landlord is not liable for any portion of the taxes. The question arises upon the covenants of the defendant, and not those of the landlord, who only covenants for quiet enjoyment. This covenant then, is to be taken most strongly against the covenantor. 

 [*73]  Woodfall 369. 1 Wheat. Selw. 376. Wagner vs. White, 4 H. & J. 564.
The covenant here is that the lessee will pay a certain amount of rent annually to the landlord, and there is nothing in the contract to qualify this engagement, or to discharge the tenant pro tanto, if he is made to pay taxes to the government. Nothing but an express stipulation would entitle the plaintiff [**10]  to deduct these taxes. Fowler vs. Bott, 6 Mass. 62.
Leases like the present, are considered as sales of the property for the term, and the tenant is bound for all burdens which may be imposed on it during that period. If the taxes are reduced, he is relieved; if increased, he must bear the burden. If the property enhances in value, he enjoys the advantage; if it depreciates, it is his loss.
If the landlord is liable for the taxes, then if they should be so increased as to exceed the amount of the rent, the latter would be entirely extinguished; which is a result, to which the court would not come, unless it was manifest that the parties intended to make a contract, from which such consequences might flow. No such stipulation is contained in the contract, and the court is called upon to interpolate it. If demised premises are destroyed by fire, the tenant is nevertheless bound for the rent, and the court cannot aid him; and if it is incompetent to do so in the case of a total destruction of the property, what pretence is there for the exercise of such a power, upon the ground of his being subjected to some additional burden. The same would be the case if a portion [**11]  or even the whole of the premises should be condemned by the public, for public purposes. But the court, in this case, is not only called on to introduce a stipulation into the contract of the parties, throwing on the landlord a liability for taxes; but it is asked to say, that the contract intended, that he should pay taxes imposed by a particular act of assembly--the act of 1812.
The rule is, that the insertion of particular covenants, is an exclusion of all others; and consequently, as the landlord 

 [*74]  in this lease has convenanted for quiet enjoyment, and for further assurance, he is not by implication to be saddled with others.
This lease having been made in 1780, cannot be affected by the acts of 1785, and 1812, and is not to be construed with reference to their provisions.
In England, leases made prior to the statute in reference to the land tax, do not subject the landlord to the payment of such tax, when the lease itself is silent on that subject. Leases made since the statute, are differently expounded, because the judges suppose such leases are made with reference to the law. Bradbury vs. Wright, 2 Doug. 624. Woodfall, 276. In some [**12]  cases, a covenant to renew, makes the lease renewable for ever, but there can be no doubt of the present being a perpetually renewable lease. 5 Bro. P. Cases 519, 522. Woodfall, 146, 204.
Walsh, in reply.
In the absence of evidence to the contrary, the legal presumption is, that the tax was levied on the interest of the landlord. It cannot be inferred from the case stated, that the rent reserved, was exactly proportioned to that interest; and consequently, it cannot be known with certainty what the parties contemplated on the subject of the taxes. The rent may have been higher than it would otherwise have been, because of understanding at the time, that the landlord should pay the taxes. In the case stated, it is expressly said, that the property is unimproved, and as there is no distinction between improvements, resulting from natural or other causes, and improvements made by the tenant; it must be understood as meaning, that it was not improved in any way, or to any extent, and therefore, the taxes now in question, were levied on the original and unenhanced interest of the landlord.
The legal presumption is, that the taxes were imposed for the purposes of the State.  [**13]  Woodfall, 254. Doug. 614, 615.

 [*75]  It is said that the act of 1817, exempts the landlord from taxation. This is not so; though for the purpose of facilitating the collection of taxes, it authorizes a resort to the occupier or his property. Mayor and City Council of Balt. vs. Chase, 2 G. & J. 376, 381.
The question then is, whether taxes imposed for State purposes, and for the general good, are to be borne by the interest of one of the parties only, and the interest of the other is to be wholly exonerated.
No case can be found in which such a lease as the present has been adjudged to be renewable for ever, looking only to the covenants contained in it, and disregarding the acts of the parties. Woodfall, 146, 147. But be this as it may, it would seem a strange anomaly, that the interest of the landlord, distinct and palpable as it is, should be totally exempt from taxation, whilst that of the tenant is made to bear the whole burden of the government. The case in 14 Serg. and Low. 45, and all the cases cited on the other side, only show, that the landlord is not liable for taxes on the improved value of the property, and this because he does [**14]  not enjoy the benefit of such improved value.
JUDGMENT AFFIRMED.  

37 of 43 DOCUMENTS 

JOHN FREY vs. TIMOTHY KIRK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 509; 1832 Md. LEXIS 35 

December, 1832, Decided 

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

Assumpsit, by the appellee against the appellant, commenced on the 22d of March, 1828, on a promissory note dated 20th August, 1816, for $ 213, of which the appellant was the drawer, payable to the appellee ninety days after the date thereof, at the Bank of Chester county, Pennsylvania.

The defendant pleaded, 1st. Non assumpsit. 2d. Non assumpsit infra tres annos. 3d. Actio non--and 4th. A discharge under the insolvent laws of Maryland, granted him in virtue of an act of Assembly, passed at December session, 1818, whereby the judges of Cecil County Court were authorized to grant him the benefit of the existing insolvent laws of the State of Maryland, without requiring the assent in writing of two-thirds of his creditors in amount.

Issues were joined upon the first three pleas, and to the 4th, the plaintiff replied, that the cause of action in the said declaration mentioned, accrued to the plaintiff in the State of Pennsylvania, out of the jurisdiction of the State of Maryland, on the 20th of August, 1816, long before the passage of the act of Assembly referred to by the said defendant, and that at the time the said cause of action [**2]  accrued to him the plaintiff, the plaintiff and defendant were residents and citizens of the State of Pennsylvania.

Issue was joined to this replication.

Errors in pleading on both sides were waived.

1. At the trial the plaintiff proved by a competent witness, that a few days previous to the institution of this suit, he called on the defendant, and showed him the note upon which the action is brought, and asked him if it was his note, to which the defendant, holding the note in his hands, replied "yes." The witness then told him the amount claimed, which he gave from a statement, which he (the witness,) held in his hand, and by which there appeared to be a balance due, including interest to the 6th February, 1828, of $ 232 19. The witness asked him what arrangements he could make for the payment. Defendant replied, as regards that, he could not say. He was then asked by the witness, if the amount was due. Defendant said yes, and the witness understood the answer to refer to the statement, which however the witness did not show him. The witness, after some short time, informed the defendant that he had been instructed to bring suit, to which the defendant replied; "you [**3]  may save yourself the trouble, or expense," (the witness does not recollect which,) "as I have taken the benefit of the insolvent laws."

The following agreement was then read in evidence by the plaintiff.

It is agreed that the act of Assembly referred to in the pleadings, for the relief of defendant, shall be read from the statute book, and the certificate of the clerk of Cecil County Court, showing the discharge of defendant, shall be sufficient evidence for that purpose. And it was admitted, that at the date of the note declared upon, the plaintiff was a citizen of the State of Pennsylvania, and the defendant a citizen of the State of Maryland. It was further admitted, that the promissory note in the declaration mentioned was executed by the defendant in the State of Maryland, on the day it bears date, and at that time, and when it became due, the defendant was a citizen of Maryland, and the plaintiff was a resident of, and citizen of Pennsylvania. That after the execution of the note, it was endorsed over by the plaintiff to a third person, who placed it for collection in the bank of Chester county, in the State of Pennsylvania, where it was made payable. That it was subsequently [**4]  paid by the plaintiff according to the custom of that bank.

The plaintiff then prayed the court to instruct the jury, First, that if the jury believe the testimony, the plea of limitations is no defence to the action, the same being sufficient for the jury to find an acknowledgment of the plaintiff's claim within three years before the institution of this suit.

Second, it being admitted that the plaintiff was a resident and citizen of Pennsylvania, at the time the note, the foundation of the action, was paid by the plaintiff, and at the time the cause of action accrued, and that the cause of action accrued before the passage of the act of 1818, ch. 216, and it not appearing by evidence, that the plaintiff has ever been in the State of Maryland since the said cause of action accrued, that the plea of limitations is no defence to the action, but that the act of 1818, ch. 216, so far as the same affects this claim, is unconstitutional and void. That the act of 1818, ch. 107, passed for the benefit of the defendant, being passed after the cause of action accrued, is unconstitutional, null, and void, and that the discharge granted the defendant by the judges of Cecil County Court,  [**5]  so far as the same operates to discharge the future acquisitions of the defendant, that is to say, his acquisitions subsequent to the date of his application for the benefit of the insolvent laws, is illegal and void, and that the plaintiff, if the jury shall believe that the defendant is indebted to the plaintiff, is entitled to a judgment for the amount due, subject only to the defendant's personal discharge, and that property acquired, or to be acquired by him thereafter, continues to be liable in the same way, as before his application.

Thirdly. That the plaintiff being a citizen of Pennsylvania, and the defendant of Maryland, when the note was given and the cause of action accrued, and said note being payable at the bank of Chester county, in the State of Pennsylvania, and notwithstanding the same was given in Maryland, the discharge, granted by the judges of Cecil County Court, operates legally and constitutionally only to release the person of the defendant, and does not operate to discharge his future acquisitions.

Fourthly. That the said note being payable in the State of Pennsylvania, and when the same was given and became due, the plaintiff and defendant, being [**6]  citizens of, and residing in different States, and the act of 1818, ch. 107, having been passed after the cause of action accrued, the defendant's discharge only operates to release his person, and not property subsequently acquired by him.

Upon the preceding prayers, the court (HANSON, A. J.,) decided, that the evidence offered on the part of the plaintiff, was sufficient evidence of an acknowledgment to take the case out of the act of limitations, and if the jury believed the testimony, they must find for the plaintiff upon the plea of limitations; and that, as to the act of 1818, ch. 216, it had been held, that non-resident plaintiffs were barred by that act from bringing suits, unless brought within three years after its passage, and granted the first prayer of the plaintiff.

The same judge further decided, that the defendant's discharge only operated to discharge his person, and that property acquired by him since, must be responsible for his debts, and granted the second, third, and fourth prayers of the plaintiff.

The defendant excepted, and the verdict and judgment being against him, he brought the present appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

A citizen of Maryland, in 1816, gave his promissory note to a citizen of Pennsylvania, and made it payable at a banking house in the latter State. In 1818, the legislature of Maryland, by a special act, dispensing with some of the provisions of her general system of insolvency, authorized the maker of the note to obtain a discharge from his debts. HELD, that as this contract was to be performed in Pennsylvania, the insolvent laws of Maryland could not be pleaded in bar against it.

The insolvent laws of Maryland profess to operate upon all claims, whether the creditors are residents of other States or not, and no matter where the contracts are to be performed; they are however, necessarily qualified by the constitution of the United States, and by the decisions of the Supreme Court of the United States, declaring the meaning and effect of that constitution.

Wherever this court can ascertain with certainty, the conclusions which the Supreme Court of the United States has reached in the exposition of the constitution of the United States, they will adopt them.

In conformity with this rule, the principles adopted by the Supreme Court, in the ultimate opinion of that court, pronounced in the case of Ogden and Saunders, 12 Wheat. 213, will be followed by the court.

The States possess the power to pass bankrupt laws; but such laws, although constitutional in their action upon the rights of their own citizens, so far as they affect posterior contracts, are unconstitutional when they affect the rights of citizens of other States.

The constitutional rule is the same, whether the suit is brought in the United States Court, or in the court of the State where the debtor is sued, and by whose laws he is discharged.

The act of 1818, ch. 216, which repealed the exceptions or savings, in the act of limitations, (act of 1715, ch. 23,) in favor of persons beyond seas, is not unconstitutional as applied to causes of action existing prior to the time of its enactment; but after its passage, persons beyond seas had the same time to bring their actions, as they would have had, if they resided here, and their rights had accrued on the day of the passage of the law.

Every acknowledgment to take a case out of the act of limitations, should be of such a character, as that an implied promise may arise therefrom.

In an action upon a note, the defendant having pleaded limitations, it appeared that a few days before the commencement of the suit, the defendant was shown the note, and asked if it was his, to which he replied, "yes," and being then asked what arrangement he could make for its payment, replied, as regards that he could not say; being then informed that suit was to be brought, he again replied, "you may save yourself the trouble, as I have taken the benefit of the insolvent laws." HELD, that the admission with the qualification urged by the defendant, could not be construed into the admission of a present subsisting debt; if the excuse was true, it was equivalent to a declaration that the debt was discharged; and that it could not be inquired into upon this issue, whether the discharge actually obtained, was valid or not.  

COUNSEL:
Johnson, for the appellant.  [**7]  

The suit not having been commenced within three years from the passage of the act of 1818, ch. 216, the remedy is gone, although it might not have been in the power of the legislature, to make the law applicable, immediately, to a contract between parties situated as these were, so as to bar it at once. Notwithstanding the law may not have been constitutional to the full extent contemplated by the legislature, still the court will enforce it, as far as its provisions are compatible with the constitution. Eakin vs. Raub, 12 Serg. and Rawl. 330. Limitations at all events, began to run from the date of the act of 1818. If this be not so, then contracts in existence prior to the original act of limitations are now in force, unaffected by that law. The acknowledgment relied upon to take the debt out of the act, was accompanied by a declaration, showing that it was not recognized as a present subsisting debt, and, consequently, the defendant was under no obligation to pay it. Oliver vs. Gray, 1 Harr. and Gill, 216.

When a party has been discharged under an insolvent law, nothing short of an express promise will revive the claim--a mere acknowledgment is not sufficient. The defendant [**8]  may have been discharged under the act of 1805, and that law being in existence before, and at the time the contract was entered into, such a discharge would vacate it altogether. Ogden vs. Saunders, 12 Wheat. 213. Although the note on its face was payable in Pennsylvania, still in case of default, the Maryland courts were to enforce it.

R. W. Gill, for the appellee, contended,

That the plea of limitations was no defence under the circumstances of this case. It appears that a few days before the institution of this suit, the defendant admitted the note declared on to be his, and on being informed at the same time, that suit was meditated, he replied to the witness, "you may save yourself the trouble, as I have taken the benefit of the insolvent laws." Now what is the effect of this admission? The defendant continually, from the time of making the note, to the trial of the suit, resided in Maryland. The note was payable to a resident of Pennsylvania, and made expressly payable at the Chester Bank, in that State. These admissions of a citizen of Maryland, are made with reference to his contract to be executed in Pennsylvania, and the inquiry is, do they sustain this defence?  [**9]  The effect of a defendant's admissions in reviving the remedy upon a contract, and waiving the bar arising from the act of limitations, was much considered in Oliver vs. Gray, 1 Harr. and Gill, 204, 217, and in Keplinger vs. Griffith, 2 Gill and Johns. 301. It was there held, that the acknowledgment of the debt with a refusal to pay, accompanied with an excuse for not paying, 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. The excuse here is of that character. The note is admitted--actual payment is not pretended. The defendant's excuse is a discharge under the insolvent law; that is, an admission that the debt yet remains due in fact. Then, does the discharge furnish any real objection to the payment of the debt? Does it afford any moral or equitable ground for refusing to pay? In this case it does not. The only discharge which can be meant, is a discharge under the Maryland law. The defendant has always resided here. He could have no other. What is the effect of such a discharge upon this contract, which was to be executed in Pennsylvania? As it relates to that [**10]  contract, and the rights of the present plaintiff dependent upon it, that discharge was clearly a nullity, void, and unconstitutional. When it is conceded, that the court will examine the legal effect of the excuse, as applied to the contract under consideration, and as that excuse furnishes evidence of a moral and equitable or legal ground for not paying, decide either for or against the party relying upon the statute; when these principles are considered, and applied to the excuse in this case, then it appears, that here the act of limitations is waived, and the remedy revived. De Sobry vs. De Laistre, 2 Harr. and Johns. 220, 224. Zuchary and Turner vs. Boyle, 6 Peters, 634. Ogden vs. Saunders, 12 Wheat. 213. Shaw vs. Robbins, Ib. (no.) 369. Sturgess vs. Crowninshield, 4 Wheat. 201. That the plaintiff here is entitled to consider the actual situation of the defendant, the case of Keplinger and Griffith fully shows. If we pass from the consideration of the defendant's language, and situation, and consider the actual discharge granted, then as it was under an act passed after the date of the note, and dispensed with material portions of the general insolvent law of Maryland, there [**11]  can be no doubt of its invalidity to affect the plaintiff. In the matter of Wendell, 19 Johns. 153.

Again, under our general act of limitations, and as the law stood when this note was given and became due, limitations did not apply to the plaintiff at all. He was a non-resident, and protected by the savings of the act. But by the act of 1818, ch. 216, these savings were repealed. The repeal of the savings in the act of limitations in relation to non-residents was prospective, and does not apply to this an antecedent cause of action; and if the language of the repealing law admits of a different construction, it then substantially becomes a law impairing the obligation of contracts, and is void. Ogden vs. Saunders, 12 Wheat. 261, 2, 3, 300, 301, 326, 327, 351, 352. Ogden vs. Blackledge, 2 Cranch. 272. Eakin, et al. vs. Raub et al., 12 Serg. and Rawl. 330. Elliott vs. Lyell, 3 Call 241, 243. Gillmore vs. Shorter, 2 Mod. 310, 311. Jones 108. 2 Showers 17. 2 Levinz 227. Ventris 330.

Johnson, in reply.

The act of 1818, authorising the court to extend to the defendant the benefits of the insolvent laws, is not itself an insolvent law. It can with no more propriety be called [**12]  so than could a law creating a new tribunal for the administration of the existing system. By the act of 1805, the County Courts alone had jurisdiction in cases of insolvency; since then, jurisdiction in such cases, has been conferred upon the Orphans Courts, and special boards have been created, yet it has never been said that the discharges granted by each of these tribunals, have not been discharges under the act of 1805, and that they have not precisely the same effect as discharges by the County Courts. If the argument on the other side is sound, then every change in the mode of proceeding prescribed by the legislature, would be a new law, and would only operate on contracts thereafter to be made.

The act of 1818, repealing the savings in the act of limitations, was designed to operated on existing contracts to a certain extent. 12 Serg. and Rawl. 330, 344. It was the object of the legislature by that law to place the foreign creditor on an equality with the domestic; that is, to give them three years to sue in, and such a law is not unconstitutional, whatever might be said of a law, declaring subsisting contracts to be at once barred. Sturgess and Crowninshield, 4 Wheat.  [**13]  201. These acts of limitations do not impair the obligation of contracts, they only concern the remedy. 12 Wheat. 352.

The proof offered by the plaintiff to take the case out of the act of limitations, is not sufficient for that purpose. It must be taken altogether, and part of it is, that the defendant had obtained a discharge from the debt, of which he intended to avail himself.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*517]  ARCHER, J., delivered the opinion of the court.
The following questions are presented by the various bills of exception in the record.
1st. Is the defendant's discharge under the insolvent laws of Maryland, a bar to the plaintiff's recovery of an absolute judgment?
2nd. Is the defendant protected by the statute of limitations? and if so, is the acknowledgment such as would be 

 [*518]  sufficient to take the claim out of the operation of the statute?
In relation to the first question, the case presents the following facts. The contract was made between citizens of different States. The plaintiff resided in Pennsylvania, and the defendant in Maryland, and the contract [**14]  which bears date in 1816, was payable in Pennsylvania, at the Chester County Bank. By the act of the general Assembly of Maryland, passed at December session, 1818, the benefit of the insolvent laws of Maryland was authorized to be extended to the defendant, without his obtaining the assent of two-thirds of his creditors.
We shall examine this question in two aspects. First, without any reference to the act of 1818, and looking solely at the ability of our laws to discharge the defendant from his contract, made subsequent to the passage of such laws; and secondly, as to the efficacy of the discharge in barring the recovery of the debt, contracted anterior to the passage of the special act of insolvency passed in the year 1818.
The insolvent laws of this State profess to operate upon all claims, whether, the creditors are residents of other States or not, and no matter where the contracts are to be performed; and if this cause were to be determined by our legislation solely, the plaintiff could not be entitled to any other than a qualified judgment.
The plaintiff, however, relies upon his rights as a citizen of another State, secured to him by the constitution [**15]  of the United States, and contends, that however general may be the phraseology of our laws, they can have no operation upon his claim; and several decisions in the Supreme Court of the United States are relied upon to sustain this proposition. It has been a subject of great regret, that the determinations of the tribunal of the last resort upon this perplexing question, have been so unsatisfactory, and to use the language of one of the judges of the Supreme Court, that "they assume as much the shape of a compromise, as of a legal adjudication." But however we may lament this, 

 [*519]  if it can be ascertained with certainty, the conclusions to which that court has arrived, as it is more especially its province to determine such questions, we shall feel ourselves constrained to yield to them the deference demanded by the peculiar sphere in which it moves, under the constitution and the laws.
Whatever doubt may heretofore have existed, with regard to the law settled in the cases of Ogden and Saunders, 12 Wheat. 213, and Shaw and Robbins, Ib. 369, arising from the diversified views taken by the judges in pronouncing their judgments, it appears by the [**16]  late case of Boyle vs. Zacharie and Turner, 6 Peters 635, that the ultimate opinion pronounced by Mr. Justice Johnson, is to be considered as final and conclusive of the law upon this subject, and Chief Justice Marshall, in 6 Peters 348, declares, "that whatever principles are established in that opinion, are to be considered as no longer open for controversy, but the settled law of the court."
Looking then, to the ultimate opinion of Mr. Justice Johnson, as giving the law upon this subject, and not considering it, as in any manner, to be limited or restrained in its interpretation, by his general views expressed in his first opinion in the same case, we consider, that so far as the question before us is to be affected by that judgment, the following principles are clearly deducible. 1st. That the States possess power to pass bankrupt laws. 2. That such laws, although constitutional in their action upon the rights of their own citizens, are unconstitutional when they affect the rights of citizens of other States. The case then before the court, presented the question, whether the discharge of a debtor under a State insolvent law, would [**17]  be valid against a creditor or citizen of another State. The inferior tribunal had determined the invalidity of a discharge under such circumstances, and in affirming the judgment, the learned judge declares, the purport of the judgment to be this, "that as between citizens of the same State, a discharge of a bankrupt by the laws of that State, is valid as 

 [*520]  it affects posterior contracts; that as against creditors, citizens of other States, it is invalid as to all contracts." And in speaking of the important results growing out of the limitation of the power of the States over contracts, to the controversies of their own citizens, after they become the subject exclusively of judicial cognizance, he declares, "that the States cannot proceed one step further without exercising a power incompatible with the acknowledged power of the other States, or of the United States, and with the rights of the citizens of the other States." Acting in conformity with this opinion, and the views of it thus expressed, the Supreme Court decided the case of Boyle vs. Zachary and Turner, 6 Peters 635, in which it was adjudged, that a discharge under the insolvent laws [**18]  of Maryland, was inefficacious in relieving the debtor from a contract to be performed in Louisiana. These determinations are decisive against the operation of the discharge here pleaded against the plaintiff's contract, as it was to be performed in Pennsylvania, unless as has been supposed, the opinion of the Supreme Court gives countenance to the idea, that there is a different constitutional rule operating in the United States Courts, and in the courts of the State where the debtor is sued, and by whose laws he is discharged.
Whatever may have been the views expressed by the learned judge, whose last opinion has become the law of the land, in his first opinion in Ogden and Saunders, we consider them as impliedly abandoned, or at least as not having been adopted by the court; for the views upon this subject in his first opinion, are not only not reiterated, but general conclusions are drawn, without the qualifications to which the first opinion would have led, and the last opinion is adopted by the court as the settled law. And if it were otherwise, we should feel some difficulty in sanctioning the doctrine, that a creditor, by pursuing his debtor by suit in [**19]  the courts of the State granting the discharge, thereby stripped himself of any rights secured to him by the constitution of the United States, or in any manner 

 [*521]  waived them. Entertaining these views, we are compelled to decide, that the defendant's discharge did not protect him against an absolute judgment.
This determination renders it unnecessary to present any views, in relation to the operation of the special act of insolvency, passed for the defendant's release in the year 1818, subsequent to the date of the contract, and dispensing with the assent of creditors.
The next question submitted by the various prayers in the record is, whether the cause of action is barred by the statute of limitations?
The act of 1715, ch. 23, gave, by its third section, to persons beyond the seas at the time of the accrual of the cause of action, liberty to bring their actions within the respective times prescribed by the second section, after their coming within the State. The act of 1818, ch. 216, repealed the exceptions or savings in this statute in favor of persons beyond seas.
If this repealing statute is unconstitutional, the plaintiff's claim, standing under the [**20]  exception in the law of 1715, would not be barred by limitations, as there is no evidence in the record, that the plaintiff had been at any time within the State, from the formation of the contract, or at its accrual.
This cannot now be considered as an open question in this court. The constitutionality of the repealing law, was determined at the last June term, in the case of the State use of Krenkel vs. Hoppe and Hammer, in which the court adjudged, that after the repealing law, all persons beyond seas had the same time to bring their actions, as they would have had, if they had resided here, and the causes of action had accrued on the day of the passage of the law--and they gave such an interpretation to the act, as placed all suitors, foreign and domestic, upon the same footing. The unlimited latitude granted to persons beyond seas, was considered by 

 [*522]  the legislature as unreasonable, and it could constitute no actual grievance, or just cause of complaint, if they were reduced to the same standard as our own citizens. Placing such a construction upon the act of 1818, it was clearly, neither a violation of any constitutional obligations of the State, for no obligation [**21]  of contract was at all violated or impaired; nor was it an infringement of any principle of natural justice, as affecting the foreign creditor, for the same law governed his contract, which operated on all other contracts.
More than three years having elapsed after the passage of the law of 1818, ch. 216, before the institution of the suit, the statutory bar of limitations defeated the plaintiff's recovery, unless the evidence adduced by him shall be deemed sufficient to remove the bar and of this, we shall now inquire.
The evidence on this branch of the case is detailed in the bill of exceptions. It is unnecessary to advert to it here with particularity. In substance it is an admission that the cause of action was unpaid, and a refusal to pay, because the defendant was discharged by the insolvent laws.
Every acknowledgment to take a case out of the statute, should be of such a character, as that an implied promise may arise therefrom. It should therefore, in the language of Oliver and Gray, be the admission of a present subsisting debt. And although it was admitted in effect, that the debt was unpaid, the defendant relies upon his discharge under the insolvent law, to prevent [**22]  its coercive payment. Taking the admission with the qualification which he has urged, it could not be construed into the admission of a present subsisting debt, for, if the excuse were true, instead of its being the admission of a present subsisting debt, it would be equivalent to a declaration that the debt was discharged. It is true, the admission is accompanied with an excuse, that leaves the moral obligation to pay in full force, yet taken altogether, it wants the essential ingredient demanded in Oliver 

 [*523]  and Gray; it is not the admission of a subsisting debt, but a denial of its existence as such.
Nor can it be answered, that the discharge was unconstitutional and void, and be inferred from this, that the admission was therefore of a subsisting debt; for the acknowledgment must be taken altogether, and no evidence can be received, to turn what is a denial of an existing liability, into the acknowledgement of a debt, by showing, that he either was not discharged by the insolvent laws, or that his discharge was inefficacious.
From the preceding views, it follows, that the court below were right in granting the third and fourth prayers in the first bill of [**23]  exceptions, but were in error in granting the first prayer in said bill of exceptions; and were also in error in granting the second prayer therein contained, because, although the discharge of Frey under the insolvent laws, was inoperative as regards the plaintiff's claim, yet the court went too far in their instruction to the jury, if they believed the defendant was indebted to the plaintiff, that therefore the plaintiff was entitled to recover.
The court below were in error in the opinion by them expressed, and in the direction by them given in the second bill of exceptions. It also follows, that the court were right in rejecting the prayer made by the defendant's counsel in the fourth bill of exceptions, and in the opinion expressed by them therein.
JUDGMENT REVERSED.  

38 of 43 DOCUMENTS 

SMITH, SURVIVING PARTNER OF SMITH AND LANE, vs. STONE AND MULLIKIN 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 310; 1832 Md. LEXIS 16 

June, 1832, Decided 

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

Assumpsit by the appellant William Smith, as surviving partner of James S. Lane, and John Smith, trading under the firm of James S. Lane and Smiths, against the appellees, trading under the firm of James Stone, Jr. & Co., on a promissory note, the execution of which, by the defendants was admitted, dated 20th December, 1821, at six months, for $ 193 75. Issue was joined upon the plea of non assumpsit.

1. At the trial, the defendants having read to the jury a deed, dated 27th July, 1822, executed by them, to trustees, of all their partnership property, and effects, for the purpose of applying the proceeds of the same, among those of their creditors, who should within three months from the date thereof, execute to them a full and final release and discharge from any claim and demand, they might respectively have upon them; offered to read to the jury the following paper. "We, the several persons who have hereunto subscribed our names, creditors of Benjamin H. Mullikin, and James Stone, Junior, lately trading under the firm of J. S. Jr. & Co., send greeting: Whereas the said B. H. M. and J. S. Jr., by deed bearing date the 27th day of July,  [**2]  instant, and intended to be recorded, have conveyed unto Alexander Fridge, John Gibson and Thomas W. Hall, their heirs, &c. all and singular the joint estates, effects and property, real and personal, of them the said B. H. M. and J. S. Jr., and also all debts and sums of money due or owing to them in their joint or co-partnership capacity aforesaid, to hold, receive, and take the same, and to dispose thereof for the benefit of the creditors of the said firm of J. S. Jr. & Co., in the manner and upon the terms and conditions in the same deed expressed and set forth. And whereas the said J. S. Jr., individually, by deed of even date with the one above referred to, and intended to be recorded, hath conveyed, assigned and transferred, to the same trustees, certain real and personal estate, specified in a schedule annexed to said last mentioned deed, and subscribed by the said J. S. Jr., to hold to the said trustees, for the like purposes with those expressed in the aforesaid deed first mentioned, as by reference to said deeds may more fully and at large appear. We have therefore agreed, and do hereby agree to accept of our respective shares and proportions of the property, estate, effects,  [**3]  and debts, so as aforesaid conveyed and transferred by the said B. H. M. and J. S. Jr., jointly, and the said J. S. Jr., individually, to the said A. F., J. G. and T. W. H., in full satisfaction of the debts and sums of money owing to us respectively, at the time of the signing and sealing hereof, by or from the said B. H. M. and J. S. Jr., in their co-partnership capacity aforesaid; hereby declaring our assent to and approbation of, as well the aforesaid deeds of trust, as the provision by them made for the discharge of our respective claims. Now therefore, know ye, that for the consideration aforesaid, each of us the said creditors, who have hereunto set our hands and seals, for himself, his heirs, executors and co-partners, doth by these presents remise, release, and forever discharge the said B. H. M. and J. S. Jr., their heirs, &c. of and from, all and all manner of action and actions, suit or suits, claims and demands whatsoever, which against the said B. H. M. and J. S. Jr., or either of them, each and every one of us, their said creditors, now have, or which each and every of our heirs, executors or administrators respectively, hereafter may, can or ought to have, for or by [**4]  reason of our respective debts, to us severally due or owing from the said firm of J. S. Jr., & Co., in anywise howsoever. In testimony whereof, we have severally subscribed our names, and affixed our seals, this 29th day of July, 1822."

And offered evidence to the jury, that the said instrument of writing was signed "Lane and Smiths," sealed and delivered by John Smith, one of the partners of the firm of Lane and Smiths, in the name of the said firm of Lane and Smiths, but without any authority for that purpose from either of the other partners, except so far as the said authority was incident to the character and power of a partner. The plaintiff objected to the admissibility of the said instrument of writing or release, on the ground that it was not the deed of the plaintiff, or of the firm of James S. Lane and Smiths, or of any person constituting one of that firm; but the court (Hanson and Kell, A. J.) overruled the said objection, and allowed the said instrument of writing to be given in evidence to the jury. The plaintiff excepted.

2. The plaintiff, after the evidence stated in the first bill of exceptions, (which is to be taken as a part of this exception,) had been [**5]  given to the jury, offered to prove by Thomas W. Hall, that he, as one of the firm of T. W. and C. A. Hall, creditors of the defendants, had executed the release mentioned in the first bill of exceptions, before the said release was signed by John Smith, the deceased partner of the plaintiff, as stated in the said first exceptions; that James Stone, Jr. one of the defendants, had represented to him that the creditors generally had consented to sign the said release, and that the witness had executed it under that impression. And the plaintiff further offered to prove by the said Hall, and by Henry Beadell, a competent witness, that one of the said creditors had refused to execute the said release, and the defendants, in order to induce him to sign it, had secretly agreed to pay him, and actually did pay the said creditor, without the knowledge of the other creditors, an additional consideration, to wit, seventy-five per centum of his whole claim, which the plaintiff contended was a misrepresentation, and in law a fraud by defendants practised on the rest of the creditors, and renders the said release void and inoperative as to the plaintiff; but the court refused to permit the said [**6]  testimony to be given to the jury. The plaintiff excepted, and verdict and judgment being against him, he prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

One partner cannot bind another by deed, yet he may execute a release under seal in the partnership name, which will discharge a debtor to the partnership.

Where debtors transferred property in trust for the benefit of creditors, who agreed to accept their respective proportions of the estate conveyed, and in consideration thereof, released the debtors from all liability, in an action by one of the creditors against the debtors, it is not competent for the plaintiff to show, in order to avoid the release, either, that one of the defendants had represented to the witness, (who was a creditor,) that the creditors generally, had consented to sign the release, and that he (the witness,) had executed it under that impression, or, that one of the creditors had refused to execute the release, and the defendants in order to induce him to sign it, had secretly agreed to pay him, and did pay him, without the knowledge of the other creditors, an additional consideration. Such evidence does not establish any fraud.

When there is an understanding, that all the creditors of a particular debtor are to sign a deed of release, upon certain conditions, and to receive nothing beyond their proportions of the trust fund, or that the deed should be void, any underhand agreement to pay more, would have been a breach of faith, and a violation of the principles of morality and fair dealing. 

COUNSEL:
Lloyd, for the appellant.

1. It is a settled principle of law, that one partner cannot bind the firm by deed, no matter what consideration passes, unless a special authority under seal be given him for that purpose; or unless the other partners be present at the execution and assent thereto. Harrison vs. Jackson et al. 7 Term. Rep. 207. Ball. vs. Dunsterville, et al. 4 T. R. 313. The deed in question, not being stated to have been executed in the presence, or with the knowledge of the other members of the firm, and there being no special authority, is clearly therefore not the deed of the firm. But it is said, that the case of a release is an exception to the rule: that though such release is not the deed of the firm, yet it is the deed of the individual member who executes it, and is obligatory on the firm. It is true, that the books make this distinction, and it is on the principle, that a release by one joint obligee, is an extinguishment of the debt. Gow. on Partnership 83, 84-5-6-7. Mont. on Composition, 15. This [**7]  exception as before stated, is made on the ground, that the instrument of release, though not the deed of all the partners, is the deed of the particular individual of the firm, who executed it. Therefore, I apprehend, that unless it can be shown, that the instrument in question can operate as the deed, and is the deed of John Smith, it is no bar to the plaintiff's suit. Is it then the deed of John Smith? It will be observed, that the instrument purports on its face to be the deed of those "who have thereunto severally subscribed their names, and affixed their seals," and that the name of John Smith, does not appear in any part of it. The only name, or names, subscribed by John Smith, according to the proof, are the names "Lane and Smiths." Is this then the name of John Smith? Can parol evidence be admitted to show, that a certain person by name, John Smith, subscribed the names "Lane and Smiths," and affixed a seal thereto, when the deed on its face purports to contain the names of the several persons who executed it? By the admission of such evidence will the court say, that although the deed on its face shows the surnames of two or three persons, with one seal affixed, and although [**8]  such surnames do not identify any individual yet that in fact it is the deed of a particular person? And will the court do this, when the surname subscribed to the instrument does not even correspond with the surname of the person who is said by the parol evidence to have executed it? The names subscribed are "Lane and Smiths," the person, who is proved to have subscribed them, is named John Smith. It is a principle of law, that a deed must on its face distinguish with reasonable certainty the person who is the grantor, and the person who is the grantee: and if the deed does not so distinguish, it is void for uncertainty, as it would be for uncertainty in the description of the thing granted. Shep. Touch. 233-4. 10 Co. Rep. 123-4, and the cases there cited. Can any one from an inspection of this instrument say, that there is any certainty as to the grantor? And if parol evidence may be adduced to show, that John Smith subscribed the names "Lane and Smiths, and it may thence be inferred, that the instrument is the deed of John Smith, might it not with equal reason, and on the same principle, be allowed, that parol evidence shall be introduced to show, that a deed purporting on its face [**9]  to be the deed of Robert Rogers is in fact the deed of Thomas Rogers? Yet the books all say, that a mistake in the Christian name of the grantor, or grantee avoids the deed. And the same books say that the omission of the Christian name avoids the deed, which is the fact in the present instance. Comyn. Dig. Tit. "Grant." (A. 2.) lays it down expressly, that "a mistake of the Christian name of a grantor or grantee shall not be supplied." Again--Bac. Abrid. "Grant" (C.) "It seems by the better opinion of the books, that a mistake of the Christian name will vitiate the grant: as when the grant is without any Christian name at all, or where a wrong name is made use of, as Edmund for Edward." Also, in Sheppard's Touchstone, 233-4, after stating that the names of the persons in grants are set down to distinguish them, and to make the person intended certain; that it is best to describe the person by his true and proper name of baptism, and also by his surname; and if it be a corporation, by the true name whereby the corporation is made, "yet (it is added,) mistakes in this case, unless they be very gross, will not make void the grant. "Nihil fact error nominis cum de corpore constat." But [**10]  the author shows afterwards by the cases which he states, what he means here by a very gross mistake: for, in the same paragraph he says, "But if an ordinary man grant by his surname only, without any name of baptism, or by his name of baptism, without any surname at all; in these, and such like cases, for the most part, the grant will be void for uncertainty: unless there be some other matter in the deed to help it, or some matter done ex post facto to supply it: for in some cases, where the thing granted doth lie in livery, such a mistake or uncertainty in the grant may be holpen by the livery of seisin upon the deed afterwards." Shep. Touchs. 233-4 "Grant." ad id. 4 Cru. Dig. 35. "Decd." Now, in the case before the court, there is no Christian name, neither does the surname subscribed to the instrument correspond with the surname in the parol evidence--and there is no other matter in the deed to help it, neither is there any matter done "ex post facto," to supply the uncertainty. So also in the case of the Mayor and Burgesses of Linne, 10 Co. Rep. 123, a: which was an action on a bond given by John Pain to the Mayor, &c. of Linne, by the name of "Majoris et Burgensium de Linne Regis,  [**11]  " it was in proof that the grantees were incorporated by the name "Majoris et Burgensium burgi domini regis de Linne regis," and an objection was made by defendant's counsel, that the bond was void on account of the misnomer of the grantee. The court held in that case, (after it had been oftentimes argued at the Bar (p. 123 a.) that the variance was only "in syllabis et verbis," and not "in sensu et re ipsa," and therefore, not material. (p. 125 a.) Coke adds, (p. 125-6) "so that the name in the bond by matter apparent therein imports a sufficient certain demonstration of the true name of the incorporation." And it will be found, as well by the principles applied by the court to that case, as by the cases therein cited and approved, that the decided cases go at least as far as the positions above laid down by Comyn and Sheppard, and followed by Bacon and Cruise. The case of 10 Co. R. 123, is a case of uncertainty in the name of the grantee, but the principles equally apply to the case of the grantor, as may be seen from the case of the "Eaton College" therein cited (p. 124 a) and admitted to be of authority. Vid. et Moor. 13, 1 Anders. 23, Dyer 150, pl 84, 1 Leon 159. From all these [**12]  authorities, I think it clear, that it is material in law, that the grantor should be named. Is there any grantor named here? From the same authorities, (particularly Shep. Touchs. 234, and 10 Co. R. 125 a. b.) it seems equally clear, that the name must be certain from matter apparent in the deed itself; and that parol evidence cannot be introduced to supply the defect in this respect. Comyn Dig. "Grant" (A 2) says expressly "a mistake in the Christian name of the grantor, or grantee shall not be supplied." Is there any matter apparent in the deed itself here, which (to use the words of 10 Co. R. 125 a. b.) "imports a sufficient certain demonstration of the true name of the grantor?" It certainly cannot be pretended that there is any Christian name here--and an omission, according to the same books, is equally fatal with a mistake: and moreover as I have before stated, the surname proved by the parol evidence, even if such evidence was admissible, does not correspond with the name subscribed to the instrument before the court.

If then these authorities are to be relied on, the instrument in question is not the deed of the firm, neither is it the deed of John Smith. If it cannot [**13]  operate as a deed, it cannot operate at all against the plaintiff in this case. For it is clearly the deed of John Gibson and of several others, who it appears have duly executed it. The same instrument cannot operate as the deed of one person, and the parol agreement of another, as a deed for one purpose, and not a deed for another, and that too, when it purports on its face to be a deed. But if it were held to be a discharge not under seal, yet it would not be a bar to the plaintiff's suit in this case. It will be observed, that the debt, for which this suit is instituted, was due at the time of the signing of the instrument of writing in question. Watson on Part. 234. "A promise, before it is broken, may be discharged by a parol agreement: but after it is broken it cannot be discharged without deed, by any new agreement without satisfaction." Again--this instrument does not purport to be in consideration of full satisfaction, but of the shares, which may come to each creditor. In Fitch vs. Sutton, 5 East. 230, it was expressly decided, "that where a less sum than the whole demand was paid, and agreed to be received, in satisfaction of the claim, the acceptance of the less sum is [**14]  no discharge of the debt, unless it is done by deed; and in that case, the plaintiff recovered the balance, the discharge not being under seal. Ad id. Cumber vs. Wane, 1 Stra. R. 426, vid. et Pinnel's case, 3 Co. R. 118. For these reasons we think the court below erred in the decision in the first bill of exceptions.

2. On the 2d bill of exceptions. In Cooling vs. Noyes, 6 Term. Rep. 263, it was decided, that if a debtor represents to one of his creditors, that if he will agree to accept a composition for his debt, all the other creditors will do the same, and such creditor do agree to accept it in consequence of such representation, the agreement is not binding on the said creditor, if the representation be untrue. Again--In Child vs. Danbridge, 2 Vern. 71, it was held, that a secret agreement, to pay some of the creditors in full, was a fraud on the rest; and the court on that ground, refused the debtor the relief prayed. And Small vs. Brackley, 2 Vern. 602, is to the same effect. Doe. vs. Anderson, 5 M. and Selw. 161, decides, that where a party executes a release under seal, with an ignorance and concealment of important facts, he is not bound by it. BAYLEY, J., says "I do [**15]  not see any reason why the plaintiff should have gone on under a deed, executed in ignorance, and under concealment. The bankrupt was guilty of a fraud, by concealing, instead of disclosing an act of bankruptcy, which distinguishes the case from Bamford vs. Baron." See also Montague our Composition, 32. And how, I would ask, do the courts in these cases ascertain that there has been a fraudulent representation, if the party against whom the agreement or release is produced, may not be permitted to offer parol proof of such fraud? Yet here such proof was rejected.

In conclusion I will add, that the present case does not come within the principle of that class of cases, in which it has been held, "that if the plaintiff by signing a composition induced others to sign, he cannot afterwards sue for his whole debt, because it would be a fraud on those who signed after him." Because in the present case, there was a fraud practised on all the parties signing, the plaintiff, as well as those who signed after him. The latter therefore, are not bound by the release, any more than the former, and any of them may sue. Whereas in the cases in which the above principle was applied, it will be [**16]  found, that there was no fraud on the part of the debtor, and consequently, the other creditors were bound by the composition, and the plaintiff in those cases, wished to take advantage of certain circumstances peculiar to his own case, which avoided his release to the defendant, while he left the other creditors (whom he had induced to sign) without the benefit of the consideration they had contemplated, to wit, the discharge of the defendant, or a certain amount of composition money.

No counsel argued for the appellees.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*320]  STEPHEN, J., delivered the opinion of the court.
This action of assumpsit was brought upon a promissory note, executed by Stone and Mullikin, to Lane and Smith, in the course of the trial of which, two bills of exception were taken to the opinions of the court below. The defendants to support the issue of non assumpsit by them pleaded, gave in evidence to the jury, a deed of trust executed by them, by which they conveyed certain real estate and all their partnership property of every description, to certain trustees for the benefit of such [**17]  of their creditors, as should within a limited time, give them a final discharge from the payment of their respective claims. In conformity with the provisions of this deed of trust, several of the creditors of Stone and Mullikin executed a deed of release, and among the number it was executed by John Smith, one of the partners of Lane and Smith, by the name of the firm of "Lane and Smith." To the admissibility of this release as evidence in the cause, the plaintiff by his counsel objected, upon the ground, "that it was not the deed of the plaintiff, or of the firm of James S. Lane and Smith, or of any person, constituting one of that firm." Which objection was overruled by the court, and the deed of release held sufficient to be given in evidence to the jury.
As a general position it is incontrovertibly true, that one partner cannot bind another by deed; but this well settled principle of law, was not applicable to the case then before the court. It was not the effect, or operation of the instrument of writing, to charge the partnership with a debt; but 

 [*321]  it was nothing more than a release, or discharge of a debtor to the partnership. See [**18]  3 Johns. 68, where chief justice Kent, in delivering the opinion of the court, holds the following language; "it is a general principle of law, that where two have a joint personal interest, the release of one bars the other, and I cannot perceive that the case of co-partners in trade forms an exception to the general rule. Each partner is competent to sell the effects, or to compound, or discharge the partnership demands. He is to be considered as an authorized agent of the firm, for all such purposes. Each has an entire control over the personal estate." See also 2d Wheat. Selw. 311, where it is said, "there is an exception to the general rule, that a partner cannot bind his co-partners by deed. A release under seal by one partner in the name of the firm, of a debt due the partnership, is binding on all the partners." The court below were therefore unquestionably correct in the opinion given by them, to which the first exception was taken. Nor do we think, that they erred in the opinion delivered by them, which is contained in the second exception. The plaintiff offered to prove by one of the creditors of the defendants, that he had executed the release before [**19]  it was signed by John Smith, and that Stone, one of the defendants, had represented to him, that the creditors generally, had consented to sign the said release, and that the witness had executed it under that impression; and further offered to prove by said witness and another witness, that one of the creditors had refused to execute the release, and the defendants, in order to induce him to sign it, had secretly agreed to pay him, and actually did pay the said creditor, without the knowledge of the other creditors, seventy-five per centum of his whole claim, which the plaintiff contended was a fraud upon the other creditors, and rendered the release void, and inoperative as to him. Which testimony the court refused to be given to the jury.

 [*322]  It is presumed that the ground upon which the counsel supposed the release to be invalidated, was, that a deceit had been practised upon the other creditors, by the payment of this extra sum to the refusing creditor. But we do not think such a position tenable under the circumstances of this particular case. There was no understanding that all the creditors were to sign the deed of release upon certain conditions, and to [**20]  receive nothing beyond their proportions of the trust fund, or that the deed should be void. If such had been the stipulation of the contracting parties, any underhand agreement to pay more, would have been a breach of faith, and a palpable violation of the principles of morality, and fair dealing. Small vs. Brashley, 2 Vern. 602. In such a case, a creditor would have a right to say, that he had been imposed upon; that the release had been obtained per fraudem, and was therefore void. But in the case now before this court, there is no one feature of fraud, or deception. There was no understanding between the parties, that all the creditors were to receive only a certain sum, by way of composition, for their respective demands; or that their respective releases should be void. On the contrary, the agreement was absolute and unconditional, that the defendants should be discharged, upon the creditors, who should sign the deed of release, receiving their respective proportions of the trust fund; indeed, the evidence offered only tended to prove, that the defendants had represented to the witness, that the creditors generally had consented to sign the release,  [**21]  and that he had executed it under that impression. We therefore think, that no deception was practised upon the plaintiff in this case, and that the judgment of the court below ought to be affirmed.
JUDGMENT AFFIRMED.  

39 of 43 DOCUMENTS 

PATRICK L. WATTS vs. JESSE GARRETT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 G. & J. 355; 1831 Md. LEXIS 23 

December, 1831, Decided 

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

On the 9th of July, 1828, the appellant brought Replevin, against the appellee, to recover a negro slave, alleged to be the property of the appellant. The defendant pleaded, "non cepit" property in himself, and limitations, to which they were replications, and issues were joined.

1. At the trial the plaintiff offered Margaret Willis as a witness, by whom he proposed to prove, that the negro in controversy was his property; but it being in proof, that the witness was guardian of the plaintiff, and that this negro was, during the plaintiff's minority, the property of the plaintiff, (which minority ended on the 1st September, 1827,) and during part of that minority in witness's possession, the defendant objected to her competency; and the court, (ARCHER, Ch. J., and KELL, A. J.,) sustained the objection. 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:

In an action of a replevin for a negro slave, the plaintiff proposed to prove by his former guardian, that the negro in controversy was the plaintiff's property; but it appearing, that this negro constituted a part of the plaintiff's estate during his minority, and during one period thereof had been in the witness's possession, the County Court held the witness incompetent. Upon appeal this was reversed.

When the competency of a witness is objected to on the ground of interest, the interest should appear. It should be seen by the court, in order that it may be able to determine its character, and whether it be such as to amount to a disqualification. It should not rest in mere conjecture or speculation, but should be certain and direct, and not possible only. Where the interest is of a doubtful character, the objection goes to the credit, and not the competency of the witness.  

COUNSEL:
C. Birnie, Jr. and Gill, for the appellant, who cited, Stark. Ev. 744, 1729. 1798, ch. 101, sub-ch. 12, sec. 15. Stewart vs. Kip, 5 Johns. 256. Abrahams vs. Bunn, 4 Burr. 2255. Mockbee [**2]  vs. Gardner, 2 Harr. and Gill, 176.

Belt, for the appellee, cited, Act 1798, ch. 101, sub-ch. 12. 2 Stark on Ev. 746, 747. Hungerford vs. Bourne, 3 Gill and Johns. 137.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*356]  BUCHANAN, Ch, J., delivered the opinion of the court.
It does not appear in the bill of exceptions, and looking to the record only we are left to conjecture, on what ground the objection to the competency of the witness offered on the part of the plaintiff was made and sustained, and her testimony rejected by the court. But we are informed 

 [*357]  by counsel in argument, that she was interested in the event of the suit, and therefore incompetent. If it appeared, that the effect of her testimony would have been to rid herself of a responsibility, and to cast it upon the defendant, the objection to her competency was well taken. But we do not perceive, that she had any direct interest in the event of the suit, sufficient to disqualify her. If she had any such interest, what was it? The mere circumstance that she had been the guardian of the plaintiff, during his minority, (then passed) surely was not of itself [**3]  sufficient; but it should have appeared, that she had incurred a liability during her guardianship, in respect of the property in controversy, which she might by her testimony have shifted to the defendant. But it is difficult to discover, what liability she could, by her testimony, have shaken from herself, and cast upon the defendant. The possession which it appears she had of the negro, during a part of the minority of the plaintiff, may have subjected her to a responsibility for the hire, or annual value of him; but that forms no part of the matter in controversy, and could not have been transferred to the defendant, by any testimony she could have given. On the contrary, being called to prove that the negro was the property of the plaintiff; if she did receive the hire or annual value of him, during the plaintiff's minority, and had not properly accounted for it, or it was lost by any culpable negligence, or inattention to her duty, the very evidence she was called to give, that he was the property of the plaintiff, was evidence going to fix her liability for such hire, or annual value, and so far against her own interest. When the competency of a witness is objected to, on the [**4]  ground of interest, the interest should appear. It should be seen by the court, in order that it may be enabled to determine its character, and whether it be such, as to amount to a disqualification. It should not rest in mere conjecture or speculation, but should be shown to exist, and to be certain and direct, and not possible only. For the bare possibility of an action being brought against the 

 [*358]  witness, furnishes no objection to his competency. And where the interest is of a doubtful character, the objection goes to the credit, and not to the competency of the witness.
In this case, we do not perceive that the witness offered by the plaintiff, was shown to have had any certain and immediate interest, one way or the other. She was legally entitled to the possession of the property, during the minority of the plaintiff, in her character of guardian, if it belonged to him; and for any thing appearing to us, may have surrendered up the possession, when he attained his full age. But it has been suggested by counsel, that she may have abused her trust as guardian, and improperly parted with the possession during the minority of the plaintiff, or by some misconduct, have incurred [**5]  a liability to be sued, for the value of the property, if the plaintiff should not recover against the defendant, in this action, and was therefore interested in sustaining the suit by her testimony.
It may be possible, but no such liability or misconduct has been shown; and we are not bound, or at liberty, merely for the purpose of rejecting her testimony, to presume that she did violate her duty; but rather, nothing appearing to the contrary, that she faithfully discharged it, and delivered the possession of the property to the plaintiff, when he became entitled to receive it. And the bare possibility that she may have rendered herself liable to an action, is not, we think, an objection to her competency. It is not like the case of Hungerford vs. Bourne, decided by this court, which has been referred to. In that case there was a clear and certain liability on the part of the witness, who had a manifest interest in sustaining the suit; whereas here, no liability is shown to exist.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

40 of 43 DOCUMENTS 

BRADLEY et ux. vs. HUNT, Adm'r of JACK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 54; 1832 Md. LEXIS 7 

December, 1832, Decided 

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

The appellants, John Bradley and Jane his wife, (formerly Jane Jack,) filed the present bill against the appellee, Jesse Hunt, administrator of William Jack, on the 20th of April, 1831. The bill alleged, that William Jack, the former husband of the complainant, Jane, being the owner, and possessor of a certificate or obligation, of the Maryland Savings Institution, for a considerable sum of money, in September, 1829, and when the said Jack was lying dangerously ill, and expecting to die, gave the same to the said Jane, by an actual delivery thereof, in the presence of witnesses, and on the evening of the same day, and within a few hours thereafter expired. That the deceased at the time, was of perfectly sound and disposing mind, memory, and understanding. That the defendant Hunt, took our letters of administration upon the said Jack's estate, and although the legal interest in said certificate vested in him in that character, yet the gift was good as a donatio mortis causa, and vesting the equitable interest in the donee, the said Hunt was but a trustee of the legal title for her benefit. That after the death of her husband, the said Jack, she [**2]  the complainant Jane, delivered said certificate to his said administrator, for the purpose of his doing what might be necessary to secure her the beneficial use of the same, but that he refuses to recognize her title thereto. The bill then prayed, that said administrator may be compelled to deliver said certificate to the complainants, and to do whatever may be necessary to enable them to receive the money for the same, and for general relief.

The answer admitted, that the intestate in his life-time, owned such a certificate as the bill speaks of, payable to him or his order. That he died clear of debt, and that at the time when the alleged gift is said to have taken place, he was of sound mind, &c. The fact of the delivering of the certificate, by the intestate, to his then wife, (complainant Jane,) is not admitted or denied, and complainants are put to the proof of that fact. That shortly after the decease of his intestate, and before he had taken out letters of administration on his estate, the complainant Jane, came to him the defendant, bringing in her had the certificate aforesaid, saying that it had been given her by her deceased husband, by an unwritten or nuncupative [**3]  will. That after the defendant had become the administrator of the said Jack, he paid the complainant Jane, her full distributive share of her husband's estate, but that he could not recognize her right to said certificate, which was not endorsed by his intestate, and upon which, when he obtained the money at the Savings Institution, he was required to endorse his name as his administrator. The answer admits the intermarriage of the complainants.

The certificate of the Savings Institution, the subject of this suit, is in the following form:

"Certificate of special deposit, No. 755.

$ 568.

Baltimore, January 1st, 1829.

Mr. Wm. Jack has this day deposited in the Maryland Savings Institution, five hundred and sixty eight dollars, which sum, with interest thereon, at the rate of four per centum per annum, will be paid to his order at thirty days sight."

A commission issued to take evidence, and proof was offered of the delivery of the certificate to the complainant Jane, by her former husband in his last illness; and by the defendant it was proved, that he had paid her, her distributive share of her former husband's estate. The proof is not introduced, because [**4]  no question in regard to its sufficiency or insufficiency, was made in the argument, or decided by this court.

BLAND, Chancellor, (at Sept. term, 1831,) dismissed the bill with costs, when the complainants brought the present appeal.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A promissory note, payable to a payee or order, is not the subject of a donation mortis causa, by mere parol.

The mere delivery by a husband, in his last sickness, to his wife, of a promissory note, payable to him or order, is not valid, as a donatio mortis causa. No property in such a note passes by delivery; being a chose in action, it must notwithstanding the delivery, be sued in the name of the executor of the husband.

Bank notes, and promissory notes, payable to bearer, pass by delivery as money, and constitute valid donations when delivered; for in such cases the property in, and legal dominion over the thing intended to be given, pass with the possession.

Whether the distinction prevailing in England, between the case of a bond and a promissory note payable to order, as to donations mortis causa, will be adopted here. (qr.) 

COUNSEL:
Campbell for the appellants.

The certificate vested in the complainant Jane as a donatio causa mortis, and consequently the administrator has no title to the same, or only as the trustee of the complainants. 2 Pow. on Mort. 1047. Hedges vs. Hedges, Prec. in Chanc. 269. 1 Roper on Leg. 26, 27. The intention to give, and the delivery, being clearly proved or admitted, the only question is, whether the thing be susceptible of a donatio mortis causa.

There is a difference between the giving the donor's own note, and the note of a third person. The delivery of the latter may be good as a donatio mortis causa, when the former would not. Tate vs. Tilbert, 4 Bro. Ch. R. 286. Pennington vs. Gittings, 2 Gill and Johns. 217. Drury vs. Smith, 1 P. Wms. 404. Lawson vs. Lawson, 1 Ib. 440. Miller vs. Miller, 3 Ib. 356. Hill vs. Chapman, 2 Bro. Ch. R. 612. Although the failure of the donor to endorse the certificate, would render [**5]  it necessary for the donee to use the name of his legal representative to recover the money by suit, still the equitable interest would pass. Noland vs. Ringgold, 3 Harr. and Johns. 218. Williamson vs. Allen, 2 Gill and Johns. 355.

Nicholas for the appellee.

The question is, whether a note payable to order, and not endorsed by the payee, can be the subject of a donatio mortis causa? That it cannot, he referred to Pennington adm'r of Patterson vs. Gittings, 2 Gill and Johns. 216. Miller vs. Miller, 3 P. Wms. 356. Ward vs. Turner, 2 Ves. Sr. 431. Duffield vs. Elwes, 1 Peters' Cond. Ch. R. 120. 2 Kent's Com. 362. He insisted that the gift was not complete, because the money could not be received by the donee without the endorsement of the donor's representative, and as the court would not compel the donor if alive, to consummate the gift, so neither will they compel his representative, the present defendant.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*58]  BUCHANAN, Ch. J., delivered the opinion of the court.
We are relieved from an examination of the question of fact, whether there was or not, a sufficient delivery by [**6]  William Jack, the deceased, to the wife of the complainant, John Bradley, of the instrument of writing which forms the subject of the bill, that question being waived by the counsel on the part of the appellee; and the only inquiry to which our attention is directed, is, whether a promissory note to the payee or order, is the subject of a donatio mortis causa, by the payee. It is a settled rule by law, that such a gift cannot be by mere parol, but that a delivery of the thing intended to be given, is essential to the perfection of the gift; and it was so held by this court, in Pennington adm'r of Patterson vs. Exec'r of Gittings, 2 G. & J. 208, which was the case of a delivery by a father to his daughter, of a certificate of shares in the capital stock of a bank; and the object of the bill was to compel the executor of the father to transfer the stock to the daughter, to whom, it was the intention of the father to have given it. But as the delivery of the certificate was not a transfer and delivery of the stock, the thing intended to be given, and which could only be transferred on the books of the bank, it was held, not to be a donation [**7]  mortis causa, for want of such transfer, that being the only mode in which the shares of stock were susceptible of being delivered.
To constitute a donatio mortis causa, the gift should be full and complete at the time, passing from the donor the legal power, and dominion over the thing intended to be given, and leaving nothing to be done by him, or his executor, to perfect it. Hence bank notes are the subjects of such gifts, they being considered as money, and the property in them, passing by delivery. Miller vs. Miller, 3 P. Wms. 335--and so as to promissory notes payable to bearer, which pass by delivery, and the property, and legal dominion over the thing intended to be given, passing with the possession from the donor to the donee, they do not require 

 [*59]  to be sued in the name of the executor, and nothing is necessary to be done by him to perfect the gift of the money.
But not so with the delivery of a promissory note payable to order, which has been held to be insufficient to pass to the donee, the money, the thing intended to be given; upon the ground that no property in it passes by delivery, and being a mere chose in action, it must [**8]  notwithstanding the delivery, be sued in the name of the executor. So that the gift of money is not complete at the time, the legal dominion over it, remaining in the donor, and on his death, passing to his executor, without the use of whose name it cannot be perfected.
This may seem to be technical; but if the rule is admitted, that a delivery of the thing intended to be given, is essential to the perfection of the gift, it must follow, that a promissory note payable to order, is not capable of being the subject of a donatio mortis causa. And if we were at liberty to do so, we should not be disposed to relax the rule, which would be to open still wider, the door already sufficiently wide, to frauds and perjuries, and the exercise of undue influence by the artful and designing, upon the week and unwary.
There has been an exception to the rule, in the case of a bond. In Snellgrove vs. Baily, 3 Atk. 214, the delivery of a bond was held by Lord Hardwicke, to be a good donatio mortis causa. And in Ward and Turner, 2 Ves. 431, he assigns as reasons for that decision, "that he who has possession of a bond, may destroy it, the consequence [**9]  of which is, that it puts it in his power to destroy the obligee's power to bring an action, because no one can bring an action on a bond without a profert in curia," and "that the law allows it a locality, and therefore that it is bona notabilia," and adds, "that this is conclusive." And in Gardner vs. Parker et al., 3 Mad. Ch. 102, the Vice Chancellor, relying upon Snellgrove vs. Baily, made a similar decision.

 [*60]  In Duffield vs. Elwes, 1 Sim. & S. 239, the Vice Chancellor said, he considered "the case of a bond to be an exception, and not a rule." The reasons assigned by Lord Hardwicke for his decision, that a bond is the subject of a donatio mortis causa, do not exist here, and whether the distinction prevailing in England, between the case of a bond, and a promissory note to order, (the force of which is not now perceived,) should be adopted here, it will be time enough to determine when the question shall be brought before us.
DECREE AFFIRMED.  

41 of 43 DOCUMENTS 

RAPHAEL MORGAN vs. MORGAN, Administrator d. b. n. OF BOOTHE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 395; 1832 Md. LEXIS 25 

December, 1832, Decided 

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

This was an action of Debt instituted on the 30th of June, 1828, by the appellant, against the administrator of Boothe, who dying whilst the cause was depending, the present appellee appeared, and became a party.

The suit was commenced on an injunction bond, (in which the intestate of the appellee, and one Walker, were principals,) dated on the 6th day of January, 1823, in the penalty of $ 2,000, with the following recital and condition:

"Whereas the above bound James Walker and Jeremiah Boothe, are about to obtain an injunction to stay proceedings at law, on a judgment rendered against them in Saint Marys County Court, by the above named Raphael Morgan for, &c. Now the condition of this obligation is such, that if the said James Walker and Jeremiah Boothe shall prosecute the said writ of injunction with effect, and satisfy and pay, as well the said sum of money with costs, as all costs, damages, and charges that shall accrue in the Chancery Court, or be occasioned by the delay of execution on the said judgment, unless the Court of Chancery shall decree to the contrary, and shall, in all things, obey such order and decree as the [**2]  Chancery Court shall make in the premises, then the above obligation to be of none effect, else of full force and virtue."

This bond was approved by one of the judges of Saint Marys County Court, and certified by the clerk of that court to be a true copy from the original in his office.

To the plaintiff's declaration on the above bond, the defendant pleaded that the said James Walker and Jeremiah Boothe, in the condition of the writing obligatory mentioned, their executors and administrators have, in all things, well and truly stood to, abided by, obeyed, and performed the order and final decree of the Chancery Court, made in the cause mentioned in the condition of the writing obligatory aforesaid, to wit, at the county aforesaid, according to the form and effect of the same condition, &c.

The replication, after setting out the judgment, to stay proceedings on which the injunction was obtained, stated that it was so proceeded between the said parties, on the bill in Chancery, mentioned in the condition of the said writing obligatory, and filed by the said James and Jeremiah, in Saint Marys County Court, as a court of equity, against him the said Raphael, which the said [**3]  court, the said Raphael avers, is one and the same court as that mentioned in the condition of the writing obligatory aforesaid, by the name and style of the Court of Chancery, and not other or different court; that, afterwards, at a County Court, sitting as a court of equity, begun and held, &c. on, &c., it was by the said court of equity then and there ordered and decreed, that the injunction issued in the said cause, to stay the execution of the judgment aforesaid, be discontinued and dissolved, and afterwards, at the said court of equity, held, &c., on, &c., the said James and Jeremiah struck off and discontinued their said suit against the said Raphael, as by the record thereof in said court remaining appears, &c.

The defendant demurred generally to the replication, and the plaintiff joined in demurrer.

The County Court ruled the demurrer good, and gave judgment for the defendant, and the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Where the defendant, in an action at law, gave a bond reciting his intention to obtain an injunction to stay further proceedings, and conditioned to perform such order or decree as the Court of Chancery should pass in the premises, &c. if afterwards, he in fact obtains an injunction from a County Court, sitting as a Court of Equity, a failure to perform the decrees or orders of the County Court, will not give the other party a right of action upon such bond, although it was approved by the judge of the County Court who granted the injunction, and filed in the injunction cause.

In assigning a breach of the condition of such a bond, it is error to aver a failure to prosecute the injunction with effect, upon the equity side of the County Court. This defect may be taken advantage of upon general demurrer.

In an action upon a bond, containing several stipulations in its condition, if the defendant relies upon the plea of performance, that plea should disclose either generally, or specially, that he has complied with all the stipulations of the condition which may be required of him, as the condition is for his benefit.

Upon general demurrer to a replication, the court will examine if the defendant's plea be valid, and if that be defective, and the first error in the pleadings, give judgment against him.

When the court believe the plaintiff can recover nothing, they will not award a procedendo, though they reverse the judgment of the County Court rendered in favor of the defendant.  

COUNSEL:
Brewer, for the appellant.

The bond upon which the present action is founded, was not taken under the act of 1723, ch. 8, sec. 5, because, although the condition is the same, a bond under that act must be approved by the [**4]  court, not by a single judge in the recess. It was approved in virtue of the act of 1814, ch. 94, sec. 2, giving to each of the judges, power to grant writs of injunction in the same manner, &c. as the chancellor of the State can or may exercise. By the act of 1793, ch. 30, sec. 14, the chancellor has the power to prescribe the penalty, and approve the bond before the injunction is granted. The judge has, of course, the same power when he grants the injunction, and having approved the bond, and granted an injunction on the security of that bond, can the words "Chancery Court" be construed to mean other than his court exercising "Chancery powers?" If these words must, in general, be construed to mean the High Court of Chancery mentioned in the act of 1715, title section 7, and in the title of the act of 1785, ch. 72, and in many other acts, and the Court of Chancery of the State of Maryland, in the act of 1817, they ought, as it was certainly intended here, to have a meaning qualified and regulated by the jurisdiction, where the suit, the subject matter of the recital of the bond was to be entertained, and, as is admitted by the pleadings in this cause, was entertained. To give, then,  [**5]  the construction contended for by the appellee, would enable him to perpetrate a fraud, or lose the appellant his just demand, by the mistake of the appellee or the judge who approved the bond. Either of these, this court would be solicitous to prevent, if it could be done without giving a very forced construction to the words. The construction contended for by the appellant, is not a forced one. Chancery, in common parlance, means equity, though Lord Coke's definition would not give it that meaning. Thus, when one says, "I will go into Chancery," he would be understood, "I will institute proceedings in equity." In the act of 1779, ch. 25, fees are allowed in "Chancery proceedings in County Courts," considering them pro hac vice, Courts of Chancery.

The act of 1814, ch. 94, speaks of Chancery proceedings in the County Court. In both these laws, "Chancery is used as synonymous with equity." The county courts, therefore, acting as Courts of Equity, are acting as Courts of Chancery, and the definite pronoun "the" in the condition of the bond, "the Chancery Court," applies not to the high Court of Chancery, but to "the Chancery Court," in which the injunction mentioned in the recital,  [**6]  was about to be obtained. 2. But if the replication should be considered defective, so also is the plea, and upon demurrer the court goes up to the first fault.

The plea avers a performance on the part of the defendant, of the order or decree of the Chancery Court, and not a performance of the condition of the bond. If, therefore, the replication is bad, still the record must be sent back, and the plaintiff will then be entitled to a judgment by default, and to such damages as he can show he has sustained on an inquiry.

V. H. Dorsey, for the appellee.

In this case, the plaintiff's right to recover is resisted by the general demurrer on the part of the defendant. It is contended, that the breach in the replication is not in conformity with the condition of the bond sued on. The condition of the bond is to prosecute the injunction with effect in the Court of Chancery. The breach assigned is, that the injunction was not prosecuted with effect in Saint Marys County Court as a court of equity, and that is the Court of Chancery alluded to in the bond. Saint Marys County Court exercising equity powers, is not a Court of Chancery. The courts of the State can only be known to [**7]  this court, by the name given to them by the act which erected them. The Court of Chancery is known to the law as the Court of Chancery. The first statute recognizing a bond of Chancery passed in April, 1715. The Court of Chancery was the only court known to the law that exercised equity powers, until the year 1792, when the Legislature passed an act giving the county courts equity powers in certain cases. The act of 1729, ch. 3, speaks of the high Court of Chancery as the Court of Chancery. Vide act 1773, ch. 7. So the act of 1785, ch. 72. And so in all the acts. The county courts exercising equity powers, are not known to the law as Chancery Courts. The first statute giving to the county courts equity powers, was passed in 1791. Vide ch. 78. That act was entitled "An act respecting equity jurisdiction of the county courts. By that act, an appeal is given from the county courts to the Chancery Court. By the act of 1723, power was given to the county courts to grant injunctions. The bond prescribed is like the present one. The distinction is recognized by the acts from 1798, to 1819. So by the act of 1814, ch. 94, entitled an act respecting the equity jurisdiction of the county courts.  [**8]  The act of 1815, ch. 163, and the act of 1816, ch. 134, preserves the distinction. So the act of 1817, ch. 154, and the act of 1819, ch. 193, entitled an act to enlarge the powers of the Court of Chancery, and the county courts as courts of equity. In the last act the county courts are called courts of equity; Vide, the various sections beginning at section seven. So by the act of 1821, ch. 183. These statutes plainly show that the Court of Chancery, and the county courts exercising equity powers are distinct courts, with different and distinct names. The distinction is carried out in all of the subsequent statutes, vide, act of 1825, ch. 122, the act of 1826, ch. 159. By the act of 1831, ch. 307, and by the act of 1831, ch. 311, they are called courts of equity. By them the county courts exercising equity powers, are not Courts of Chancery. The breach in the replication is defective. The condition of the bond is to prosecute the injunction with effect in the Court of Chancery. The failure to prosecute a suit with effect in Saint Marys County Court as a court of equity is not a breach of the bond. The condition of the bond is different from the breach alleged. But admitting that the [**9]  county courts are Courts of Chancery, yet the Chancery Court, mentioned in the bond, is the high Court of Chancery. Without any words to explain or designate the Court of Chancery, that court must be known to this court only as it is known to the law. The averment cannot change the nature or character of the condition. The obligation of the bond cannot be extended or varied. But it is said that the plea of performance is defective. The condition of the bond is that Boothe and others shall prosecute with effect, &c. and abide by such order and decree as the Court of Chancery shall make. The plea avers a performance of the said bond, that Boothe and others, did well and truly perform the order and decree of the Court of Chancery according to the condition of the bond. But if the plea is defective, and the court should be of opinion, that the facts as stated in the replication, will not support an action on the bond, the court will not remand the case. The Baltimore and Havre de Grace Turnpike Company vs. Barnes, 6 Harr. and Johns. 61.  

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

OPINIONBY:
EARLE 

OPINION:

 [*400]  EARLE, J., delivered the opinion of the [**10]  court.
A general demurrer was put in to the replication in this case, and by the court below was ruled good. The suit being upon an injunction bond, the plaintiff set out his claim in the replication, and charged among other things, 

 [*401]  as a breach of the bond sued on, a failure to prosecute the injunction with effect, on the equity side of Saint Marys County Court, when in truth the principal obligors had engaged in the condition, to prosecute their writ of injunction with effect in the Court of Chancery. This was clearly a breach not within the contract the plaintiff had declared on, and was palpably erroneous; and there is no doubt of the correctness of the court's decision, if there is not a substantial fault committed by the defendant in an earlier stage of the pleadings. This was asserted, and insisted on by the appellant before us, and our attention was directed to the plea as being equally defective with the replication.
The plea purports to be a plea of performance, by the principal obligors, and yet it alleges a fulfilment by them of but one of the several stipulations in the condition of the bond, and leaves the rest unnoticed. Its assertion is, that the principal [**11]  obligors have in all things, well and truly stood to, abided by, obeyed, and performed the order and final decree of the Chancery Court made in the case mentioned in the condition of the writing obligatory, according to the form and effect of the same condition.
The injunction bond is a penal bond, and the condition is for the benefit of the obligors, and if all is not performed that is undertaken to be done, it appears to us, the bond is forfeited, and they become liable to the penalty, and therefore it is necessary to plead a compliance with all its stipulations. This is usually done in such cases, in a plea of general or special performance, neither of which this plea can be called. It pleads a part observance only of the covenants of the obligors, and leaves it to conjecture and surmise, whether the other covenants of the condition have been performed or not. We reverse the judgment of the County Court, and as we believe the plaintiff can recover nothing on this bond, we decline sending it back on a procedendo.
JUDGMENT REVERSED.  

42 of 43 DOCUMENTS 

BIRELY'S EXR'S & HOLTZ vs. JOHN AND JOSEPH STALEY, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 G. & J. 432; 1833 Md. LEXIS 18 

December, 1833, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the equity side of Frederick county court.

This bill was filed on the 15th of February, 1823, by Elizabeth Birely, the testatrix in her life-time, and Nicholas Holtz against the appellees. It stated that Jacob Staley, deceased, on the 16th of October, 1821, was indebted to the complainant by notes, single bills and bonds, to a large amount. That suits on that day were pending in Frederick county court, on said notes, &c. against the said Staley, (as will be seen by exhibit No. 2,) who at the time thereof, and for many years before, had possessed a large real and personal estate, the whole of which real estate, by a deed of bargain and sale on the said 16th of October, 1821, he conveyed to John and Joseph Staley, (the appellees,) his two sons, which deed the complainants charge to be fraudulent, and covinous, and made for the purpose of disturbing, hindering, and delaying them, and the other creditors of the grantor. That afterwards, on the 20th of October of the same year, the said Jacob Staley executed a bill of sale to his said sons, of all his personal property, they then well knowing, that their father was indebted to these complainants as aforesaid. That he continued [**2]  so indebted at the period of his death, and that he died intestate, and insolvent in March, 1822. That the said bill of sale also is fraudulent and void, as against the creditors of the grantor. The prayer of the bill is, that the deeds may be vacated, the property sold for the benefit of the creditors of the grantor, and for general relief.

Exhibit No. 2, being transcripts of docket entries, showed among other things, that a judgment was rendered against Jacob Staley, at the suit of Elizabeth Birely, on the 24th of October, 1821, for $ 1000, with interest from 1812, and costs. That a fieri facias issued thereon to March court, 1822, which was returned Nulla Bona.

The answers of the appellees, John and Joseph Staley, say, that they are willing to admit, though they have no personal knowledge on the subject, that the notes, bonds, and single bills exhibited by the complainants, show truly the amount due from Jacob Staley to them; and that suits were pending on them as alleged on the 16th of October, 1821. They deny that the deed executed by the said Staley to them on that day, conveyed his whole real estate; on the contrary they aver, that after the delivery to them of said [**3]  deed, he was seized and possessed of real estate, both in Frederick and Montgomery counties, abundantly sufficient, as they believe, to pay the claims of the complainants. They deny that said deed was executed with a covinous, or fraudulent intent, or for the purpose of disturbing, hindering, or delaying any of the creditors of the grantor; and allege that the same was made bona fide, and for a good and valuable consideration. That the bill of sale of the personal property was also for a bona fide, and valuable consideration. They admit that at the time of their execution, they were informed, and believed that suits were pending against Jacob Staley, but to what amount they did not know, nor did they know that he was insolvent. They also admit that he died intestate, and insolvent.

The answers of the other defendants are not supposed to be material.

A general replication was filed to the answers, and a commission issued, under which proof was taken and returned; but as the evidence has no necessary connection with the questions of law decided by the court, it is omitted.

It was agreed that the transcripts of the docket entries exhibited by the complainants, should be [**4]  considered as if complete records had been made in those cases, and exhibited in this case.

The court (SHRIVER, A. J.) dismissed the complainant's bill with costs, upon which the record was brought by appeal to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

Rules of pleading in equity are not to be governed by the same technicality as to matters of form, that controls proceedings at law. Courts of equity look to substance, not form.

One creditor may proceed in equity to vacate conveyances void under the statute of Elizabeth, and if successful, the fund arising from the sale of the property covered by them may be retained in court until the other creditors are notified to come in, and assert their claims to participate.

It is a general principle, that where a creditor seeks the aid of a court of equity to pursue property fraudulently conveyed away, a judgment must be first obtained against the debtor, before his lands fraudulently granted can be reached; in such a pursuit against personal property, a fi fa also must first have been issued: but where the debtor died after suit brought at law, and before judgment, and the answer set up no such defence, this principle does not apply.

Where creditor's claims to relief rest upon liens to be acquired through judgment or execution, it follows as a necessary consequence, that out of the fund pursued, if land, they must be paid according to the seniority of their judgments; if personal property, according to their respective priorities acquired by the delivery of their several fi fa's to the sheriff.

But a court of equity in Maryland would not give any such priority to a creditor who had judgment merely against an administrator of his debtor. All creditors without judgment in the life-time of the fraudulent grantor would come in pari passu.

A judgment against an executor or administrator, not only does not bind real assets, but is not even prima facie evidence of a debt, where the real estate of a deceased debtor has been sold for the payment of debts due by him.

A creditor of a deceased party cannot obtain judgment against his heirs where they have no assets by descent.

Where a court of equity is satisfied from the facts in the cause, that a deceased debtor left no personal estate to be administered, they will not require letters to be taken out, or proceedings against an administrator to be shown, though under other circumstances, such measures might be deemed necessary to make proper parties to the suit.

To a bill to vacate conveyances, charged to be fraudulent and comprising all the grantor's real estate, the defendant, his grantee, denied the facts, and averred, that after the delivery of the deed to him, the grantor was seized, and possessed of real estate both in F and M counties, abundantly sufficient, as he believed, to pay complainants. HELD, that the fact of the grantor's owning other real estate in F and M counties was in issue in the cause, and being an affirmative allegation in the answer, the burden of proof was on the defendant.

The mere production of deeds of conveyance, unaccompanied by any proof of the existence of the property conveyed, and the title of the grantor thereto, or his possession thereof, or the possession thereof by the grantee, is wholly insufficient to prove that the grantee had the property described in the conveyance, or that it was a fund out of which creditors might have been satisfied.

To prevent a court from vacating a conveyance made to hinder and delay creditors, on the ground that the grantee had sufficient property independent of that conveyed to pay his debts, it must appear, not only that it was sufficient to pay the complaining creditor, but all the grantor's creditors.

A deed otherwise void under the statute of Elizabeth, cannot be sustained on the ground of a secret, or oral contract between the grantor and grantee, that the property conveyed should be held in trust for the benefit of all the creditors of the grantor. A secret contract so made could not be enforced either at law or in equity, at the suit of the grantor or his creditors.

Evidence obtained upon leading interrogatories will not be rejected at the hearing, where the same facts are obtained from the same witness, upon other interrogatories not liable to that objection.  

COUNSEL:
Taney, (Att'y Gen'l U. S.) Palmer, and Duckett, for the appellants.

1. It has been objected, that this bill was filed by two, of many creditors. The answer to this objection is, that whether the unnamed creditors are parties or not, still according to the principles, and practice of the chancery court, they have a right to come in after the decree, and participate in the fund. They are therefore, in substance, parties, though not made so in terms by the bill. The same strictness in pleading is not observed in chancery as at law. Tiernan vs. Poor and Wife, 1 Gill & Johns. 230. This bill is essentially a creditor's bill. Strike vs. McDonald and Son, 2 Harr. and Gill, 220. Ib. 232, 233.

2. The next objection is, that there is no allegation that the complainants were creditors at the time the bill was filed. But the averment is, that Staley was their debtor by bonds, &c. at the date of the deeds, and that he died indebted, and insolvent;  [**5]  and as the bonds, &c. the evidences of the debt are produced, the legal presumption is, that they were unpaid when the bill was filed. It is a conclusion of law, and need not be averred.

3. The answer to the objection, that the complainants do not aver themselves to be judgment creditors, is that the record shows that fact, and as the whole record is exhibited, and made a part of the bill, it must have the same effect as if it had been copied into it. In England, the practice is to copy the exhibit in the bill. In Maryland the practice is different, it is merely referred to, and the prayer, that it may be taken as a part of the bill, gives it the same effect as in England. By such prayer every part of the exhibit is considered as being actually incorporated into the bill. It is not merely evidence, but a part of the pleadings. If the object was simply to make it evidence, the proper, and regular course would be to file it with the commission. Every fact contained in the exhibit is in substance brought before the court, by the prayer, that it may be made a part of the bill or answer. Suppose a party pleads a deed to which recording is necessary, can it be said, that he must aver [**6]  that it was recorded, although the deed itself shows that it was recorded? The reference to the exhibit, was to show the situation of the debt at the time the bill was filed, and it appears that it had been brought to judgment, and that a fieri facias upon it had been returned nulla bona. The allegation however is, that the debt was in suit, and such was the fact notwithstanding the judgment, as the plaintiff was still pursuing his legal remedy to recover the money. It is evident the pleader so understood the word suit, and though he may have been mistaken as to its technical meaning, if the court can see clearly what was intended it is sufficient. Tiernan vs. Poor and Wife, 1 Gill and Johns. 230.

But it was not necessary to allege that judgments had been recovered. The deeds are assailed upon the ground of fraud, which alone gives the court complete jurisdiction. There is nothing in the statute which says that the party seeking to set aside a deed upon the ground of fraud must be a judgment creditor. This is not like those cases on which the chancery jurisdiction depends upon some defectiveness in the legal tribunals. The jurisdiction here is original, and concurrent, and the [**7]  relief likewise is original, and not ancillary. In Brinkerhoff vs. Brown, 4 Johns. Ch. Rep. 679, there was in fact no judgment at the time the bill was filed, and the court does not say if there was it must be pleaded. Contracts required by the statute of frauds to be in writing, need not be averred to be in writing, though the proof must show them to be so, and therefore it does not follow, that because a judgment is necessary to be proved, that it must be pleaded. But it was not necessary either to allege, or prove a judgment to have relief against these deeds.

In the first place, it is not a bill by a single creditor, but is substantially on behalf of all the creditors of the grantor. It prays that the property may be sold for their benefit, and of course, if there are judgment creditors, they would have the benefit of the fund. The proceeding is not under the act of assembly, which only gives the creditor a right to resort to the land, after the personal estate is exhausted. If in this case, the complainant should be required to sue the administrator, his judgment would not have been evidence, either against the heir at law, or the grantee. Harwood vs. Rawlings' Heirs, 4 Harr.  [**8]  and Johns. 126. Gaither & Warfield vs. Welch, 3 Gill and Johns. 262.

These deeds are good as between the parties to them, and of course the personal estate conveyed by them would not have been assets in the hands of the administrator; and as regards the land, a judgment against the administrator would not have been evidence to affect it. If the property in these deeds was only secondarily liable, the objection might be a good one, but they being fraudulent, the creditor has a right to go against it in the first instance. As real estate in Maryland is liable to be sold for simple contract debts, a judgment could not be required to create a lien upon it. The cases cited on the other side merely decide, that a judgment is necessary when the jurisdiction of the court of chancery is subsidiary, and not original, and concurrent, as here. Coop. Pl. 149. Smithier vs. Lewis, 1 Vern. 398. 1 Eq. Cases Abr. 132. Copis vs. Middleton, 1 Mad. Rep. 556. The American cases establish the same proposition. It will be found in them all, that where judgments have been decided to be necessary, it has been where chancery has been called upon to aid a court of law. and not to exert an original jurisdiction.  [**9]  And they are cases where a party seeking the aid of the court, has been asking for a preference; and not as here, that the property should be sold for the common benefit of all the creditors, according to their several rights. Wiggins vs. Armstrong, 2 Johns. Ch. Rep. 144. Hendricks vs. Robinson, Ib. 296.

The case of Sluby and Jones, in 5 Harr. and Johns. 381, was the case of a voluntary conveyance, and was only fraudulent if there were no other sufficient assets; and therefore the party impeaching it, was bound to show such insufficiency by proceedings at law. The circumstances of this case are materially different. Here the deeds are charged to be void, as being made to hinder and delay creditors, and if that effect is produced, it is of no consequence whether there are any other assets or not. Now if the fact should be, that there is other property in Montgomery county and elsewhere, as alleged in the answer, (though there is no proof of it,) still the creditors would be hindered and delayed, if they are compelled to go there in search of it. The cases which decide that a deficiency of the personal estate must be shown, are cases in which that deficiency is the basis of the [**10]  equity jurisdiction to charge the land.

If however, this objection would have been valid at a different stage of the proceedings, and in different way, still it cannot be made at the final hearing. It should have been taken by demurrer.

4. As to the objection that the personal representative should be before the court. Now in the first place the debt is admitted, and it is admitted that the deceased left no personal assets. Where then the necessity for the personal representative. He could neither controvert the debt, nor contribute to its payment. Besides, as these deeds are good as between the parties, all who have any interest are in fact before the court. Dorsey vs. Smithson, 6 Harr. and Johns. 61. And moveover, as the liability of this property does not depend upon the insufficiency of the other property, there could be no necessity to make parties of those who are entitled to the other property. The property contained in the bill of sale, would not be assets in the hands of the administrator, nor would the land descend to the heir at law. Dorsey vs. Smithson, 6 Harr. and Johns. 61.

William Schley and F. A. Schley, for the appellee.

It is necessary to examine [**11]  the pleadings as well as the proof. The record presents some interesting points, apart from the main questions on the merits.

The bill charges that the two deeds severally marked No. 3 and 4, were made with intent to delay, hinder, and defraud the grantor's creditors. The object of this bill is to vacate these deeds, and to obtain, as consequential relief, a decree for the sale of the real and personal property which they embrace. The bill is preferred by two of the grantor's creditors. They show that there are many other creditors, and that some of those other creditors hold judgments against the grantor, of an anterior date to any judgment of either of the complainants. This introduces a question of practice.

1. Ought not the other creditors to have been made parties to this proceeding, either in fact, or at least by representation of their interests?

(1.) As mere creditors. Two of many creditors cannot file such a bill independently; they must make all the other creditors parties, either in fact, by conjoining them as complainants, or by calling them in as defendants; or else by representation of their interests, by exhibiting the bill expressly in behalf of the complainants,  [**12]  and all other creditors who may come in, &c. Leigh vs. Thomas, 2 Ves. Sen. 312. Hendricks vs. Robinson, 2 Johns. Ch. Rep. 296.

(2.) As incumbrancers. The judgment creditors are interested not merely in the result of this suit, as are creditors at large; they are in fact incumbrancers, and have a lien on the real estate which is now sought to be sold. Even if the general principle above asserted cannot be maintained, still this branch of the objection is directly within the rule, "that all the parties interested in the subject matter, should be brought before the court." Coop. Plead. 33. Cromwell vs. Owings, 6 Harr. and Johns. 10. Darne & Gassaway vs. Catlett, 6 Harr. and Johns. 475. The rule is broadly laid down in Clark vs. Long, 4 Rand. 451. This is a proceeding in rem. It is not analogous to cases of proceedings to compel the performance of a trust; as by a legatee, or by a creditor against an executor, in respect of assets in his hands. Such latter proceedings are merely in personam. Attorney vs. Cornthwaite, 2 Coxe's Cas. 43. Bedford vs. Leigh, 2 Dick. 708.

2. The second point has relation to the requisite certainty in pleadings in equity. The complainants do not show,  [**13]  by any of the averments of their bill, either by direct allegation, or by the statement of facts, from which it would result as a legal consequence, that they were then creditors when the bill was filed.

(1.) Is this necessary? At law it would be clearly so. There it is not sufficient to show in a declaration, that a right of action existed at some given antecedent day. A subsisting present right must be shown. The plea of solvit post diem for example, would cover the whole time up to the day of the impetration of the writ; the declaration must have a like scope, or it would be insufficient on demurrer. The breach must be that the defendant hath not yet paid, &c. The position may be aptly illustrated by the familiar case of an action of debt against an executor. It will not suffice to aver non-payment by the testator; you must go further, and aver non-payment by the representative. It is admitted, that in equity the same categorical certainly is not required in all cases as at law; but whatever is necessary to make out the complainant's title, must be positively averred. Coop. Pl. 5, 6. So whatever is necessarily within the complainant's knowledge. Ib. And in general, there must [**14]  be the same strictness in equity as at law. Mitf. Pl. 294. Beames' Pl. in Eq. 8. 2 Atk. 632. 1 Mont. on Pl. 26.

(2.) If then this be necessary, has it been sufficiently averred?

The bill was filed on the 10th February, 1823. The complainants say that the grantor was indebted to them, severally, on the 16th October, 1821; and that he was indebted at his death, which occurred in March, 1822; and that he died insolvent. Now if it follows as a legal conclusion, that because the grantor was their debtor when he made these deeds, and that he died so indebted, and was then insolvent, the debts continued unpaid, and in action, up to the time of filing this bill; then the averment of these facts is tantamount to an averment that the debts were subsisting, and unpaid when the bill was filed, but if such legal conclusion does not follow, then the averment is not tantamount, and not sufficient. The distinction must be kept up between pleading and evidence. If the complainants had sufficiently averred that their claims were subsisting, and the answer had denied the allegation, and the parties were at issue upon this fact, under the general replication; then evidence that the grantor was [**15]  indebted at his death, would, upon the presumption of continuance, be sufficient to throw upon the defendants, the necessity of showing a subsequent discharge. It would in other words, be open to the defendants to show, if they could, such subsequent discharge. They might prove payment by the heirs at law, by the personal representative, or by the sureties. So they might show a release. The fact that the grantor "died insolvent," does not essentially vary the case. The term "insolvent" does not import either in fact or in law, that he left no assets. He may have left enough to pay judgments. A man is 'insolvent' who has not "assets" to pay all his debts in full. The hypothesis, therefore, that the complainants had no subsisting claims, is not wholly inconsistent with the facts alleged. The grantor may have been indebted to the complainants as alleged, and may have died insolvent; and yet the complainants may have ceased to be creditors when the bill was filed.

3. The complainants are not in a condition to maintain this suit. In order to impeach these deeds, they ought to have pursued some further preliminary steps at law. To entitle them to affect the deed No. 3, they ought to [**16]  have obtained judgments on their claims, so as to create a lien on the real estate of their debtor: and in order to reach the deed No. 4, they ought also to show the issuing of writs of fieri facias, and the return of nulla bona thereon, so as to show a lien on the personal property. They ought, in fine to show, that all remedies at law had been exhausted.

(1.) Is it necessary thus to show a lien? It is a question of practice of much interest. That it is necessary, is laid down in many authorities. Coop. Eq. Pl. 149. Mitf. 115. Wiggins vs. Armstrong, 2 Johns. Ch. Rep. 144. Hendricks vs. Robinson, 2 Johns. Ch. Rep. 296. Brinkerhoff vs. Brown, 4 Johns. Ch. Rep. 677. Screven vs. Bostick, 2 McCord's Ch. Rep. 416. Rhodes vs. Cousins, 6 Rand. 190. Gilpin vs. Davis, 2 Bibb, 416. The point has never been expressly ruled in this State. In all the cases, save one, the complainants had obtained judgments, and sued out execution; and in Jones vs. Slubey, 5 Harr. and Johns. 381, the Chief Justice remarks, that the complainant there had done every thing to entitle him to the aid of a court of equity. In the cases of Strike vs. McDonald, 2 Harr. and Johns. 191, the question was presented by [**17]  the counsel in argument; but its consideration in this court was necessarily occluded by the decision, that nothing which had been done in the cause, whilst it was pending in Baltimore county court, antecedent to its removal into the court of chancery, could be reviewed upon an appeal from the court of chancery. The question was not open on the record.

(2.) If, then, this be necessary, has it been sufficiently shown by the bill? The complainants do not say, in the body of their bill, that they are judgment creditors. They say, that when said deeds were made, they were creditors, by notes, single bills and bonds, as shown by exhibit No. 1, to which they refer as part of their bill. Exhibit No. 1 is a copy of notes, single bills and bonds. They also say that the said deeds were made whilst suits were then pending on their said claims, and they refer to exhibit No. 2, in support of this averment. They also say, that the said grantor was indebted as aforesaid, at the time of his death. If the complainants, therefore, are to be held strictly to their allegations, they do expressly aver that they are mere creditors at large, upon notes, single bills and bonds. Can they now affect to [**18]  be creditors of a higher grade--judgment creditors? It is true, that exhibit No. 2, contains memoranda of judgments recovered by Mrs. Birely on all her claims, and of the issue of a fieri facias on one, and a return of nulla bona thereon. This exhibit is twice referred to in the bill; and, in both instances, to uphold the allegation that suits were pending when the deeds were made. The allegation relates to the precise time of the factum of the deeds, which was the 16th October, 1821. It is not pretended that any judgments were then recovered; the memoranda shows that judgments were afterwards recovered. The question is, what is alleged in the bill; and it can hardly be conceived that the exhibit was adduced to show a subsequent fact, which occurred at a period long subsequent to the time to which the allegation relates. It would be substituting evidence in the place of pleading. Can it be seriously argued that the pleader foresaw the necessity of averring the recovery of judgments; and adduced exhibit No. 2, for that purpose? more especially as the averment would be felo de se in regard to one of the complainants; for the exhibit shows that Holtz never recovered judgment; his suit [**19]  abated. But the averments are conjoint; and it is not to be supposed that the pleader, to obviate the objection now urged, meant to aver the recovery of judgment by one complainant; and the non-recovery of the other; and to make the contrarient averments, by precisely the same words. He cited the following authorities, as to the certainty which is required in pleadings in chancery. 1 Vern. 483. Dick. 362. 2 Ves. jr. 318. 1 Ves. jr. 51, 287. 9 Ves. 77. 5 Conn. Rep. 352, 592. 6 Conn. 37. 7 Conn. 342, 496.

It was admitted by the counsel below, as it appears from an agreement in the record, that these exhibits, although short copies, should be considered as full transcripts. It may, therefore be urged, that the fact of the recovery of judgment, by one of the complainants, does appear in the cause. Such is not the agreement. The agreement, as I understand it, is, that the short copies shall be considered as full transcripts. And as the short copies were adduced to uphold the allegation of the pendency of suits, the transcripts can avail only to perform the same office. It is not a fact in the cause, proved or admitted under the commission. But if such were the case, the fact could [**20]  not be noticed. It is a well settled rule, that no evidence will be noticed as to any matters not alleged in the pleadings. Clarke vs. Turton, 11 Ves. 240. Gordon vs. Gordon, 3 Swanst. 472. Williams vs. Llewellyn, 2 Y. and J. 68. Hall vs. Maltley, 6 Price, 240. James vs. McKernon, 6 Johns. Rep. 565. Hoye vs. Brewer, 3 Gill and Johns. 153. Chambers vs. Chalmers, 4 Gill and Johns. 420. Hayward vs. Carroll, 4 Harr. and Johns. 518.

4. There is yet another preliminary question of some interest. The bill shows that the grantor had departed this life. Whether administration was ever had upon his personal estate or not, is not shown by the bill. No administrator is brought before the court, nor is any reason assigned for the omission. Ought not the personal representative, if any, to have been a party?

(1.) As to the deed for the personal property. It is very true, the personal representative, if any, would have no right to the personal property. Dorsey vs. Smithson, 6 Harr. and Johns. 61. The grantees would be liable, as executors de son tort, if the deed be fraudulent, and may be sued in a court of law. Dorsey vs. Smithson, ut sup. Farley vs. Farley, 1 McCord's Ch. 516. In the [**21]  case of Chamberlayne vs. Temple, 2 Rand. 397, it is said that a suit at law against them, as executors de son tort, is not necessary; but even that case determines, that the property is only liable in the hands of the donees, in default of assets in the hands of the rightful representative, and that the executor or administrator is a necessary party. Vide also Sereur vs. Bostick, 2 McCord's Ch. 416. Bradford vs. Felder, 2 McCord's Ch. 169. 2 Hov. on Frauds, 75.

(2.) As to the deed for the real property. Land in this State is only liable in aid of the personalty, and as auxiliary assets for the payment of debts. Wyse, et al. vs. Smith and Buchanan, 4 Gill and Johns. 295. In the case of Fordham vs. Rolf, 1 Tam. 1, (abridged in 2 Chitty's Dig. 1491.) it was held, that in a creditor's suit for the sale of land, where there was no personalty, and the executor refused to prove the will, that administration with the will annexed must be, nevertheless, obtained in order to show a deficiency of assets.

It was admitted, under the commission, that no administration had been obtained on the grantor's estate. Even if this fact had been set forth, by way of excuse in the bill, it could [**22]  not avail, if the authorities referred to be correct. But it is not put in issue by the pleadings, and cannot therefore be noticed. Even if a title to relief were made out in evidence, it is a good objection that the bill is not adapted to the case made. The court can only decree secundum allegata et probata.

[The counsel here proceeded to discuss the various questions of fact and law, upon the merits; and went at large into the examination of the proof. In the course of his argument, he asserted the following propositions.]

1. The relationship between the parties is not an indicium of fraud. It may be a ground on which to base a suspicion; it may strengthen a presumption; but it will not, independently, generate such presumption. In the Scotch law, transactions between parties conjunct are, on that isolated ground, deemed open to suspicion; but even by that law, they do not presume fraud ab ante. The presumption must be raised by something aliunde; mere affinity or consanguinity without more, is not sufficient.

2. The deed for the personal property was clearly bona fide. The consideration expressed was the full and uncontradicted value of the property. It was fully [**23]  paid. The possession of the property was changed without trust; for the evidence, as to a secret trust, whatever be its effect, does not apply to this deed. The party had a right to prefer these creditors; and that was unquestionably his intention. Such a deed is good at common law. Twyne's Case, 3 Co. 81. Our acts of Assembly, in relation to insolvents, cannot apply, as the grantor never became a petitioner. Owing and Cheston vs. Nicholson and Williams, 4 Harr. and Johns. 107. Harding vs. Stevenson, 6 Harr. and Johns. 266. Besides, it is not alleged or proved, that it was made with intent to become a petitioner. Kennedy vs. Boggs, 5 Harr. and Johns. 411. The pendency of the suit is only a badge of fraud, and not in itself constructive fraud. Its only effect is to put the consideration, in question. Rob. on Fraud. Con. 577. But a conveyance by a debtor to one creditor, pending a suit by another, in payment of the former's debt is good. Rob. on Fraud. Con. 436. Twyne's Ca. 3 Co. 81. Wilt vs. Franklin, 1 Binn. 502.

3. The deed for the real property is impeached in general terms, as made with intent to delay, hinder and defraud the grantor's creditors. The bill contains no specific [**24]  allegations of fraud. From the scope of the interrogatories, however, it would seem that it was supposed, that the consideration was merely feigned, and the deed voluntary. The bill does not charge that the expressed consideration was inadequate; nor is there any charge of the existence of a trust. The complainants, however, have offered proof as to the value of the estate; and they have endeavored to prove a trust in the grantee, for the payment of debts generally. He contended, upon the proof, that the consideration expressed in the deed was the full value of the estate, subject, as it was in part, to a heavy mortgage. The consideration was fully paid, partly by the surrender of valid claims against the grantor, partly by the grantee's own notes. The fact that some of the claims were not then due, is no indicium of fraud under the statue of Elizabeth. It would be material under the bankrupt laws of England. Thompson vs. Freeman, 1 Term. Rep. 156. Hartshorn vs. Slodden, 2 Boss. and Pull. 583. Phoenix vs. Ingraham, 5 Johns. Rep. 428. It would be strong evidence of an intent to give a preference under our insolvent laws; but they are not in question now. Apart from the bankrupt laws [**25]  and the insolvent laws, a debtor, unsolicited and unpressed may, ex mero motu, give such preference, and the note, although not due, is a valuable consideration. Vide the argument of Heath, Chambre and Rooke, justices, in the above cited case of Hartshorn vs. Slodden. Besides this, the grantees were sureties for the grantor in all these immature notes; and an engagement by a surety is, in itself, a valuable consideration. Stevens vs. Bell, 6 Mass. Rep. 342. Howe vs. Ward, 4 Green. 199. Crosby vs. Crouch, 11 East. 256. The fact, that the consideration was in part made up of the grantee's own notes, is no argument of fraud. A bond or other security, by a purchaser, is a valuable consideration. Seward vs. Jackson, 8 Cow. 432, 454.

4. But if the price was inadequate, that will not, per se invalidate the deed. It may avail as evidence of fraud; but then the inadequacy must be gross; so gross as to shock the conscience. Copis vs. Middleton, 2 Madd. Rep. 232. Watkins vs. Stockett, 6 Harr. and Johns. 435.

5. Whether the deed be fraudulent or bona fide, is a question of law upon the facts. It is the judgment of law upon facts and intents, when these are ascertained. Sturtevant & Keep [**26]  vs. Ballard, 9 Johns. Rep. 337. Jackson vs. Matter, 7 Cow. 301. He contended, that the transaction was bona fide in fact: and not constructively fraudulent from any of the attendant circumstances, as disclosed in the evidence.

6. The subsequent declaration of a grantor cannot be heard to impugn his own deed. Nemo allegans suam turpitudinem est audiendus. He could not be called as a witness; although the grantee, in that case, would have the benefit of cross examination. Hearn vs. Soper, 6 Harr. and Johns. Rep. 281. Conolly vs. Howe, 5 Ves. 700. Chess vs. Chess, 1 Penn. Rep. 38. In Merrill vs. Meachen, 5 Day 341, evidence was received of a grantors declarations as part of the res gestae; and its admissibility is expressly put on that ground. So in Kolb vs. Whitely, 3 Gill and Johns. 195, the declarations of the insolvent were admitted as part of the res gestae; and the court below restricted the admission of declarations to such as were antecedent to the transaction. So in the case of the United States vs. Gooding, 12 Wheat. 468, the acts and declarations were received as part of the res gestae; and a fraudulent combination was first established. He also cited on this point, Apthorp [**27]  vs. Comstock, 2 Paige, 488. Wilbur vs. Strickland, 1 Rawle. 458. Retenbach vs. Retenbach, 1 Rawle. 362. Beach vs. Catlin, 4 Day, 292.

7. But if the grantor's declarations be received, they would not establish fraud. The intention to keep the property out of the sheriff's hands would not be fraudulent, without more. The object of the deed was, manifestly, to secure the grantees, in preference to other creditors; its necessary operation, therefore, and its direct object, was to disappoint other creditors. Some were pressing their claims to judgment, in order to get a preference and seize the property: he chose to give a preference to these grantees. Could he have done this, if he had waited until after the seizure by the sheriff? He cited Meux qui tam vs. Howell, 4 East. 1. Wilt vs. Franklin, 1 Binney 521. So the declaration of the grantor, that his sons were to go on and sell his property and pay his debts is immaterial in this case. There is no allegation of such a trust, and the testimony is inapplicable: but if such proof can be noticed, it would not bring this deed within the statute of Elizabeth. The questions put by the judges to the counsel, in argument, in Meux qui tam [**28]  vs. Howell, 4 East. 9, are decissive of their opinions on this very point. It might superinduce upon the grantees the responsibilities of a trust for the benefit of creditors, in a proceeding adapted to such a case. But the object of this bill is not to enforce this trust; but to vacate the deed, as fraudulent within the statute. The case of Naylor vs. Fosdick, 4 Day, 146, is very different. The complainants cannot now abandon their ground, and seek to uphold the deed, and engraft upon it a secret trust, when the scope of the bill was to vacate it. A bill for one purpose cannot be made to answer another and different purpose.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*450]  DORSEY, J., delivered the opinion of the court.
Of the fraudulent character of the conveyances in question, on taking a full survey of all the facts and circumstances of this case, and drawing such inferences as a jury might reasonably make, we entertain no doubt. In deciding in favor of the appellants the various questions of law, presented by the able and ingenious argument on the part of the appellees, we cannot [**29]  but admit, that some of our conclusions have been adopted, not without difficulty and hesitation.
It was insisted in behalf of the appellees, the conceding the appellant's right to relief, upon the ground of the invalidity of the deeds, under the statute of Elizabeth, yet that the decree of the county court denying such relief, could not be reserved, on account of various defects in the proceedings of the appellants, by which it was sought; and first, that the bill of complaint was filed in the name of two creditors; whereas, all of them, or one only, should have been made a party complainant. This is a mere formal objection, not taken in the court below. If it had been, it might, (if sustainable) have been removed by amending the 

 [*451]  bill. The appellees admit that one creditor may sue alone. Then why may not two? Rules of pleading in equity are not governed by the same technicality as to matters of form, that controls proceedings at law. Courts of equity look to substance, not form. The distinction then, (if it exist at all, which we cannot admit,) is a mere matter of form; nothing in reason or substance can be urged in its support. If one of many creditors proceed, and [**30]  be successful, the fund is retained in chancery until all the creditors are notified to come in, and assert their claims. The same practice prevails on like proceeding by two.
Secondly, it is alleged, that it is not stated in the bill, according to the usual form, that the complainants proceed on behalf of themselves and other creditors.
This objection we think fully answered, and the requisition, if it exist, substantially gratified, by the prayer in the bill, that the property be sold for the benefit of the creditors of Jacob Staley.
The third defect suggested, is, that the bill does not show or allege, that the complainants were creditors at the time of filing their bill; but only at Jacob Staley's death. If it were conceded, that this fault would have been fatal on demurrer, it cannot avail the appellees, as the question now arises before the court. The strong, if not necessary implication of the existence of the complainant's claims, at the time of the filing of their bill, clearly arises from the facts therein set forth; but that implication is made irresistible by the answer of the appellees, who admit, that the notes, single bills, and bonds exhibited, show the "true [**31]  amount of the debts due from Jacob Staley deceased, to the complainants.
The fourth defect relied on, is, that the complainants stand before the court, as simple contract creditors only; whereas, to entitle themselves to the relief prayed for, they should have set forth in their bill, the judgments to bind the land, and fi fa's to bind the personal property. In sustaining the appellants in the teeth of this objection, we do not 

 [*452]  mean to shake the general principle, that where a creditor seeks the aid of a court of equity, to pursue property fraudulently conveyed away, a judgment must first be obtained against the debtor, before his lands fraudulently granted can be reached; nor that in such a pursuit of personal property, a fieri facias also must first have issued. In examining the authorities referred to by the appellees, to sustain their position, chancellor Kent, in reference to personal property says, in Hendricks vs. Robinson, 2 Johns. Ch. 283, "the preliminary step which seems to be required, is, that the judgment creditor should have made an experiment at law, and bound the property by actually suing out execution;" and in Brinkerhoff vs. Brown, 4 Johns. Ch. 671, [**32]  "if he seeks aid as to real estate, he must show a judgment creating a lien upon such estate; if he seeks aid in relation to personal estate, he must show an execution giving him a legal preference, or liens upon the chattels." And in Shirly vs. Watts, 3 Atk. 200, a judgment creditor who had not taken out execution, having brought a bill to redeem against the mortgage of leasehold interest, Lord Hardwick decreed, that "the bill must be dismissed, because till execution, the plaintiff has no lien on the leasehold estate." If then the creditors' claims to relief rest upon their liens thus to be acquired, (a position not entirely free from doubt) it follows as a necessary consequence, that out of the fund pursued, if land, they must be paid according to the seniority of their judgments: if personal property, according to their respective priorities, acquired by the delivery of their several fi fa's to the sheriff. Would it for a moment contend, that a court of equity in Maryland, in the distribution of funds brought within its jurisdiction, by a proceeding of such a character as the present, would sanction any priorities asserted in virtue of judgment,  [**33]  rendered against his personal representative, after the death of the fraudulent grantor? We think not. All creditors without judgments in the life time of the fraudulent grantor, would come in pari passu. No subsequent judgment would create 

 [*453]  any lien. The frequent decisions of the courts of this State have long since settled, so as to preclude all debate on the subject, that a judgment against an executor or administrator, not only does not bind real assets, but that it is not even prima facie evidence of a debt, where the real estate of a deceased debtor has been sold for the payment of all debts against him. Of what possible avail then, would the required judgment against the executor or administrator of Jacob Staley be, to charge the real estate in question? It has not been intimated that any judgment should be shewn against the heirs of the deceased. Indeed, having no assets by descent, such a judgment could not be obtained against them.
But suppose we are wrong in this view of the subject; and that the inefficacy of the judgment as a lien does not of itself dispense with the necessity for its existence; still we are of opinion, that the objection, as [**34]  now presented to us, ought not to be sustained. It is raised for the first time, as far as the record informs us, in the appellate court, after the parties have incurred great expense, and consumed much time, in litigating their rights upon the merits of the controversy. Had it been relied on in court below, either by demurrer, a plea in bar, or as a substantive ground of defence in the answer, it could have been easily obviated. As now presented, it works gross injustice, and is a complete surprise on the complainants. It becomes this court therefore, to listen to it with a reluctant ear, and to be even astute in the discovery and combination of the facts in the cause, that the unjust operation of this unseasonable objection may be frustrated; and we feel ourselves warranted by the pleadings and circumstance of this case, in drawing such inferences of fact as enable us to surmount this difficulty. It is not a defence set up in the answer. It forms no part of the issues in the case. The complainants were not called on to account for the omission. If the deceased left no assets, the natural presumption is, that no letters of administration would have been taken out on his 

 [*454]   [**35]  estate; that had he left such assets, letters would have been granted; and the fair inference in that event is, that the appellees in one of the three usual modes in which their object could have been effected, would have required that the administrator might be brought before the court, and be made to apply the effects in his hands to the satisfaction of the complainants' debt; thus extinguishing their right to prosecute any claim against the property conveyed. Not having done so, at this stage of the cause, the just conclusion is, that no administration was ever granted on the deceased's estate, because he left none; and this conclusion is rendered in the highest degree probable, if not irresistible, when we advert to the facts, which we assume as established by the record; that Jacob Staley, at an advanced age, to hinder and defraud his creditors, about five months before his decease, had conveyed away all his property, both real and personal, and from the time of such conveyance until the day of his death, lived as a dependent with one of the fraudulent grantees; and was admitted by all parties to have been insolvent at the time of his death. Weighing all these facts and circumstances [**36]  in connection, and adverting to the time at which this question has been agitated, we deem ourselves justified in inferring, that there exists no personal representative of the deceased, against whom a judgment could have been recovered; or to answer another objection raised by the appellees, who ought to have been before the court as a party to these proceedings.
But, say the appellees, even although it were proved that there were no assets, the complainants were bound to have taken out letters themselves, in order that proper parties might have been before the court, and the necessary preliminary judgments obtained. Would that have been accomplished by their administering? Could they sue and recover judgments at law, or file bills in a court of equity against themselves? Nay, would they not have been obliged to adopt the same course of proceeding, and established their claims in the very same way, if they had administered, 

 [*455]  which they are now prosecuting without such administration. Where then the advantage or necessity of this unimportant, superfluous issue of letters of administration.
The foregoing views of this case, render it unnecessary for us to consider the point [**37]  so much controverted in the argument, whether the complainants' exhibit No. 2, is any further to be regarded as a part of the bill, than to show the precedency of the suits, of which it was referred to as the proof.
The bill having charged that by the deeds complained of, Jacob Staley had conveyed to the appellees all his real and personal estate, and their answer having denied that fact, and averred that after the delivery of the deed to them, he "was seized and possessed of real estate, both in Frederick and Montgomery counties, abundantly sufficient" as they believed, to pay the claims of the complainants in this behalf," it was insisted that the defence is sufficiently established by the answer, and is a bar to the relief which has been sought by the bill. To this doctrine we cannot accede. The fact of Jacob Staley's owning other real estate in Frederick and Montgomery counties, is a matter put in issue by the appellants; and being an affirmative allegation, the onus probandi rests upon the appellees. Aware of this, they have attempted to prove it, but by testimony inadequate to the object. The mere production of deeds of conveyance, unaccompanied by [**38]  any proof of the existence of the property conveyed, and the title of the grantor thereto, or his possession thereof, or the possession thereof by the grantee, is wholly insufficient for that purpose. In Sands vs. Hildreth, 14 Johns. 493, SPENCER, J., says, "it has been argued, that Sands (the grantor) might have had property abundantly sufficient to satisfy his creditors, independently of the lands sold to the respondent. This however is not proved, and if it were true, the appellant was bound to make out the fact. Not having done so, the inevitable conclusion is, that Sands had no other property, out of which his creditors could obtain satisfaction."

 [*456]  But suppose the allegation as to real property be true, it forms no barrier to a decree in favor of the appellants. To be so, it should have alleged not merely a sufficiency of other estate to pay the claims of the complainants, but all the debts due by Jacob Staley.
It has been attempted to support the deed in question, on the ground, that being executed with a view to a sale for the payment of the debts of all the creditors, it stands untainted by fraud. If such were the object of the instrument,  [**39]  it should have formed a part of its contents, or been elsewhere reduced to writing. Being upon its face, an absolute deed of bargain and sale, and being proved not to have been a bona fide conveyance, as such, it is covinous and fraudulent as against the complainants, and in violation of the statute of Elizabeth; nor can it be bolstered up by the fact of there having been a secret oral contract between the grantor and grantees, that the property conveyed should be held in trust, and sold for the benefit of the creditors of the grantor. The answer set up no such defence. Nor can it be supported on that ground, even if in a proper state of the pleadings, it might be so relied on. The necessary tendency of such a transaction is covinous and fraudulent, so far as the pursuing creditors are concerned. A secret contract so made could not be enforced, either at law or in equity, at the suit of the grantor or his creditors. The deed was executed according to the intention of the contracting parties; no mistake or surprise in obtaining it; nor was any fraud, duress, or imposition practised upon the bargainor. The secret agreement is a nullity under the statute of frauds, and there is [**40]  no head of equity jurisdiction, under which relief could be successfully sought, on such a contract. A court of chancery should therefore stamp on it the mark of reprobation.
The effort which was made for the rejection of the testimony of Joseph Miller, on the ground of its being given in answer to a leading interrogatory, is wholly without foundation, as all the material facts to which he deposed, were 

 [*457]  elicited by interrogatories which stand free from all exception.
DECREE REVERSED, and a decree was passed by this court for a sale of the property in the proceedings mentioned.
BUCHANAN, Ch. J., dissented.  

43 of 43 DOCUMENTS 

THE CHESAPEAKE AND OHIO CANAL COMPANY vs. THE BALTIMORE AND OHIO RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 1; 1832 Md. LEXIS 12 

June, 1832, Decided 

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

A bill was filed by the appellees, against the appellants, and the Potomac Company, on the 23d of June, 1828, which stated--That by an act of the legislature of Maryland, passed at December session, 1826, entitled, "An act to incorporate The Baltimore and Ohio Rail Road Company, it was enacted, that as soon as ten thousand shares of the capital stock of said company should be subscribed, the subscribers thereof should be incorporated into a company by the name of The Baltimore and Ohio Rail Road Company, and should be clothed with all the powers necessary to the construction of a rail road from the city of Baltimore to the river Ohio; that the sum required in order to the incorporation and organization of said company having been previously obtained, the said company was duly organized by the election of a president and directors to manage the affairs of the same; that the subscriptions to the capital stock of said company having been augmented, so as to amount in all to four millions of dollars, the said company found itself, at once prepared to commence the construction of said road, and possessed of means at least sufficient for its completion [**2]  to the town of Cumberland, in Alleghany county; and that with a view to the construction of said road, the president and directors of said company caused all the various routes for said road to be examined by skilful engineers, in order to the determination of its general direction, who ultimately recommended the adoption of the southern route for the said road, to wit: from Baltimore to the Potomac river by the waters of the Patapsco and the Monocacy, striking the Potomac at the Point of Rocks, on the north-eastern side of the gap, at which, the Potomac passes through the Catoctin mountain, and thence to Williamsport, and thence with the Potomac, with inconsiderable deviations, to Cumberland; that the route for said road was finally adopted by the said president and directors, and the said president was ordered, by a resolution of the said board of directors, to proceed at once, to the construction of said road, upon said route. Your Orator further showeth, that after said route for said road had been definitely ascertained by said report, and a day for the commencement of the operations of the company thereon assigned, the said president and directors deputed engineers to pass along [**3]  the route thus adopted, and whenever the character of the ground was such, as to leave but little choice as to the location of said road, to make an actual location of the same at once over such ground, so that the said actual locations might serve as regulating points, for its location over the intermediate sections, and secure the passage of said road; and the said president and directors also deputed agents and attorneys to accompany said engineers, who were directed and required by the said president and directors to take all necessary or proper steps, to procure a title to the lands over which said actual locations were made, or to a right way over them. Your Orator further showeth, that under and in conformity to the requisitions of the said president and directors, the said engineers proceeded at once to the actual location of said road, over such portions of the route from the Point of Rocks aforesaid, to the town of Cumberland aforesaid, of which specifications of said locations which have been adopted and confirmed by the said president and directors, and which extend from the Point of Rocks inclusive, through Frederick, Washington, and Alleghany counties, to and over the [**4]  lands of John Mitchell, in Alleghany county, lying immediately above Mitchell's rocks, and above the lands of John Folch, are herewith exhibited marked A B C D, &c. &c. That all the said locations were made with a bona fide intention on the part of your Orator, of perfecting its incipient title to the lands included in said locations, or on the route of said road, by purchase, condemnation, or otherwise, and of proceeding as speedily as possible, to the construction of said road over the same. That acting with this intention, and designing to accomplish this object, the said president and directors therefor deputed agents and attorneys to procure a title to the same, or a grant of a right over the same, as aforesaid; and that the aforesaid agents and attorneys of the said company, in pursuance of the authority aforesaid, and to accomplish the objects aforesaid, have obtained from various persons (whose names were specified) relinquishments or agreements, under hand and seal, binding themselves, their heirs and assigns, to grant to your Orator, a right of way for the Baltimore and Ohio Rail Road, either specifically according to the said actual locations, or generally, so as in either [**5]  case, to bind all the lands lying within the said actual locations. Your Orator further shows, that all its above mentioned acts in locating said road, and obtaining and securing a right of way for said road over the lands included in said locations, were done by your Orator in strict pursuance of the powers conferred upon it, by the above mentioned act of assembly, and with a view to the accomplishment of the objects for which said company was incorporated, in the best possible manner, and not merely with the intent and design on the part of your Orator, to impede or obstruct the Chesapeake and Ohio Canal or Potomac Companies, hereafter mentioned, in the exercise of their respective powers; and that to carry into effect the agreements and relinquishments above mentioned, which are herewith exhibited marked 1 2 3 4 M M, and which your Orator prays may be taken as a part of this bill of complaint, the said agents and attorneys of the said president and directors were about to procure grants of said lands, or of rights of way over them, from said grantors, in conformity to their above exhibited agreements, by deed duly acknowledged for record, or to institute the necessary proceedings [**6]  to enforce the specific performance of such agreements, where such grant was refused, and would have procured such grants, or have instituted such proceedings. But now so it is, may it please your honor, that after the above mentioned acts had been done, by and under the direction of the said president and directors of the said Baltimore and Ohio Rail Road Company; after the above mentioned actual locations of said road had been made, and the above mentioned contracts or agreements with your Orator made or entered into, upon an application to Washington County Court, as a court of equity, made in the name and on the behalf of the Chesapeake and Ohio Canal Company, and Potomac Company, by bill of complaint, praying a writ of injunction against your Orator, its attorneys, agents, and all persons whatsoever acting under its authority, or on its behalf, to prevent them from obtaining a title by purchase, deed, or condemnation, or otherwise, to any of the lands lying within the actual locations aforesaid, or to a right of way over them, and otherwise, to restrain the lawful acts and proceedings of your Orator, an injunction as prayed for, was accordingly issued; all of which will more fully [**7]  appear from a copy of the said bill of complaint, and the said writ of injunction, which are herewith exhibited, and which your Orator prays may be taken as part of this bill of complaint. Your Orator is advised, that neither the said Potomac, nor the said Chesapeake and Ohio Canal Company, has any such unquestionable and absolute right of election and preemption for the route or site of said canal, as to all or any of the lands lying within the aforementioned actual locations of said Baltimore and Ohio Rail Road, as is set forth in said bill of complaint; that as your Orator is credibly informed and believes, neither of the said companies had obtained, at the time of issuing the said injunction, any title or right, by location, purchase, deed, condemnation, or otherwise, to the exclusive use and possession of any of said lands: that the Potomac Company has been organized for more than forty years, and during all that period has not exercised any franchise or right of election as to said lands, which it may have derived under its charter, so as to vest in it an exclusive title to the same, or to any part of them, and that at the time when all the above mentioned locations and agreements [**8]  were made, the said Chesapeake and Ohio Canal Company was not, and never had been, sufficiently organized so as to be competent, under its charter, to do such acts, make such contracts, or accept such gifts, grants and relinquishments, as were, and are necessary to vest in the said company any pre-emption, election, or exclusive right, to any of the lands lying within the aforesaid actual locations; although as your Orator has reason to believe, from the allegations of said bill of complaint of said company, and from other information from credible persons, and verily does believe, the said Chesapeake and Ohio Canal Company is now sufficiently organized for said purposes by the election of a president and directors. And your Orator further alleges, that it has good reason to believe, and verily does believe, that whilst the said Chesapeake and Ohio Canal and Potomac Companies were professing, in their said bill of complaint, an entire reliance upon the pretended priority and right of election, as set forth in said bill, unaccompanied and unfortified by any location, purchase, condemnation, or other act, on their part, as necessary to secure and vest in them, such alleged priority and [**9]  right of election, it was the principal, if not the sole object of the said companies, and their confederates, in obtaining said injunction, to obstruct and prevent your Orator, from enjoying the benefit of the above mentioned agreements and relinquishments, and from perfecting the same by deed or conveyance, so as to vest in your Orator, a complete legal title to the lands to which said agreements or relinquishments relate, or to a right of way over them, until the said Chesapeake and Ohio Canal Company was properly organized and prepared to appoint, and might appoint agents, adopt routes, make or cause to be made locations and contracts, and do and assent to all other acts which might be necessary or proper to vest in the said Chesapeake and Ohio Canal Company a title to the very lands, for which, or a right of way over which, the above agreements have been entered into with your Orator. And your Orator has also good reason to believe, and verily does believe, that it was the intent and design of the said companies, and their confederates, in applying for and obtaining said injunction, to set up their pretended priority for the purpose of restraining your Orator from enjoying the [**10]  benefit of the above agreements, and from acquiring a title to the lands affected by the same, until the said Chesapeake and Ohio Canal Company was competent and prepared to acquire, and could acquire, a title to the said lands, in the very mode in which your Orator was about to obtain, and would have obtained a title to the same, but for the interposition of the above mentioned injunction, and might thus be enabled, if their propriety and right of election, set forth and relied upon in their said bill of complaint, should fail them, to resort to a title acquired by purchase, deed or condemnation, and acquired only, by fraudulently restraining your Orator from availing itself of the equitable title which it derives under said agreements; and as further evidence of such intention and design, your Orator alleges, that it has been credibly informed, and verily believes, that since the said locations and agreements have been made, and the said injunction obtained, and before, attempts have been made by one or more agents or persons, professing to act under the authority of the said companies, and on their behalf or for their benefit, to dissuade and prevent parties to the said agreements [**11]  from performing their said contracts, and to procure from them, deeds for, or written agreements to convey the very lands affected by such agreements, or lying within the actual locations as aforesaid, and that one or more such deed or agreement has actually been obtained by a certain Clement Cox, or under his directions as the agent, or professing to act for the said companies; from all of which, and many other actings and doings of the said companies, and their attorneys, solicitors and agents, to obstruct and hinder your Orator in the enjoyment of its rights, your Orator has reason to believe, and verily believes, that the said companies, or their agents, combining and confederating for the wrongful purposes aforesaid, will endeavor to procure, and are endeavoring to procure, deeds for the said lands, from the very parties to the said agreements, and in violation of said agreements, or to value and condemn them, or have them valued or condemned for the use of the said Chesapeake and Ohio Canal Company, so as to hold them free, if possible, from any equitable interest in the same, which your Orator may have acquired under said agreements, and if not prevented, will procure, or value [**12]  and condemn them, for their own use, and will endeavor to obtain, and will obtain, possession of the very lands affected by such agreements, and will prevent your Orator from taking possession of the same, and will otherwise obstruct and hinder your Orator in exercising its rights under said agreements over the same. And your Orator further showeth, that having a due respect for, and in all respects obeying the said injunction issued out of Washington County Court, it will, during the continuance of said injunction, be restrained from doing any act whatsoever, to protect the title which it derives under said agreements against said companies, and will, during that period, be left unprotected against the unjust and inequitable attempts of the said Chesapeake and Ohio Canal and Potomac Companies, to take advantage of their own wrong, by procuring titles by purchase, location or condemnation, so as to give a priority which they could not have obtained but for the said injunction; that the said injunction has been issued solely to protect an alleged priority or right of election in the said Chesapeake and Ohio Canal and Potomac Companies, as set forth in their bill, and not requiring any [**13]  acts on the part of said companies, such as location, purchase or condemnation, to vest or originate the same, and as the said companies in their said bill of complaint allege, only in order to a speedy determination as to the existence of such priority of right, and that the purposes and objects of said injunction can be accomplished, and full justice done to your Orator, and to the said companies, in the premises, only by restraining the said Chesapeake and Ohio Canal and Potomac Companies from doing any act or acts whatsoever to deprive your Orator of the benefit of said agreements, until the question of priority or right as claimed by said companies, shall have been determined upon their said bill of complaint; so that, if said question should be determined against the said companies upon their said bill, your Orator may be remitted to all the rights which it possessed or enjoyed at the time of such injunction obtained, unaffected by any wrongful acts, in prejudice of the same, which the said companies may have done under color of said injunction, and in perversion or abuse of its objects, that thus all the alleged rights and priority of the said companies will be saved and reserved [**14]  to them from their alleged nature, and by the aid of the above mentioned injunction, to which your Orator is ready to pay all due respect, and all the equities of your Orator will also be preserved and reserved to it, so that in the event of a decision in its favor upon the bill of complaint of the said companies, it will be remitted to the full enjoyment of them. Wherefore, and forasmuch as without such restriction imposed upon the said Chesapeake and Ohio Canal and Potomac Companies, and their agents, your Orator may be thus unjustly deprived of or injured in the possession of said equitable rights, and may thus suffer an injury which cannot be repaired by any decision in its favor upon the bill of complaint of the said companies, and forasmuch as a Court of Equity can alone give relief in the premises, and this honorable court having full jurisdiction co-extensive with the limits of the State, can alone give that speedy, extensive, and efficient relief which the nature and urgency of the case require. To the end therefore, that the said Chesapeake and Ohio Canal Company and the said Potomac Company, being companies incorporated and organized under acts of the legislature of Maryland,  [**15]  may under their respective corporate seals, full, true, and perfect answer make, to all the matters herein before set forth, and that in the mean time the said Chesapeake and Ohio Canal Company and Potomac Company, their agents or attorneys, and the agents or attorneys of either of them, and all persons acting or professing to act under their authority or on their behalf, or on behalf of either of them, may be strictly prohibited and enjoined, &c.

On the 24th of the same month, a second bill was filed by the same parties, alleging that, where, from the absence of the owners of the land, over which the road was located, or from other causes, they were unable to make such agreements or contracts as are spoken of in the preceding bill, they were causing warrants to be issued for the purpose of condemning the same, in the manner authorized by their charter, and they asked for and obtained an injunction, to protect them in the rights so acquired.

On the 25th of the same month, they exhibited a third bill, asking to be protected in the rights which they alleged themselves to have acquired, in virtue simply of actual locations for the route and site of the road, independent, either [**16]  of contracts with the owners of the soil, or proceedings for its condemnation; and an injunction was accordingly granted and issued for that purpose.

On the 16th of May, 1829, the Chesapeake and Ohio Canal Company answered these bills, as consolidated in one suit. The answer stated, that in order more clearly to illustrate the antiquity of their right and title, and of the public recognitions of their right and title, in preference to all other projects of internal improvement, and to the claims and interests of all other corporations and individuals, particularly of the complainants, to appropriate to the construction of the Chesapeake and Ohio Canal, and of its incidental works and appendages, the most eligible, proper, and convenient site or route for the canal through the vale of the Potomac, from tide water to its highest sources, and especially that identical site and route along the vale and narrow passes of that river, from the Point of Rocks where the river passes through the Kitocton mountain in Frederick county, Maryland, to Cumberland, in Alleghany county, which the complainants have attempted, or now pretend in their said bills, a right to appropriate and occupy for [**17]  the site and route of their intended rail road, they deem it expedient and proper to submit to the court, a historical deduction of their title, from the inception of the first scheme for improving the navigation of that river by means of a canal or otherwise, to its consummation in the charter, by which these respondents are incorporated, shewing the notoriety of the public and early dedication of the ground in question, to the ends and purposes of a canal supplied by the waters of the Potomac and its tributaries; the authentic and binding acts of public authority, and the implied as well as direct pledges of public faith, by which such dedication of the ground in question has been sanctioned and guarantied; and the conclusive, and plenary notice of the same, with which the complainants have advanced their adverse pretensions, and in so doing, have not only unconscionably infringed the chartered rights of these respondents, but have attempted to overreach, contravene and defeat the high objects and intents of public policy, as authentically declared and promulgated by the most solemn conventions of states, communities, and individuals, and irrevocably established by numerous legislative [**18]  enactments.

That the improved navigation of the Potomac, by means of a canal or otherwise, from tide water to the sources of that river, or at least as high as Cumberland, was early considered, before the incorporation of the late Potomac Company, and both before and after the revolution, an object of public and national importance; and as such, engaged the active attention of the most eminent statesmen and patriots in Virginia and Maryland; that immediately after the peace of 1783, it was the first and leading object of public improvement, to which, those states and their principal citizens directed their attention; that the far-reaching views of the eminent citizens, conjointly employed by those states in devising and perfecting the plan of that great improvement, and among the most active and zealous of whom were found many of the most celebrated patriots and warriors of the revolution, contemplated it, even at that early period, as the great channel of commerce and intercourse, which was to connect the original states, with the vast and fertile regions beyond the Alleghanies; and that the charter of the late Potomac Company was the practical and direct result of those enlarged [**19]  views and objects, is matter of history; and is more particularly illustrated by the papers and plans of General George Washington, by the delegation from the states of Virginia and Maryland, of that eminent citizen and other most distinguished public men of both states, as commissioners, to consider and report a plan of the work; by the public proceedings and report of those commissioners at Annapolis, in the year 1784; and by the concurrent laws of Virginia and Maryland establishing the late Potomac Company, followed up by various acts of the like concurrent legislation, from time to time, enlarging, modifying, or confirming the original charter of that company. For authentic copies of some of the preliminary documents and proceedings above referred to, and of all the laws relating to the said Potomac Company, these respondents pray leave to refer to the printed collections of the same, annexed to this answer, among the other public and authentic documents hereto annexed, and enumerated in a schedule hereto annexed; all of which they aver to be public and authentic documents, and pray that the same be received and referred to, as part and parcel of this their answer.

It was [**20]  found, after an experience of between thirty and forty years, that the plan adopted by the late Potomac Company for rendering the river navigable, was essentially defective, and wholly inadequate to the great objects for which that company had been instituted; that all their large capital, and the long and arduous labors of so many years, had been expended without attaining the great end of an uninterrupted and safe navigation from the tide water to the source of that river; a failure not originating in any defect of zeal or perseverance, or general intelligence in the conduct of that company, but in the inadequacy of their pecuniary means at the time; in the imperfect state of the science of canalling, and in the general misconceptions of the facilities afforded by the river itself, for navigation, and of the comparative advantages of a continuous canal through the vale of the river, supplied by its own and its tributary waters, and of what is called sluice navigation; misconceptions, common to them, and to the whole American community, till the progressive lights of experience and science had subsequently demonstrated the superior advantages of the continuous canal. When this unfortunate [**21]  result had become evident, the Potomac Company, as well as the community at large, began to consider, with an earnestness and solicitude due to the great and extensive interests dependent on the scheme, the means of repairing the original errors in its theory and details, and of reverting to the proper, and now demonstrated plan of a continuous canal all along through the vale of the river, using the waters of the river and its tributaries as feeders to the canal; a plan entirely within the scope of their chartered powers, and of the original, notorious, and declared ends and objects of their institution; and with this the company connected the ulterior plan to which their chartered limits did not then specifically extend, and the practicability of which, had but recently been thought deserving of further inquiry, (after the report of the Secretary of the Treasury, in the year 1808, assuming it to be impracticable for a canal to pass the summit of the Alleghany, for want of an adequate supply of water on the summit level,) of effecting a connected canal navigation between the head waters of the Potomac and Ohio river. With these views, the late Potomac Company, in the year 1819, applied [**22]  to the Board of Public Works of Virginia, to institute, through their principal engineer, the proper examinations and surveys for determining the best mode of improving the navigation of the Potomac, and facilitating a communication by way of that river, with the western waters. In consequence of which application, the legislature of Virginia passed their resolution of the 8th of January, 1820, requesting the said Board of Public Works, to inquire into the expediency of directing their principal engineer, to examine the waters of the Potomac, and to explore the country between the Potomac and Ohio, &c. with a view to ascertain and report the practicability of effecting a communication by canals between those rivers; an authentic copy of which resolution is hereto annexed among the said scheduled documents. And the said Board of Public Works did accordingly cause the proper examinations and surveys to be made by their principal engineer, the late Thomas Moore, who, in the year 1820 made his official report of the same, which, with the said application from the Potomac Company, was officially printed and published in the annual reports of the said Board, and is hereto annexed among the [**23]  said scheduled documents.

The examinations and surveys of the ground itself, by this practical and gifted engineer, gave results very different from those of the report of the Secretary of the Treasury above referred to, and which had proceeded upon the apprehension of conjectural difficulties, not brought to the test of professional examination and experiment, as will be evident from a comparison of the two reports.

This report of Mr. Moore gave a fresh impetus to public curiosity, and the long talked of plan of a connected navigation between the eastern and western waters, was agitated with renewed interest. Then followed the law of Virginia, and the concurring resolutions of the general assembly of Maryland, (also annexed among the said scheduled documents,) passed at the December sessions, 1821, of the legislatures of those states respectively, for the appointment of two commissioners on the part of each state, among other things to examine into and report the state of the navigation of the Potomac, and to advise and consult as to the measures most advisable to be recommended to, and conjointly adopted by, the said states, either for giving aid to the Potomac Company [**24]  in the further prosecution of the work, or for the more effectual improvement of the navigation of the said river by other means, &c.

The commissioners appointed in pursuance of the said law and resolutions, proceeded in the summer and autumn of the year 1822, to execute their commission in its utmost latitude, with the assistance of the said Thomas Moore, the principal civil engineer attached to the Board of Public Works of Virginia, and other competent engineers and surveyors. Their joint report of their proceedings, with an appendix of explanatory documents, was duly returned to the respective governors of the two states, in December, 1822, and by the said governors officially communicated to the respective legislatures of those states at the December sessions, 1822, of the same, and were immediately printed and published at public expense, in both states, by the authority of each legislature; and a copy of the same report, &c. was in January, 1823, sent with an official and public communication from the governor of Maryland to the president of the senate of the United States, to be laid before the senate pursuant to a resolution of the general assembly of Maryland, and was,  [**25]  together with the governor's communication, then immediately re-printed and re-published by order of the senate, among its public documents; each of the printed copies, so printed and published by authority of the legislature of Maryland, and of the senate of the United States, is hereto annexed among the scheduled documents.

These respondents also refer to the original communication from the governor to the general assembly of Maryland at the December session, 1821, and the report of the committee of the house of delegates at that session thereon, as printed and published by authority of said house, and hereto also annexed among the said scheduled documents.

At the same sessions of the two legislatures of Virginia and Maryland, to which the report of the commissioners was communicated by their respective governors, applications were made to each legislature, by a number of individuals and corporations, acting in concert, for a charter to a new company, in place of the old Potomac Company, upon certain terms, for the surrender of the charter of the latter, approved by them. This new charter, connected with a provision for a considerable part of the stock to be taken by each [**26]  state, was at that time earnestly solicited by the persons principally interested in the scheme; and especially by the three corporate cities in the District of Columbia, who deputed proper agents to solicit and advance the plan with the two legislatures. Such progress was made in this matter with the legislature of Maryland, that in January, 1823, a bill to establish the Potomac Canal Company was reported by a committee to the house of delegates; one of the copies of which, as printed by the authority of the said house, is hereto annexed among the said scheduled documents. But as this was accompanied by a proposition for a large pecuniary contribution from the state, which met with considerable objection and difficulty in the assembly, and without which the friends of the bill did not deem it material to press the enactment of the charter, that session passed over without any definitive enactment on the subject.

At the contemporary session of the Virginia legislature on the 22d February, 1823, an act incorporating the Potomac Canal Company did pass; an authentic copy of which is also here annexed among the said scheduled documents. The original bill had been presented to the [**27]  Virginia legislature, and the enactment of it solicited in the same terms as that above mentioned in the Maryland legislature, and underwent in its progress, sundry changes and modifications, originating with, and suggested by particular members of the Virginia assembly.

About the time that these proceedings were going on in the two state legislatures, the subject was brought before Congress, in consequence of sundry memorials from the inhabitants of Pennsylvania, Maryland, and Virginia, and of resolutions moved in Congress on the suggestion of certain members of that body. For the progress of that body, in considering the subject and preparing measures for the advancement of the projected canal, in the winter of 1821-2, and the ensuing spring, these respondents refer to the printed and official reports and proceedings of the house of representatives of the United States, at the first session of the seventeenth Congress, mentioned in the annexed schedule.

Before the sessions of the two legislatures of Virginia and Maryland, for December, 1823, when the solicitations for the final enactment of the charter were intended to be renewed with unabated activity and zeal, the views [**28]  of the numerous individuals and communities interested in the business, were considerably extended and improved in the scope and objects of the immediate plan of the canal. The great scheme of a canal, not confined to the Potomac region, but forming a connected navigation between the head waters of that river and the western waters, even to Lake Erie, had excited such general attention, and so intense an interest throughout the country, that the people of the states of Virginia, Maryland, Pennsylvania, and Ohio, and of the District of Columbia, solemnly appointed numerous delegates from among their most respectable and influential citizens, to meet in convention at the seat of the general government, and there consult and co-operate for the advancement of the common object; this convention held its first session at Washington, in November, 1823, and its second session at the same place in December, 1826; the debates and proceedings in both of which were public, and were respectively printed and published immediately after each session of the convention; and an authentic copy of all of which, collected in one pamphlet, containing a second printed edition of the proceedings of the first [**29]  session, together with the proceedings of the second, printed and published immediately after its adjournment, is hereto annexed among the said scheduled documents.

From the time of the organization of this body, the whole management of the undertaking, the business of maturing its plan, of promoting and soliciting its general interests, and the grant of a charter and public patronage from the several legislatures and governments upon which it more particularly depended, and in fulfilment of the enlarged and beneficial views disclosed in the proceedings of the convention, devolved upon that body, and the several standing committees appointed by, and acting under its authority, as recorded in its proceedings; reinforced by the occasional representations and memorials of the corporate cities in the District of Columbia, and the commissioners appointed by the Executives of Virginia and Maryland, and the President of the United States, to open subscriptions for the capital stock of the company, pursuant to the charter finally obtained. The report of the central committee of the said convention, as printed in the aforesaid proceedings of its second session in December, 1826, correctly [**30]  details the actings and doings of that and its associate committees, and the general objects and results of their labors during the recess of the convention; and these respondents refer to the same, among other of the recorded and published proceedings of the said convention, as part of this their answer. For the further proceedings of the said convention, and its committees, and of other parties interested in the public project of the Chesapeake and Ohio Canal, and for the action of the public authorities upon the subject, from the adjournment of the first session of the said convention in November, 1823, down to the passage of the act of Congress of the 24th of May, 1828, authorizing a subscription to the stock of the Chesapeake and Ohio Canal Company, the respondents refer to all and singular the public proceedings and acts of the legislatures of Virginia, Maryland, and Pennsylvania, and of the Congress of the United States, and the several committees of those bodies, as recorded and published in their respective journals, reports, documents, and bodies of laws; the whole of which, in any manner relating to the subject of the Chesapeake and Ohio Canal, its plan, course, and construction,  [**31]  to its adoption by the public authorities as a work of national import, to the interest taken in it by the several States and the United States, to the incorporation of this company, and to all the preparatory legislative deliberations, measures, and proceedings, leading to that act, or consequent to it, these respondents pray may be referred to and taken by this court as part and parcel of this answer, and as public, authentic and notorious, in themselves.

From these documents the respondents deem it material, by way of illustration, here to recapitulate only the following facts, which are verified in detail by the said documents, and are true, and of public notoriety.

At the opening of the first session of the eighteenth Congress, in December, 1823, the President of the United States, in his message to Congress, having direct reference to the said convention, and its proceedings in the month of November preceding, mentioned, with decided approbation, the plan of the Chesapeake and Ohio Canal, as having been suggested by many patriotic and enlightened citizens, and recommended an adequate appropriation for the employment of a suitable number of the officers of the corps [**32]  of engineers, to examine the ground, and report their opinion thereon: and also to extend their examination, to the several routes through which the waters of the Ohio may be connected by canals, with those of Lake Erie. This, among other important objects of internal improvement, having been thus officially brought before Congress, the whole subject was referred to a committee of that body, called the committee on roads and canals, who, at the same session, reported a bill, which was passed on the 30th day of April, 1824, appropriating the sum of thirty thousand dollars, for the purpose of procuring the necessary surveys, plans, and estimates upon the subject of roads and canals.

In the month of May following, the President of the United States appointed, from among the corps of engineers and the topographical and civil engineers in the service of the United States, a board of internal improvement, with assistants to superintend the execution of the provisions of the said act; and attached to the said board several officers of the corps of engineers and of the topographical engineers, with sundry civil engineers and surveyors in the service of the United States, to perform the [**33]  practical operations in the field, under the direction of the board. The board was instructed "to make an immediate reconnaissance of the country, between the tide waters of the Potomac and the head of steam boat navigation of the Ohio, and between the Ohio and Lake Erie, for the purpose of ascertaining the practicability of a communication between those points, of designating the most suitable routes for the same, and of forming plans and estimates in detail of the expense of execution." The board was also instructed to use every possible exertion, to have their report, on this important line of communication, prepared in time to be submitted to Congress at their next session.

These examinations and surveys were prosecuted with the utmost vigor and diligence; and on the 14th of February, 1825, the President of the United States communicated, in a special message, to both houses of Congress, the result of the labors of the board and their assistant corps, as far as they had then proceeded, which was immediately printed and published, by order of each house respectively. These operations were resumed and completed under the direction of the board, in the ensuing season, and a detailed [**34]  report of the same made by the board to the chief engineer, on the 23d of October 1826, which was in like manner, communicated to both houses of Congress in a special message from the President, on the 7th of December, 1826, and in like manner immediately published and printed by order of each house. These several reports were accompanied by detailed descriptions and surveys, and large maps and profiles, and exhibited with the utmost clearness and minuteness the whole route of the canal from Georgetown and the head of the tide water of the Potomac to Cumberland, and thence to its western termination, the plans and various sections of the canal, the geography and topography of the ground through which it passed, with detailed estimates of its cost, including the section of the canal from the head of tide water to Cumberland, and minutely exhibiting its course, and its various subdivisions, and sections, on the western and northern, or as expressed by the engineers, the left bank of the river between those points. The printing of this last report having been expedited by the printers to Congress in anticipation of the President's message, and of the orders of the two houses, several [**35]  copies of the same were laid before the said convention at its second session, by direction of the Secretary of War; and formed the ground work of the proceedings of that body and its committee, towards a corrected estimate of the cost of the canal; the high estimates of the cost, given by the board of internal improvement, being considered as founded on erroneous data.

During the same session of Congress, several members of the House of Representatives, considering the disagreement between the estimates of the convention, and those of the board of internal improvement, and the necessity of the most exact preparatory estimates, as well for the success of the various applications to Congress, and to the States, for subscriptions to the stock of the canal and other aids, as for the general recommendation of the plan to the public, requested the President to submit these estimates to the revision of practical civil engineers, of long tried experience and skill. The President accordingly appointed James Geddes and Nathan S. Roberts, two eminent civil engineers, who, to great professional skill, added a long experience in the practical execution of other works of a similar description,  [**36]  to view and resurvey the route of the said canal, and revise the estimates of its cost. This duty was performed by these engineers with all diligence and despatch; and their detailed report of their surveys and estimates of the same, from Cumberland, or about one mile below Cumberland, to Georgetown, was duly returned to the engineer department, accompanied by detailed descriptions, surveys and maps of the route and site of the canal, between those points.

This last report and its results were largely quoted and commented on, in a report of the committee on roads and canals, in the House of Representatives of the United States, on the 11th of February, 1828, which report of the said committee was then immediately printed and published by order of the house, in the due course of its proceedings; and on the 26th of the same month, a resolution passed the house, calling upon the Secretary at War for the report at large of the said civil engineers; and the same was accordingly transmitted to the house on the 10th of March following; and then immediately printed and published by order of the house.

And these respondents, further answering, say, that upon the completion of their [**37]  charter by the act of Congress passed on the 3d of March, 1825, assenting to and confirming the acts of Virginia and Maryland, commissioners were duly appointed by the Executives of Virginia and Maryland, and the government of the United States, pursuant to the directions of the charter, to open books for receiving subscriptions to the capital stock of the Chesapeake and Ohio Canal Company; and the said commissioners, in pursuance and execution of their appointment and authority, on the 20th of August, 1827, published due notice that such books would be opened at various places in the United States, on the 1st of October then next ensuing; which notice was published weekly in various places, at, or as near as practicable, the respective places where the books were to be severally opened; and among others in the city of Baltimore, a copy of that published in the National Intelligencer, at the city of Washington, is annexed; and the others were in the like form, only designating other banks or agents, and other places for receiving the subscriptions in the different sets of books, all to be opened on the same day. The opening of the books had been so long postponed at the request of [**38]  the central committee of the said convention, in order to obtain, in the first instance, the most satisfactory estimates of the cost of the canal; in the meantime the conflicting estimates of the board of internal improvement and of the said canal convention, were before the public; and the engineers, Geddes and Roberts, were then engaged in their surveys of the route, and revision of the estimates, whose report, though not then completed, would, as was then well understood, confirm upon the most unquestionable data and calculations, the lowest estimates.

Pursuant to the said notice, the subscription books were duly opened on the said 1st of October, 1827, and subscriptions to a large amount were received; a correct summary of the different amounts whereof, at different periods of the 14th day of November, 1827, till the 3d day of October, 1828, is hereto annexed. The subscriptions on the part of the United States and of the State of Maryland, as authorized by their respective laws, have been duly fulfilled upon the conditions respectively prescribed by them, and were made at the respective dates mentioned in the said summary. Notwithstanding the subscriptions amounted, so much [**39]  sooner, to the one-fourth of the capital stock required by the charter, to give immediate effect to the incorporation of the company, it was deemed advisable to postpone a call of the stockholders for the election of the president and directors, in the certain expectation, of an act at the then ensuing session of Congress, authorizing a subscription on the part of the United States; and in order to give an opportunity to Maryland and the United States, on the completion of their respective subscriptions, to vote at the said election, and on other matters to be brought before the meeting. The said commissioners, accordingly, on the 5th day of March, 1828, called a meeting of the stockholders for the purpose of electing their president and directors on the 7th day of April then next ensuing; by which day it was expected the two subscriptions, just mentioned, would be completed, by means of a bill then pending in Congress. But some unexpected delays in the passage of this bill occurring, the call was postponed; and on the 26th day of May thereafter, (the said bill authorizing the subscription of one million of dollars, on the part of the United States, having passed on the 24th of the [**40]  same month,) the call was renewed, and the general meeting of the stockholders appointed for the 20th of June, 1828. These calls of the general meeting of the stockholders, and the intermediate postponement of the first, were duly published by the said commissioners in several public prints or newspapers, at various places in the United States, and among others at the city of Baltimore, pursuant to the directions of the charter; copies of which as published in the National Intelligencer, at the city of Washington, are hereto annexed. Pursuant to the last of the said calls, the stockholders assembled at the City Hall, in the city of Washington, on the 20th day of June, 1828, and duly elected their president and directors, who were immediately organized according to law; and have ever since been diligently engaged in prosecuting the execution of the canal, pursuant to their charter, with all practicable vigor and despatch.

The Potomac Company, by their several authentic and valid acts, in their corporate capacity, on the 16th of May, 1825, the 10th of July, 4th and 15th of August, 1828, duly declared their assent to the provisions of the said charter of the Chesapeake and Ohio Canal [**41]  Company, in the manner prescribed by that charter; and duly surrendered their charter, and conveyed, in due form of law, to the Chesapeake and Ohio Canal Company, all the property, rights and privileges by them owned and possessed under their charter, which surrender and transfer were duly accepted by the Chesapeake and Ohio Canal Company; true copies of all which several acts of the two companies are hereto annexed as part of this answer.

The last named company, also at their said general meeting in June, 1828, and at several adjourned meetings of the same, in June and July of that year, adopted, and passed, among others, the several resolutions, by-laws, and regulations, printed copies of which are annexed among the said scheduled documents; and, among these, the annexed resolution adopting the route and site of the canal surveyed and laid down by the United States' Engineers, and by Messrs. Geddes and Roberts, &c.

Among the works done under the orders of the president and directors, since the organization of this company, they have caused detailed plans of their canal to be surveyed and laid down by their engineers in a practical form for contractors, upon the route before [**42]  surveyed and laid down under the direction of the said Board of Internal Improvement, and by Messrs. Geddes and Roberts as aforesaid, from Georgetown, in the District of Columbia, to Williamsport, in Washington county, Maryland; and for the distance of about forty-eight miles from Georgetown, up to within about a half mile of the Point of Rocks, or foot of the Kitoctin mountain, the canal has been actually put under contract for execution upon these plans; and the work was actually commenced by the contractors in September last, has ever since been diligently and efficiently prosecuted by them, and such progress made in it, as leaves no rational doubt of its completion, upon the most enlarged scale and improved plan contemplated by its projectors, far within the time prescribed by the charter; and the said president and directors would, before now, have had at least so much more of the said canal, as the section from the Point of Rocks in Frederick, to Williamsport in Washington, under contract and in actual progress, but for the interruptions thrown in their way by the complainants, on the route from the former point to Cumberland. The respondents, by way of further illustrating the [**43]  plan and route of their canal, refer to the annexed copies of the plans and surveys of the same from the said Point of Rocks to Williamsport, executed by their engineers; which they pray may be taken as part of this their answer.

As to the pretensions of the complainants to interpose and oust these respondents of their priority of selection, and their vested right in the route of their canal, and to intrude the rail road of the complainants upon the same, these respondents say, the legislature of Maryland never contemplated, by the charter granted to the complainants, any interference with the route selected for the canal, as if these be involved in the terms of that charter any covert or latent construction or operation in practice, authorizing such interference, (which these respondents are well advised there is not,) and if the parties, who projected the said rail road, and actively promoted and solicited, and finally obtained, and now enjoy the charter for the same, originally intended that any such latent construction or operation in practice should be involved in its terms, with a premeditated design to press the advantage of such in their future operations under their charter,  [**44]  (which these respondents by no means charge, but, on the contrary, presume the said parties were at the time direct and sincere in their professed object and in the ostensible purpose and intent for which they solicited their charter,) then it would be manifest, that the legislature and people of Maryland were misled and deceived into the grant of a charter for the said rail road, contravening the well known views, and established policy, and interests of the state, long avowed and practically acted on by the legislature, and the solemn faith and compacts of the state, as well with her co-sovereigns Virginia, Pennsylvania, and the United States, as with the Potomac Company, with the Chesapeake and Ohio Canal Company, and with the public at large. For not only was any intent, (if it existed) to supersede or interfere with the proper route and site of the canal, and occupy the same with the said rail road, kept out of view, and reserved and concealed in the minds of the parties who solicited and obtained the rail road charter, but it was studiously and elaborately masked, by their openly professing and setting up a different and shorter route for the rail road than any practicable route [**45]  for the canal, and upon this very difference in the routes, they valued themselves, as having projected an improved mode of intercourse with the west, very superior to the canal.

The project of the said rail road was originated, and set in motion at a meeting of a number of the citizens of Baltimore, held at that city, on the 12th and 19th of February, 1827: the proceedings of that meeting, with a report of a committee unanimously approved by the meeting, were printed and published by its authority; the whole train of the elaborate reasonings of which, tends to establish two points; 1st. The intrinsic advantages, in point of expedition and convenience, of a rail road over a canal; 2dly. The particular advantages of the projected rail road from Baltimore to the Ohio, over the Chesapeake and Ohio Canal; among the most decided of which was, that the former was to reach the western trade, by a different and shorter route. Upon this latter point the most minute calculations are made, of the differences, in distance and time, between the known route of the canal and the intended route of the rail road. The direct route, proposed for the Rail Road, as contrasted with the circuitous route [**46]  chosen for the canal, was vauntingly printed in capitals, and its various advantages reiterated in every form calculated to illustrate the superiority of the rail road over the canal. The charter of the Rail Road Company was immediately solicited, and obtained of the legislature of Maryland, then in session, by the committee or some of them, named in the said printed proceedings; the pamphlet containing the said proceedings was circulated among the members of the legislature, and the same topics were enforced and illustrated by the committee, in the course of their solicitations. All the active and influential persons, composing the said meeting, and its committees, became members of the corporation, when the said Rail Road Company became incorporated, and the president and directors of that company were chosen from among the same description of persons, and so continued to the time of the filing of the complainants' said bills, and yet so continue, as these respondents are credibly and certainly informed, and do verily believe. One of the said pamphlets, so published by the said meeting, or by its committee, is hereto annexed among the scheduled documents; and to that, as well as [**47]  to the representations and memorials of the said rail road committee to the legislature, and the proceedings of the legislature thereon, preparatory to the grant of the said rail road charter, these respondents pray that reference may be had, as part and parcel of this answer.

These respondents are further credibly and certainly informed, and verily believe, that not only was all idea of any interference with the site or route of the canal kept out of view, and masked by the general proposition of a different route for the rail road, studiously impressed on the legislature, and promulgated to the public, as one of the pre-eminent merits of the rail road project, but that the said parties, so engaged and interested in that project, and in the promotion of it as aforesaid, and now claiming the benefits of the charter for the same, did, both before and after the grant of that charter, and while the same was in a course of solicitation before the legislature, and down to a period considerably posterior to the subscription of the stock, and the formation of the company, even specify the difference between the two routes, both to the members of the legislature, and otherwise, to the [**48]  public; that is, a direct route from Baltimore to the Ohio; cutting down the hills between Baltimore and the Monocacy 50 or 60 feet, by machinery, and forming an inclined plane to the Monocacy; and then crossing the mountains in the direct route to the Ohio, by a number of stationary steam-engines, computed at the number of a hundred; that afterwards, in the winter of 1827-8, when the complainants were soliciting of the legislature the law authorizing a subscription on the part of the State to the rail road stock, the president of the said Rail Road Company, in behalf of the company, assured the members of the legislature, and especially the members from the western counties, that the rail road would pass by Westminster, through Harman's gap to Williamsport, and actually accepted the services of Mr. James Johnson, of Frederick, to explore the mountains on that route; that the said parties, on all these occasions, and continually, until they formed their sudden resolution, in May, 1828, to pounce upon the route and site chosen for the canal, publicly and distinctly disclaimed any rival ship or interference with the canal; and gave out that the comparative directness and shortness of [**49]  the route of the rail road, and its other advantages, would place it above all competition from the canal. If on the other hand, the new route now proposed for the rail road, and the idea of ousting the Chesapeake and Ohio Canal of its chosen and proper route were after thoughts, originating with the complainants, or suggested to them, after their organization as a body corporate under their charter, then it is equally a perversion and abuse, in practice, of the original and genuine intent of their charter, and the privileges which that instrument was designed to confer on them. These respondents are not certainly or precisely informed at what time such change in their views was effected, or upon what ostensible grounds; but these respondents have good reason to think and believe, and do verily think and believe, that it was not until after the advertisements of the said commissioners, notifying a call of the stockholders of the Chesapeake and Ohio Canal Company, and the near prospect of large subscriptions to the stock of that company, from the State of Maryland, and the United States, gave sure promise of its speedy and efficient organization, and suggested to the complainants the [**50]  policy of some bold and extraordinary measures to defeat it. The actual operations of the complainants, through their agents, in appropriating to themselves the route and site chosen for the canal, did not commence, as these respondents have good reason to believe, and do verily believe, and so far as they have been able to ascertain from the documents and exhibits of the complainants, or other evidence, till some time about the middle of May, 1828.

These respondents are further credibly and certainly informed, and do verily believe, that the real tendency and effect of those operations, as an adversary interference with the canal, were studiously masked and concealed by the complainants and their agents; and that they pushed them on with unusual and otherwise uncalled for hurry and precipitation, for the direct and concerted purpose of completely forestalling the chosen and well known route and site of the canal, before any of the persons materially interested in the conservation of its rights could have notice; and with such views and intents, that the agents who were employed by the complainants in making their locations of the rail road on the route of the canal, gave out [**51]  to the people in the neighborhood who witnessed their proceedings, that they were merely making experiments, and intended no interference with the canal; and some of the persons with whom contracts were made for cessions of their lands, were also informed by such agents, that the only intent and effect of such contract, were to give permission to the surveyors of the rail road to pass through. So much, however is certain, that it was not till about the 7th of June, 1828, that the persons principally concerned in the conservation, ad interim, of the rights and interest of the canal, (as the said central committee, the said commissioners appointed to open subscription books, and call the first meeting of the stockholders, the Secretary of the Treasury representing the interest of the United States in the stock of the company, and other principal stockholders,) received with the utmost surprise the first information that the agents of the complainants were proceeding with the utmost haste and secrecy in an attempt to forestall the chosen route and site of the canal, by making their surveys upon the most important and indispensable parts of it, and taking up the ground by contracts, with [**52]  the adjacent proprietors. Measures were immediately taken at Washington, by the persons principally interested, and with the concurrence of the Secretary of the Treasury, to despatch proper agents, and counsel, to ascertain the true state of the case, and to take the proper measures for the protection of the rights of the Canal Company. The bill of injunction in the name of this company, and of the Potomac Company, against the now complainants, &c. in Washington County Court, and the injunction thereon grounded, on the 10th of June, 1828, to which the complainants have referred in their said bills, were the result of those measures. To that bill, a copy of which is hereto annexed, these respondents also refer, and pray that it may be taken as part of this answer, now here re-asserting the material facts therein stated, and all the rights and immunities therein claimed and asserted on behalf of this company; of all which, they pray that they may have the like benefit, as if ever so formally averred or pleaded in this answer.

These respondents further answering say, that at the Point of Rocks where the Potomac intersects the ridge of the Kitoctin Mountain, and where the pretended [**53]  route of the said rail road is described by the complainants in their said bills, to strike the Potomac river, there is one of those narrow passes in the exact route and site of the canal as officially and definitively selected, surveyed, and laid down as aforesaid, which presents no choice of ground for the canal; but where for a considerable distance up the river along the foot of the mountain and its spurs, the canal is confined by the nature of the ground within certain primeval and unremovable barriers; as is more particularly shewn and illustrated by the topographical descriptions, maps and profiles of the engineers, herewith exhibited, and above referred to. Through the whole of this pass, the space between the jutting and precipitous rocks on the one hand, and the river on the other, is so narrow, that in order to obtain the proper and necessary breadth for the canal and its towing path, a solid and wide wall must be constructed in the river; and if the canal be intercepted and cut off by the rail road, or otherwise, from that single route through this pass, it must be completely intercepted, and cut off from the whole of its route above, and be either entirely stopped and [**54]  defeated, or compelled to the precarious, dangerous, and enormously expensive, and every way inconvenient and burdensome expedient of crossing to the opposite side of the river on an aqueduct, and then in order to regain its route to its western terminus, of re-crossing the river on another such aqueduct, at such unknown and uncertain point above, certainly not lower than Cumberland, as where it may please the complainants to allow them verge and space enough. Through all the space between these two points on the southern and eastern bank of the river, these respondents will then have to explore a new route and site for their canal; all the elaborate reconnaissances, surveys, maps, plans, &c. by which the present and appropriate route and site of the canal have been determined; all the estimates already made of its cost, inseparable as are their date from the localities of the actual route and site of the canal so determined, and upon the faith of which, and of the already ascertained practicability of that route, the subscriptions to the stock of the canal have been made; all the labors and expenses of years consumed by the engineers of the United States, and of this company and their [**55]  co-adjutors, in ascertaining these results, must then be utterly wasted and thrown away, and the whole progress be gone over again, on the opposite side of the river, at an immense increase of expense, and loss of time to the said Canal Company, and to the utter peril of the franchise bestowed on them by their charter, and every way to their inconvenience and oppression. Besides, if it were possible (which it is not,) for the said Canal Company, after deserting their appropriate route as already specifically selected, surveyed and laid down, and conceding to the rail road the choice of the site next the river, at any labor or expense, within the reasonable compass of human means, and at all commensurate with the object, to lay off and conduct the canal out side of the rail road, by cutting down the sides of the mountains and rocky precipices, that bound their operations through the said pass, and through many other narrow and difficult passes of a like description, and presenting some of them equal, and others nearly equal difficulties on the route in controversy from the Point of Rocks to Cumberland, to the proper level, and of the proper breadth for the canal and its towing path,  [**56]  so as to keep the canal on the same side of the river, with the rail road interposed between it and the river, all the way between those points, still the inconveniencies and impediments to the proper construction, supply and use of the canal, would be immense and incalculable, if not insuperable, by its being cut off and intercepted in so great a portion of its route, from its cognate source and appendage, the river, and the numerous and necessary feeders and communications between it and the river, the frequent and continually recurring necessity of such communications throughout that route, being indispensable alike to the proper construction of the canal and its appendages, as to the purposes of its intercourse, commerce and navigation, for which alone, it was and is designed. The above mentioned pass at the Point of Rocks, and for some distance above the point so called, is not the only one of that description, and presenting the like narrow and difficult bounds to the canal, on the route in controversy, from that point to Cumberland; but there are numerous others on that route, where the Potomac breaks through the numerous ridges, mountains, and rocky precipices, where it is [**57]  hemmed in by rocky and high banks, with a very narrow space between, and where in some instances equal, and in other instances nearly equal difficulty, labor and expense, to open and improve the site for the passage of the canal and its appendages, occur as at the Point of Rocks, as is more particularly shewn and illustrated by the documents above referred to, and cited for the topography of this last mentioned pass.

These respondents submit to the equity and discretion of this court, that even if originally, and by virtue of their prior grants and franchises, they had no priority of right to the choice and selection of the route and site of their canal, along the margin and bank of the River Potomac; if no authorized, determinate, and binding selection and designation of such route and site had been made, and if the complainants stood on a foot of perfect equality as to the date and origin of their franchise, still the preferable right of this company to conduct and construct their canal on the route and site in controversy, is just as absolutely determined by a concurrence of equitable and cogent circumstances, by the intrinsic qualities and faculties of these two works, and [**58]  by their respective relations to the means, the objects, and the uses of their construction, and to the nature of the obstructions and public inconveniencies which they are designed to remove by artificial means. Because, according to the complainants' own shewing, and the facts are otherwise true and notorious, they have the choice of two, or more, practical routes for their rail road, without any interference with the canal, or connection with, or even approximation to the river; the different routes only presenting some differences in the comparative labor and expense of construction; and these compensated, if they occur with any considerable increase on the more northern route originally proposed for the rail road, by the advantages and savings from directness of course and shortness of distance, as the principal and leading personages, both among the original projectors, and promoters, and the present managers and proprietors of the rail road, have repeatedly averred, and publicly contended; the principle and the operation of the lifting power of stationary steam engines, by which the rail road overcomes ascents, and gains new levels, admit of an infinitely greater diversity and [**59]  extent of application than that of the canal, circumscribed and limited as it is, by water levels, and are perfectly practicable and convenient, and within the ordinary compass of that power, either to overcome all the necessary ascents on the more northern and direct route first proposed for the said rail road; or if what the complainants designate the southern and circuitous route be preferred by them, to assume with ease and convenience, a higher level than the canal on that route, and leave the canal ample verge and room between the rail road and the river, there is no necessary or proper connection or dependence between the rail road and the river, either intrinsically, as regards the construction, appendages, and uses of the rail road, or relatively as regards the purposes of intercourse, trade, and commerce, which the rail road was designed to subserve; whereas the river is, as it were, the life-blood of the canal; and continual access and frequent communication from the one to the other, are inseparable from the very idea of the canal; and lastly, the complainants, before they took any step towards a change of their original route, for the one now in controversy, or towards [**60]  any claim or appropriation of the latter, or even contemplated any such change, claim or appropriation, had the most ample, direct and conclusive knowledge and notice of all the steps that had been taken to designate and appropriate this same route for the canal, they had the most certain knowledge that every procedure, practicable in the nature of things, had been adopted to consummate and render effectual such designation and appropriation for the canal route and site, both before and after the consummation of the charter to the said Canal Company by the passage of the act of Congress confirming it, and before the charter to the Rail Road Company was either enacted or projected; and that such designation and appropriation of the route and site of the canal, its ascertained practicability and facilities of execution on that route, and the estimates of its capital and cost, which were founded on the local circumstances of that route, all entered into the considerations, motives, and terms of the charter, and more distinctly of the subscription to the capital stock created by it; and with the entire notice and consciousness of all these circumstances, the complainants, at the very moment [**61]  when they perceived that the said Canal Company, then legally constituted a body corporate, were just coming into the actual fruition of the right thus claimed and secured to them, took advantage of their want of executive organization to forestall and oust them of that right, under the naked pretext that the proprietary right and title of the lands necessary to be purchased or condemned of individuals, had not been technically vested in the company. But these respondents are well advised by counsel, that they may lawfully and of right maintain before all courts of law or equity, and in all other places whatsoever, and they do now here maintain, that independent of any prior and specific location, survey, or appropriation, of any precise site or route of the canal, there was originally vested in and guarantied to the late Potomac Company, by virtue of their charter, the exclusive privilege, use and property, of the entire stream, bed and channel, of the river Potomac, with its branches and tributaries, and whatsoever as part, parcel, or appendage of the river, constituted any part of the public domain from tide water to the highest place practicable for navigation on the north branch [**62]  of that river; and over and above these, the prior and exclusive election, pre-emption and appropriation, by the prescribed modes of purchase or condemnation from all the adjacent lands of the individual proprietors, all along the banks, cliffs and low grounds contiguous to the river, and within the proper sphere and compass of any of the authorized operations of the company, of the proper ground for the route and site of the canal or canals, and the auxiliary works and appendages of the same, and of the materials for the same, contemplated and authorized by that charter; that this exclusive right and priority of election, pre-emption and appropriation, extended to all the lands of individuals and public domains within the precincts of any of the actual or possible operations of the said company, authorized by their said charter; and that within those precincts no other corporation in present or future existence, nor any other description or body of men whatever, collectively or individually, had or could acquire any right or title under any pretence of a right of way, road or improvement whatsoever, public or private, in any manner to restrict or confine the said Potomac Company,  [**63]  or their authorized operations under their charter, to any one among any possible number of locations or sites, or in any manner to diminish or circumscribe their free choice and election of the same; far less to exclude them from priority in the choice and election of the only, or of the most eligible, practicable, and convenient, and still less of previously elected and designed locations or sites, for the proper execution of the works authorized by their charter. That all these rights and privileges, in all their integrity, force and efficacy, have been and are duly and indefeasibly transferred to and vested in these respondents, by virtue of their said charter, and of the surrender and transfer to them from the late Potomac Company; with such extensions and modifications as the terms of this new charter and the extended and improved scheme and plan of the works thereby authorized, prescribe or require. That independent of any proprietary rights or corporate privileges and immunities specifically derived by these respondents from the late Potomac Company, all the rights, privileges and immunities herein before described or mentioned, as vested in or guarantied to the Potomac Company,  [**64]  and all the analogous rights, privileges and immunities, enlarged and modified in conformity to the scheme and provisions of the new charter of these respondents, and to the more extended and comprehensive plan of the works and improvements thereby authorized, were and are indefeasibly vested in and guarantied to these respondents by the sole force and effect of their own charter. That the charter of the said Rail Road Company does not, and of right could not, in terms, abolish or take away, or in any manner diminish or alter, in the whole or in part, either of the prior charters to the said Potomac Company, and to these respondents, or any of the corporate rights, privileges or immunities expressly granted or necessarily inferred from the said prior charters or either of them; and that neither of the said charters, nor of the franchises thereby created, can be abolished, taken away, or in any manner altered or diminished by implication; even if the legislature of Maryland were competent, which it was not, when the charter to the Rail Road Company was granted, to pass any law or grant any charter, or any right, title, privilege or authority, to be exercised under such law or charter,  [**65]  abolishing, taking away, or materially diminishing the said prior charters, or either of them, or any of the rights, privileges or immunities by them, or either of them, communicated to and vested in these respondents. That the charter granted to these respondents, as well as that to the late Potomac Company, being in the nature not only of a contract between the sovereign parties to it on the one hand, and the members of the body corporate thereby created on the other, but of a solemn and binding compact between those sovereign parties themselves, was, and is, altogether irrepealable and indefeasible, in the whole, or in any part, by either of these parties, without the concurrence of all; or by all without the assent of the corporation in which the rights, privileges and immunities granted by such charter, are vested and reside. That the said charter of the complainants, and the authority exercised, or pretended to be exercised under it, in so far as the same purport, or are, or may be construed and executed in derogation of the corporate rights, privileges or immunities granted and vested by the said prior charters, or either of them, are repugnant to the constitution of the United [**66]  States, and utterly inoperative and void; and lastly, that whatever the abstract right of prior choice and election claimed by these respondents in other possible routes or sites for their canal, and the incidental operations authorized by their charter, the ground designated for the route and site now in controversy, has been effectually elected and appropriated by these respondents to the exclusion of the complainants: of all which matters, these respondents crave all the benefit and advantage in this answer, that they might or could have had in any form of equity pleading whatever.

Of all the documents of title under which the complainants pretend a claim to the route and site in controversy for their rail road, and to the lands in controversy, as referred to, and it is presumed, filed with their said bills, these respondents or their counsel have only examined such, as were filed for enrollment in the clerk's office of Washington county, Maryland, as late as the 10th of June last, and the clerk's office of Frederick county, as late as the 11th of the same month; and the agreements with Henry and Frederick Dellinger, filed in this court with the complainants' bills against [**67]  those persons, in the same month; the documents so examined, comprehend, as these respondents are credibly and certainly informed, and verily believe, the whole of the said pass at and above the Point of Rocks, and some other of the like narrow and difficult passes on the route in controversy, and the identical route and site elected, designated and surveyed for the canal as aforesaid; and as to all the other documents of title set up and pretended by the complainants in the said bills, and therein referred to, as exhibits, such as deeds, agreements, locations, and specifications of locations, warrants for condemnation, &c. these respondents are not more particularly informed of their nature or authenticity, than what they collect from the allegations of the complainants in their said bills, and from careful inquiries in the country, into the nature and extent of the ground, covered by the claims of the complainants, in virtue of those documents, without any actual inspection of the documents themselves; and therefore, for greater certainty, they refer to the said documents, and exhibits themselves, and the authentication of the same; all of which, or office copies of such of the same [**68]  as have been duly recorded, these respondents presume, are, or ought to be filed, as the exhibits referred to, by the complainants in their said bills. The ground, which these documents import, an intent to bargain or sell, or appropriate, or in any manner to affect by location or condemnation, and which the complainants now claim in virtue thereof, for the route and site of the said rail road, throughout the whole extent of that ground upon or towards the line of the river Potomac, includes the identical route and site selected, designated and surveyed for the said canal as aforesaid, and all the slight variations of the same in the several reconnaissances, surveys, and locations made of the same as aforesaid; and every other practicable route and site for the canal and its appendages on the hither side of the river, from the Point of Rocks to Cumberland; or if there be any gap in those pretended appropriations of such ground for the rail road, where the ground designated for the route of the canal is not covered by that claimed under those documents, it would be rendered utterly useless and impracticable to these respondents, if the actual claims of the complainants were allowed,  [**69]  but whatever may be the local extent of the ground so claimed by the complainants in virtue of their said pretended locations, and appropriations of the same, the complainants, in their said bills; are understood to claim, as the fact is otherwise certain, that it comprehends the whole of the said pass at and above the Point of Rocks, and all the most difficult of the other narrow passes above described as on the route in controversy; and without the possession of which these respondents would be compelled to abandon the whole of the designated route of their canal, without having left to them any practicable route for the same on the hither side of the river.

The ground so claimed by the complainants in virtue of the several titles and documents referred to in their said bills, extends to the river Potomac itself, comprehending whatever of its margin and water may appertain to the lands, or rights of the individual proprietors; and in conducting the said rail road through several of the narrow and difficult passes above mentioned, the complainants would have to construct walls in the bed of the river, in order to get the proper breadth of their road, in like manner as these respondents [**70]  would have to do for their canal, at the same places; and these respondents have no doubt it is the plan of the said rail road, as devised and specified by the engineers of the complainants to construct such river walls.

These respondents do not know, admit or believe, that the complainants, had caused any comparative or experimental examination of what, in their said bills, they have described as the southern route for their said rail road, that is, of the route in controversy from the Point of Rocks to Cumberland, or any part of it, to be made, or that there was any recommendation of that route, founded on any preliminary examination of the same by their engineers, when they determined upon the attempt, in direct and concerted hostility to, and derogation of, the rights of these respondents, to adopt and appropriate that route to themselves, and commenced their operations in May, 1828, for the location of their road on that route, and the appropriation of the ground constituting the route and site of the canal as aforesaid; but these respondents are credibly and certainly informed, and do verily believe, that without any previous examination of that route by their direction [**71]  and authority, they suddenly despatched their agents, attorneys and engineers, sometime about or after the middle of May, 1828, (as to the precise time these respondents for greater certainty, refer to the documents of title, whether the deeds, agreements or warrants, exhibited with the said bills of the complainants,) to seize upon the said route by the means set forth in their said bills; and that, without any previous survey, or examination whatever, of the route on their part or behalf, they made their pitch at once, and in the first instance, upon the narrow and difficult passes above described on that route, "and wherever the character of the ground was such (according to the description of it by the complainants in the said bills,) as to leave but little choice in the location of the said road," and of course, no choice in that of the canal; that these measures were pursued with the most extraordinary and precipitant haste; their agents riding about and ranging the country with ceaseless activity day and night, hunting up the proprietors of the ground on the route, and soliciting from them cessions for the rail road; and with such anxious vigilance and activity, and celerity [**72]  of movement, were all their operations for the location of the site of the rail road, and for taking up and forestalling the proprietary rights in the ground, conducted by the agents of the complainants, and the officers of the United States serving them as engineers, that the party more resembled a partizan corps meditating or guarding against surprise, on the flank of an enemy, than persons engaged in the ordinary business either of contract or of civil engineering.

The engineers who were employed by the complainants on that service, were enabled to perform such of the said operations as fell to their share, (and they were not confined, as these respondents are credibly informed and believe, to operations within the ordinary sphere of engineers, either civil or military, but extended to solicitations and negotiations with the individual proprietors, for cessions of their lands,) with so much the more case and despatch, as most of them had before been attached to the said board of internal improvement, and actually engaged under the direction of that board in the reconnaissances and surveys of the route of the Chesapeake and Ohio Canal, and in making up the memoirs, topographical [**73]  descriptions, drawings, maps, and profiles of the route and plan of the canal as above stated, of which or of the geographical and topographical details and information derived from which, they made free and frequent use (as these respondents are further credibly informed and verily believed,) in their locations of the said rail road upon the said route; and these respondents have the strongest reason to think and believe, and do verily think and believe, that the complainants were urged to the instant commencement of these operations, and to the extraordinary haste and precipitancy with which they pursued them, entirely by the near prospect which they perceived of an organized board of president and directors for the efficient management of the affairs of the said Canal Company, and by a design to forestall, and defeat the expected operations of that board, to secure, by purchase or condemnation, the ground already designated and selected for the route and site of the canal.

In further confirmation of what these respondents have already averred, the full and detailed knowledge and notice of the long standing, authentic and notorious election and appropriation of the route and [**74]  site in controversy, for the canal, and of all the steps that have been taken to mark it out, and set it apart for that purpose, and how completely it had been incorporated and identified with the whole scheme and plan of the canal; with which knowledge and notice, the complainants, and their agents and engineers, commenced and carried on all their said operations to counteract and defeat these respondents, in the fulfilment of the great public and beneficial ends and objects of their institution; and in order more clearly to illustrate the inequitable use and application made of such knowledge, which, instead of serving as a protection to rights, the existence of which is communicated, was laid hold of, and used to overreach and defeat those rights; and how unscrupulously, in other respects, the very instruments and means dedicated to the advancement and execution of the scheme of the canal, have been converted into the instruments and means of the most deadly attempts against its vital interests, and the interests of the identical parties, who have provided those same instruments and means, and lent the aid of them to the complainants for a very different purpose; these respondents [**75]  say, that of the nine delegates from Baltimore to the said Canal Convention in December, 1826, eight of them were prominent and active members of the said meeting at the city of Baltimore, when the project of the said rail road was set on foot, and of the committees appointed by that meeting; and six of those eight actually attended the said convention, and took part in its deliberations and proceedings, as will more particularly and at large appear, by a reference to the above mentioned proceedings of the said Baltimore meeting and Canal Convention, one of them was appointed the president of the said Rail Road Company at their first election, and has ever since continued so; and was also appointed by the executive of Maryland, one of the commissioners to open the subscription books for the capital stock of the said Canal Company; and others of the said delegates were, it is believed, appointed directors of the said Rail Road Company; that the board of engineers, officiating for the said Rail Road Company, was always, and yet is in part composed, and their corps of field engineers was always, and yet is entirely composed of officers belonging to the several corps of engineers, and [**76]  of the army of the United States, and of the civil engineers in the service of the United States; all of whom were lent by the government of the United States to the complainants, to perform the scientific operations necessary to execute their then supposed plan of a rail road; and it is understood, the complainants enjoy the services of these engineers at public expense; that any idea of interference between the rail road and the canal, was then, and ever after, till the above mentioned intelligence reached and surprised the Secretary of the Treasury in June last, the remotest imaginable from the mind of the government, and was necessarily known to the complainants to be so: that of the various descriptions of engineers, so borrowed by the complainants from the public service, six had been before employed and actively engaged, under the above mentioned board of internal improvement, in the identical reconnaissance, surveys, &c. &c., of the route of the Chesapeake and Ohio Canal, in the years 1824, 1825 and 1826, communicated by the President to Congress, and published as above mentioned; all which will more particularly and at large appear by reference to the already recited reports [**77]  of the said board of internal improvement; and to the annexed document, certified from the War Department of the United States, containing the roll of the engineers detached from the public service, for the service of the complainants, with the orders from the chief engineer of the United States to the three principals among them; and also the roll of the various engineers in the service of the United States, constituting the said board of internal improvement, and its assistants, and the corps of engineers, of various classes actually employed, under the direction of that board in the various reconnaissances, surveys, &c., &c., of the route of the Chesapeake and Ohio Canal.

Now these respondents, as further advised by their counsel, and further answering, say, that by the pretensions set up by the complainants in their said bills, to oust and deprive these respondents of the route and site for their canal, here in controversy, and to intrude the said rail road upon the same, by the retrospective operations and effect of the rail road charter, or any other statute of Maryland, or of any other State, and in virtue of the pretended authority, which the complainants assert and exercise [**78]  under the said State, and their charter from the same, as set up and asserted in their said bills, there is now here drawn in question, the construction of the constitution of the United States, and especially of that clause of the same, whereby it is ordained and established, that no State shall pass any ex post facto law, or law impairing the obligation of contracts; and of the several statutes of the United States, to wit, the act of Congress, passed on the 30th April, 1824, appropriating thirty thousand dollars for the purpose of procuring the necessary surveys, maps, plans and estimates, upon the subject of roads and canals, &c.; the act of Congress, passed on the 3d March, 1825, confirming an act of the legislature of Virginia, incorporating the Chesapeake and Ohio Canal Company, and an act of the State of Maryland confirming the said act of Virginia, &c.; the act of Congress passed on the 23d May, 1828, to amend and explain the two last mentioned acts of Maryland and Virginia, &c.; and the two acts of Congress passed on the 24th May, 1828, the one authorizing a subscription to the stock of the Chesapeake and Ohio Canal Company, the other enlarging the powers of the several corporations [**79]  of the District of Columbia, and for other purposes; under which said clause of the constitution of the United States, or under such other clause or clauses, and provisions of the same, as apply to, and operate on the case, and under which said statutes of the United States, or under such of them, and such parts of them, as apply to and operate on the case, these respondents, in virtue of their aforesaid charter, and of the several statutes and acts of Virginia, Maryland, and the United States, constituting such charter, or altering or amending the same, or anywise relating to the same, and in virtue of the rights and interests thereby, and by the authority of the same, vested in these respondents, do now here before this court, set up and claim their prior and preferable title, right and privilege, to construct their said canal, and its incidental works and appendages, on the precise route and site designated for them as aforesaid, and now in controversy; and to appropriate by the prescribed modes of purchase or condemnation, the lands and tenements in controversy, on, and near that route and site, and through which the said canal is intended to be conducted, and the necessary materials [**80]  found on such lands, for the construction of the said canal and its incidental works and appendages; and these respondents do now here set up, and claim before this court, under the constitution and statutes of the United States aforesaid, and in virtue of the rights, interests and authority, by force of the said statutes, and of the other laws aforesaid, vested in these respondents, an exemption of such, their prior and preferable title, right and privileges, aforesaid, from the operation and effect of the charter granted to the complainants as aforesaid, and of the pretended authority set up, asserted, and exercised under the same as aforesaid; and from all diminution and interference, under pretence of such charter or authority; and there is in like manner, now here drawn in question, the validity of the statute of Maryland incorporating the Baltimore and Ohio Rail Road Company, and of the pretended authority so set up, asserted, and exercised by the complainants under that statute, in so far as that statute, or that authority has been, is, or may be held or construed, set up, asserted, or exercised to operate any revocation, diminution, alteration or interference of, or with the [**81]  prior and preferable title, right and privilege so set up and claimed by these respondents as aforesaid, or in any manner to set up and assert any adversary title, right or privilege, or the pretence of such in the complainants; the said statute and the said authority, so set up, asserted and exercised under the same by the complainants aforesaid, being so far, and to every such intent and purpose as aforesaid, repugnant to the constitution of the United States; of all which matters these respondents crave all the benefit and advantages in this answer, that they might or could have had from any form of averment, or from any form or mode of equity pleading whatever.

The general replication was filed to the answer.

BLAND, chancellor, afterwards, on the 21st of July, 1829, with the consent of parties, ordered, that the three bills be consolidated, and that the answer filed on the 16th of May last, be received as an answer to said three bills so consolidated, subject to all just exceptions.

And on the 24th of September, 1829, on the motion to dissolve the injunction, he passed the following order.

The motion for the dissolution of the injunction heretofore granted in [**82]  this case, standing ready for hearing, the matter was opened, and the argument commenced by the solicitors of the parties, on the 21st of July last, and continued until the 6th of August following; when permission was given to add, by way of notes, some remarks upon such new matters as had not been presented in the opening, on the part of the plaintiffs. Whereupon a kind of supplemental argument in writing, was prepared on each side, which, with the pleadings and their exhibits, amounting, on the part of the defendants, to a very large mass, were submitted on the 19th of August last; since that time, I have read the proceedings, and maturely considered the whole case.

It appears that the plaintiffs, by their act of incorporation, were authorized, for the purpose of making the contemplated road, to enter upon, use and excavate, any land which might be wanted for the site of their road, or its necessary works; and to enable them to acquire a complete legal title to such land, upon making compensation for it, they were authorized to agree with the owner for the purchase of it; or if he were unwilling or incompetent to sell, or out of the county in which the property wanted, might [**83]  lie, they were authorized to obtain a warrant for having it valued and condemned to them in the mode prescribed; under these powers, they proceeded to enter upon the lands along the route they have described, as the site of their road thus located; and to procure a complete legal title to those lands, they agreed with the owners of some parts, for a legal conveyance, and had sued out warrants for the purpose of obtaining a legal title to other parts thereof, in that way. That neither the Potomac Company, (a body politic in existence at the time the plaintiffs filed their bill, and who were made defendants to it, but who have since been dissolved,) nor the present defendants, had ever, in any manner, acquired any title to the lands over which the plaintiffs had located their road; and that these defendants had, notwithstanding, attempted, and were about to obtain a legal title, in the modes authorized by their act of incorporation, for the identical same lands so entered upon, agreed for, or about to be condemned by the plaintiffs. By which means they would be enabled to interfere, very injuriously, with the rights of the plaintiffs, and involve them in great difficulties. To prevent [**84]  which, the plaintiffs prayed an injunction, which was accordingly granted.

The equity arising out of these facts, may be expressed to this effect: Where two or more are allowed, by law, to purchase and acquire a title to lands, upon certain conditions, and according to a prescribed mode of proceeding, he who does the first requisite act for that purpose, shall not be hindered in his further progress; because the law has thus held out a pledge, that no one else shall be permitted after that, so to interpose any obstacles, or to arm himself with a formal legal title, by means of which he may be, at least, enabled to litigate and embarrass, if not to overthrow, the right of him whose title had been thus, first begun. To refuse an injunction, in such a case, against an impertinent and wrongful intruder upon an inchoate title, which at common law is altogether defenceless, would be to stand by, and openly tolerate a race for the means and weapons of litigation and strife.

But the principles upon which this injunction rests, must be familiar to every one, at all acquainted with the origin of land titles in Maryland. A title to land may be obtained from the State through the land [**85]  office, among other modes, either under a common, or a special warrant; but when the legal title has been perfected under either, it relates back to the date of the special warrant, or the date of the certificate of survey, by which the particular parcel of land was designated, as that first act distinctly manifesting an intention to purchase that land so specified. After the taking of which first step toward a purchase, equity forbids any one else from interfering; and, if another person does attempt to intrude, he may be restrained in a summary way, by a caveat in the land office. The object of the caveat, as of the injunction, in this instance, is to prohibit the defendant from obtaining that to which he can have no just claim, and to prevent him from providing himself with the means of mischievous controversy. Upon these principles, I granted the injunction in this case; and I still feel satisfied that it was correctly granted.

The defendants, by their answer, have not denied, nor even questioned any of those facts upon which the plaintiffs' injunction reposes; those facts are all of them admitted, or not being denied, are now to be taken as true. But the defendants, taking [**86]  an extensive range, have gathered together and condensed in their answer, a great mass of facts and circumstances, showing, as they say, the notoriety of the public and early dedication of the ground in question, to the purposes of a canal; and they allege that there are numerous passes between the tide and Cumberland, where the Potomac breaks through the numerous ridges, mountains, and rocky precipices, where it is hemmed in by rocky and high banks, with a very narrow space between; which narrow passes being wholly taken up by the rail road, leaves no room for the canal to be constructed on the same side of the river, but at enormous expense, and which, in fact, produces such difficulties as to endanger their whole project. These allegations, and their whole case, as they state, are deducible from a multitude of acts, proceedings, and papers, which they have exhibited as a part of their answer; and all of which they aver to be public and authentic documents. In this manner they introduce a case, which, as they allege, is so sustained, that the court must take judicial notice of the facts of which it is composed; and those facts being so noticed, they give rise to a countervailing [**87]  equity, which avoids, displaces, and altogether overrules every equity upon which the plaintiffs can rely; and therefore they argue, that the court may with as much propriety, be called on now to dissolve the injunction in their case, so made out, as if they had shown a public act of the general assembly, the operation of which, displaced the equity, or was incompatible with the further continuance of this injunction.

There are some distinctions and principles which it will be useful to recall to our recollection, and constantly to bear in mind, in order to a more perfect understanding of this case. When speaking of a court of common law, or of its proceedings and powers, a distinction is always made between fact and law; and much is said in the books which treat of their proceedings, of this distinction; and it is shown, that in some instances, fact and law are inseparably blended. The difficulties with which those courts have to contend, as to where, and how, the line should be drawn between fact and law, arises, for the most part, from the peculiarity of their constitution. They are always constituted of two distinct branches, the judge, and the jury; to the judge alone belongs [**88]  the right to decide on the law; and the jury is only charged with the duty of finding the fact. All legal rules involve both law and fact; because the rule itself is either declared to be only applicable to a certain state of facts, or it is one which is assumed as always arising out of some particular fact. Every law is then nothing more than the incident, or consequence, annexed to a particular combination of facts, ex facto oritur jus--1 Stark. Ev. 406.  3 Atk. 36. In speaking of the proceedings in a Court of Chancery, the same distinction is made, and exists precisely in the same way, and to the same extent in all respects. The phrase is changed, and nothing more; we do not here speak of the distinction between fact and law; but of that between fact and equity; excepting only so far as a reference is made to the different constitution of the tribunals, the sense and meaning of the two expressions are exactly the same, to all intents and purposes. And if the chancellor were to have associated with him, a jury for the purpose of finding the facts, leaving him only to decide upon the equity, the same kind of difficulties would arise, and as often, in this court, as to [**89]  the proper distinction between fact and equity, as between fact and law, in a court of common law.

In the case of Salmon vs. Clagget, I endeavored to explain the principles by which this court had been, and would continue to be governed in relation to motions for dissolving injunctions. I stated that there was, or in many cases might be, a very clear distinction drawn between the facts composing the case on which the injunction rested, and those making up the whole case of the bill on which the relief was prayed; and the case presented by the answer, including as well the facts set forth in avoidance of, as those which are responsive to the bill. In a word, that as the equity arising out of each combination of facts, as its incident, must vary as the combination of facts essentially varied, it became necessary to determine what was that combination of facts to which the court must confine itself, on a motion to dissolve the injunction; and I then declared, that it must confine itself exclusively to the case, or combination of facts set forth in the bill, out of which the equity of the injunction arose, and to the answer of the defendants to those facts. Through the whole of the [**90]  explanation of this subject in that case, I took it for granted, that the distinction between fact and equity was perfectly understood, and constantly attended to; because it was a common, substantial, and elementary one. I was the more particular in the explanation of the peculiar, and often circumscribed nature of the case on which the injunction rested, because, as I there showed, the loose and general expressions of the English books upon this subject, however well adapted to the course of proceeding in that country, by no means conveyed a correct notion of the principles by which this court was governed; and because I perceived that although the New York adjudications, which are highly respected here, had in some cases, laid down the rule as it prevails here, and had declared it to be according to the reason of the thing; 1 Hopk. 276, 4 John. C. Rep. 499; yet they had in other cases, apparently deviated from it; 7 John. C. Rep. 323; and also because, the no less highly respectable decisions of Virginia, had sanctioned a course of proceedings in that State, which was wholly unlike ours, and as it seemed to me, unsuitable to the constitution of this court. 1 Hen. and Mun. 8.

In [**91]  this case much has been said about the injunction granted by the County Court of Washington. That case, as I have repeatedly declared, has no sort of necessary connection with this. The wrong complained of here, is the fact of the defendants endeavoring to purchase certain land which the plaintiffs were about to purchase, and to which they had previously begun to acquire a legal title. Now, I have not perceived from the pleadings in the case, or been able to gather from the arguments, that this matter of controversy is in any way involved in that suit, or that any judgment I can pronounce in this case, can in any manner bring this court in collision with the Washington County Court. There was, in truth, no necessity to have made the slightest allusion to the suit in that county court; but since that suit has been fully and specially referred to in this bill, I will here take occasion to remark, that this case has been thus made, to afford an example of the distinction, I endeavored to illustrate in the case of Salmon vs. Clagget, between the case on which the injunction rests, and the whole case of the bill upon which it prays relief. Here the plaintiffs state themselves to be purchasers,  [**92]  who had taken the first requisite step towards completing their purchase, and were going on to do so, when these defendants stepped in, and were attempting to take the bargain from them, or to put themselves in a condition to contest their complete title when it should be obtained. So far the facts were necessary to this injunction. The plaintiffs then introduce all the circumstances of the county court injunction and suit. Now, those facts could be of no service to them, as a basis for the injunction asked for here; but at the final hearing they might have been of use, as a reply to a charge of laches in not going on, with due diligence, to perfect the legal title they had begun, had it been alleged in the answer that they were unworthy of relief, because of any such negligence, since that county court injunction would have sufficiently accounted for the delay, and prevented its being thence inferred, that the plaintiffs had tacitly abandoned their incipient title. For that purpose, and as showing why the plaintiffs should be restored to those advantages, which they ought to have been allowed to derive from their first step toward a complete title, when that injunction, if at all,  [**93]  shall have been withdrawn, so as to allow them to proceed, are the only modes in which any thing that is said about the county court suit can have any bearing upon this case; and in this way, it furnishes an example in this suit, of the difference between the case of the injunction and that case, every part of which might have been necessary to give a sufficient foundation for the relief prayed.

In the consideration of a motion to dissolve an injunction, on the coming in of the answer, it is essentially necessary that these distinctions should be constantly borne in mind; and that we should be every way careful, not to confound the equity and merits of the case with that combination of facts of which the case is composed, and which gives rise to the equity upon which the injunction reposes. These distinctions are our chief or only guides through the mazes of the numerous and various allegations, averments, and arguments, which each one of the parties may introduce into the pleadings by which he exhibits his case to the court. In a court of common law, as regards the rights of the judge and jury, there may often be much difficulty in distinguishing between fact and law; but here,  [**94]  and in cases of this kind, the distinction between fact and equity being deduced from the pleading, is much more easily drawn. The allegations of the pleadings, so far as regards facts, are offered as by a witness giving testimony. The averments of fact in an injunction bill are sworn to, as by a witness, to cause the court to believe in their truth; and so believing in them, to perceive the incident equity arising therefrom, which will authorize the granting of an injunction. And a defendant is bound, and may be forced to make answer, on oath, to all the facts so stated in the bill; he responds, in many respects, as a witness; and his answer is evidence of facts, not of equity; consequently, if the pleadings in chancery are taken, as they certainly may be to this purpose, as the declarations of witnesses testifying to facts, the distinction between what must be regarded as facts, and what as equity, in a bill or answer, will be seen in a clear and striking point of view. A party speaking only as a witness, cannot be said to alter, or cause belief in any principles of equity, by making oath to their existence, since they are annexed to, and made incidents beyond his control, of certain [**95]  combinations of facts; and the court is bound, in the most emphatic sense, to take notice of all such principles without proof. Therefore, on a motion to dissolve an injunction, the best test of what are properly averments of fact, in a bill or answer, is, whether they are such matters as a witness might be called on to prove, or the truth of which must be established by evidence, to enable the court to act; if they are not, then they are either sheer principles of equity, or some of those public and established facts, such as the constitutionally appointed day of the meeting of the general assembly, or the like, of which the court is bound to take judicial notice without any proof whatever.

The defendants, in support of the position, that their case is substantially made up, only of such matters of which the court is bound to take notice, relied upon 1 Stark. Ev. 166. But the subject there treated of, can have no manner of relation to this case, as it now stands upon this motion. Here the position taken is, that no proof of any kind can be required; there, the inquiry is, concerning the public written instruments of evidence; the forms with which they must be clothed to entitle [**96]  them to be received as such, and of the nature of the matter, of which, they may be deemed sufficient proof. No one will question the soundness of the general principle there laid down. It amounts to no more than this, that the acts of the whole government, or any one of its departments, may be shown by giving in evidence those papers and documents which are the usual and established forms by which it exercises or manifests the powers belonging to it. In England, the king alone declares war; and therefore, a royal proclamation to that effect, is there held to be sufficient evidence of a state of war; in this country, Congress alone can declare war, and hence, here no instrument short of an act of Congress, can be deemed sufficient evidence of the United States having placed themselves in a state of war. This principle of evidence may, perhaps, be considered as alike applicable to all countries. But the showing that certain papers and proceedings may be used as evidence, for any purpose, by no means sustains the position, that the court is bound to take notice of them as public and authentic documents.  2 Camp. 44.

The general principle, as illustrated by the authority [**97]  relied on, applies only to the inquiry, what is proper and sufficient evidence of certain facts? The question here is, not as to the nature or the instruments of evidence, but whether the case, or the facts are such, of which no proof whatever is required; because of their belonging to that class of matters of which the court is bound to take notice. The position taken by the defendants, repudiates all proof; they aver, that their case is made up of that, which gives them a full dispensation from the necessity to produce proof of any description; and therefore, they invite the court so to look upon it, to sanction the truth of every part of it, and to act accordingly.

I take it to be clear, that as to all those facts and circumstances of which the court is bound to take notice, on a motion to dissolve an injunction, the parties stand before it in the same situation, as that in which, a dissolution is asked for, on the ground that the facts set forth by the bill, give rise to no equity upon which an injunction ought to be granted. It is a well established principle in equity, as well as at law, that a plaintiff can only obtain relief upon the strength of his own claim, and not [**98]  upon the weakness of that of his adversary; and therefore, if it should appear that the facts as stated in the bill, looking to it alone, gave rise to no equity, it is very certain, that the injunction would be dissolved, whether the defendants had answered or not, or however imperfectly they might have answered. Let it then be supposed, that an injunction had been granted to restrain the making of a canal, or the doing of any other act, under an impression, that the defendant had been clothed with no authority to do the act complained of, and it should be afterwards shown to the chancellor, that a public act of the general assembly, of which he was bound to take notice, had fully authorized that very act, it is certain, that he would, in such case, immediately dissolve the injunction, even without an answer, or without regard to the imperfections of the answer; consequently, if the exhibits of these defendants be in truth, as they have alleged, such public and authentic documents as the court is bound to notice, they might, by merely reading them to, or reminding the court of them, have obtained all the benefit from them which they could have had in any other way. If taken altogether [**99]  or separately, they give rise to such an equity as is incompatible with that on which the injunction rests, it must be dissolved. This might have been done by the defendants, without making any answer; but a defendant may, in general, insist on any matter, by way of answer, which he may take advantage of, by plea or demurrer; here the answer relies expressly upon that countervailing equity arising out of the combination of facts which it has set forth, in avoidance of the plaintiff's case; and therefore, if those facts are such as the court is bound to notice, their being couched in the form of an answer, cannot release the court from that obligation; nor can they be thus rendered, in any manner, less acceptable to the court, or less available to the plaintiffs, than if they had been shown in any other way.

It is laid down as clear law, that no evidence can be required to prove the existence of a fact, which must have happened according to the constant and invariable course of nature, or to prove any general law, or other public matter, of which the courts are bound to take judicial notice. An act of assembly relating to a public highway, is a public act of which they will take [**100]  notice; but of private acts they take no notice. 1 Stark. Ev. 163, 400. They take notice of the order and course of proceedings in each of the two houses of the general assembly.  1 Saund. 131; but not of their journals, or votes and proceedings; 1. Ld. Raym. 15; nor are those journals, when proved, evidence of any facts stated in the resolutions or reports of committees, which are not a part of the proceedings of the house: 1 Stark. Ev. 167. The courts of justice of the several States must take notice of all public acts of Congress, even including, (as may be admitted in this case,) those which relate exclusively to the municipal affairs of the District of Columbia; but they are not bound to notice any foreign law, or law of any other State of the Union. The acts of the other States of the Union to be admitted even as evidence, must be authenticated according to the act of Congress. The courts of justice are also bound to take notice of the civil geography of the State, as of the counties, districts, and cities, established by the State government; and also of the districts and ports which are the divisions made of it by the federal government; but they do not notice the [**101]  local situation of plains within particular counties, or the distance of counties from each other. 4 Bar. & Ald. 243. And although they will notice the extent of ports, 1 Stra. 469; yet the straightening of a port, by building too far into the water, where ships or vessels might have formerly ridden, is a matter of which they cannot take notice, but it is a question of fact to be determined by a jury upon evidence. Harg. Tr. 85. As regards the subject now under consideration, the obligation of the courts of justice to take notice of various matters and things, extends thus far, and no further. It only remains to inquire, therefore, whether those matters which the defendants have condensed into the form of an answer, and proffered to the consideration of the court, are some of those of which it is bound to take judicial notice.

The line of road to be formed by the plaintiffs, and the canal to be constructed by the defendants, are both of them, declared to be public highways; and therefore, the several acts by which they have been incorporated, are public laws of which the court is bound to take notice. The acts of Congress, and of the other States of the Union, in [**102]  relation to these two public highways, may also be noticed, on the ground, that they have been called for, recognized, or adopted by public laws of this State, which have actually taken effect; but no private act of this State, nor any legislative enactment of any other State, which has not been thus expressly invoked, and in a manner, introduced into the body of our public statute law, can be noticed by this court; and therefore, none of the acts of the legislature of Virginia, or of any other State, passed prior to, or which have not been adopted by those acts of ours, of 1826, ch. 123, and 1824, ch. 79, by which the plaintiffs and defendants had been incorporated, can be now noticed. It is also certain, that all the journals, reports of committees, and every thing else, found among the proceedings of any legislative body, must, upon the present occasion, be laid aside as matters which the court cannot now notice. As to the multitude of private papers referred to in the answer, such as proceedings of sundry meetings of respectable people, who gave themselves the name of conventions, private letters and the like, as it has not been very seriously contended, that they should be noticed,  [**103]  and considered, as public and authentic documents, in any respect so as to affect the rights of property any where, or to any extent, I may, without scruple or hesitation, throw aside the whole mass of papers of that description, at least for the present, as utterly unworthy of being judicially noticed without proof, for any purpose whatever. But the defendants in their answer, say, "that at the Point of Rocks, where the Potomac intersects the ridge of the Catoctin mountain, and where the pretended route of the said rail road is described by the complainants, in their said bills, to strike the Potomac river--there is one of those narrow passes in the actual route and site of the canal, as officially and definitively selected, surveyed, and laid down as aforesaid, which presents no choice of ground for the canal; but where for a considerable distance up the river, along the foot of the mountain and its spurs, the canal is confined by the nature of the ground, within certain primeval and immoveable barriers; as is more particularly shewn and illustrated by the topographical descriptions, maps and profiles of the engineers, herewith exhibited, and above referred to. Through the whole [**104]  of this pass, the space between the jutting and precipitous rocks on the one hand, and the river on the other, is so narrow, that in order to obtain the proper and necessary breadth for the canal and its towing path, a solid and wide wall must be constructed in the river; and if the canal be intercepted and cut off by the rail road, or otherwise, from that single route through this pass, it must be completely intercepted and cut off from the whole of its route above; and be either entirely stopped and defeated, or compelled to the precarious, dangerous, and enormously expensive, and every way inconvenient and burdensome expedient, of crossing to the opposite side of the river on an aqueduct; and then, in order to regain its route to its western terminus, of recrossing the river on another such aqueduct, at such unknown and uncertain point above, certainly not lower than Cumberland, as where it may please the complainants to allow them verge and space enough." From this the defendants argue, that by an act of Congress, which the courts of justice are all bound to notice, the president was authorized to order surveys to be made of the most suitable routes for roads and canals; that therefore,  [**105]  this court must take notice that the president did execute that law by ordering surveys to be made; that one of those surveys was made expressly for this canal, as a location of its route, and as a first step towards an absolute appropriation of the land along that route, to its use; that the maps and profiles now shown are those made to exhibit the result of that survey; and that those maps and profiles clearly show, that the canal has been either altogether intercepted and cut off, or most illegally and ruinously turned aside, from its rightful and destined route by the rail road. This is drawing consequence from consequence, and piling notice upon notice, to a great extent and height indeed. The act of Congress, as a public law, it is true, must be noticed; and because the law presumes, that every officer has properly performed his duty, until the contrary appears, it must be admitted that the president did order some surveys to be made, as required by that public law. But there is no adjudged case, or principle of law, which declares it to be the duty of the courts, to take judicial notice of the execution of any public statute whatever. If they were bound to take notice of the [**106]  manner in which this public act of Congress had been executed, then, upon the same principle, they would be bound to notice the manner in which every public statute was executed. There are many public statutes requiring acts to be performed by justices of the peace and constables; but to take judicial notice of the manner in which such officers had executed a public statute, and so to admit their ex parte proceedings to affect the rights of property, would be absurd and mischievous. The various modes in which the public statutes are carried into effect by the executive officers of government, are, in principle and in law, all proceedings of the same character; they are mere facts, and are not some among those public proceedings, of which, the courts of justice are bound to take notice; consequently, when, where, and how, those surveys were made, as authorized by the act of Congress, and the topographical maps and profiles exhibiting the results of any of them, are all matters of fact to be shown and established by proof; and even when they shall have been so established, it will remain a question how far they can be received, even as evidence, to affect the interests of any one who [**107]  was not a party to their being made, or who had not, in any way admitted their verity and correctness Abstracting then, every thing from the case of the defendants, of which the court cannot take notice, and there remains nothing left to them with which they can assail the equity of the plaintiffs, except their several acts of incorporation; but with these alone they have attempted to maintain their ground.

I have read the act incorporating the plaintiffs, and also that incorporating the defendants, and compared them with each other. These two bodies politic are entirely distinct in all respects; there is not one single sentence in the acts, by which either has been incorporated, which has the most remote allusion to the other; nor does the sense of any expression contained in either of their acts of incorporation, in the slightest degree, indicate that there probably may, or possibly can arise, any jarring between their respective franchises, or collision of their several interests, in any way whatever. From all or any thing apparent upon the face of those legislative enactments, there is no room to infer, that each one of these two corporations may not proceed in all their operations,  [**108]  without the least interference with the other. If then, upon the face, and according to every fair reading of these several acts of incorporation, all is harmonious between them, the discord can only have arisen from the manner of executing the one or the other, or both of those laws, and in no other way; and that this controversy between these parties has only originated in that way, appears to be admitted by the defendants themselves. In their answer they say, that "according to the complainants' own showing, and the facts are otherwise true and notorious, they have the choice of two or more practicable routes for their rail road, without any interference with the canal, or connection with, or even approximation to the river; the different routes only presenting some differences in the comparative labor and expense of construction; and these compensated, if they occur, with any considerable increase, on the more northern route originally proposed for the rail road, by the advantages and savings, from directness of course, and shortness of distance, as the principal and leading personages, both among the original projectors and promoters, and the present managers and proprietors of [**109]  the rail road, have repeatedly averred and publicly contended, the principle, and the operation of the lifting power of stationary steam engineers, by which the rail road overcomes ascents, and gains new levels, admit of an infinitely greater diversity and extent of application than that of the canal, circumscribed and limited as it is by water levels; and are perfectly practicable and convenient, and within the ordinary compass of that power, either to overcome all the necessary ascents on the more northern and direct route first proposed for the rail road, or if, what the complainants designate the southern and circuitous route be preferred by them, to assume, with ease and convenience, a higher level than the canal, on that route, and leave the canal ample verge and room between the rail road and the river; there is no necessary and proper connection or dependence, between the rail road and the river; either intrinsically, as regards the construction, appendages and uses of the rail road, or relatively, as regards the purposes of intercourse, trade, and commerce, which the rail road was designed to subserve; whereas the river is, as it were, the life-blood of the canal; and continual [**110]  access and frequent communication, from one to the other, are inseparable, from the very idea of the canal." Here, it is distinctly alleged by the defendants, that the injury they complain of, has arisen altogether from the location which the plaintiffs have given to their road, under their act of incorporation; that is, not from the law itself, but from the execution of the law.

The defendants insist, that by virtue of their grants and franchises, they have a priority of right to the choice and selection of the route and site of their canal, along the margin and bank of the river Potomac. They mainly, and in every way, rest upon this priority of right to a choice of routes. If it exists at all, it must be founded upon the various facts and circumstances, as shown by them, when taken in connection with the acts of the general assembly, by which they have been incorporated; or it must be based upon those acts of assembly alone. But if, as in the first supposition, its foundation is composed of those facts taken with the law; then it certainly cannot avail them, upon the present motion, because, as has been shown, those facts are none of them, of that character of which the court [**111]  can now take notice and act upon. Take the other supposition; and let their alleged right be admitted to have been expressly given by a public law, of which the court must take notice; even then they cannot avail themselves of it upon the present motion; because they have been deprived of it, as they themselves state, not by the act itself by which these plaintiffs have been incorporated, but by the manner in which that law has been executed; which mode of executing the law, is clearly a matter of fact of which this court cannot now take notice.

I do not understand, that the defendants contend for an arbitrary and whimsical right of choice, which, without regard to their own real interests, may be capriciously turned against the plaintiffs, or any others, merely for the purpose of intercepting their line of operations. They certainly cannot claim such a right, with any design to use it, for the very same evil purposes of which they themselves now complain; it must be, therefore, that the right of choice for which they contend, is one, which, in its exercise, is to be governed by fairness, justice, and equity. If this be the kind of right for which they contend, and none other [**112]  could be sanctioned by a Court of Equity, then it is evident, that the court has not, as yet been furnished with the means of forming any fair and correct judgment upon the subject. It has heard, so far, only the allegations of one side, and that that too, without any proof in support of those allegations which it can allow itself to notice, and act upon. The bill and all the allegations of the plaintiffs are perfectly silent in respect to this right of choice, as now claimed by the defendants. The claim, and every fact relating to it, make their appearance, for the first time, in the answer of the defendants. The plaintiffs could not be, nor were they expected to come prepared for a vindication of their rights, so far as they are implicated by this claim;--their case, as shown by their bill, either as necessary to an injunction or to relief, called for no such disclosures as the defendants have set forth respecting this claim of a right of choice; and consequently, every thing relating to it, is entirely new matter, advanced in avoidance of the plaintiffs case, and concerning which they have yet had no opportunity to show any thing, on their part. Justice and equity, therefore, do [**113]  most manifestly require, that the injunction heretofore granted, upon an equity which the defendants have been unable, otherwise, to controvert, should be continued until the validity and extent of the claim of the defendants can be examined, and ascertained upon surveys and evidence, which each party may be allowed to make and produce; and from which the court may be furnished with the means of determining, whether or not, these two apparently harmonious acts of incorporation, have, in reality, by the improper execution of one of them, been brought into ruinous conflict with each other.

If, upon an order of survey, authorizing these parties to lay down their respective pretensions, in the usual manner, and on the return of such topographical maps and profiles as may be specially directed, if required, the fact appears, that the location of the rail road does deprive the canal of its most suitable and advantageous route, then the question will fairly arise, and be correctly presented to the court; whether the defendants have a priority of right, to the choice and selection of the route of their canal, or not. The extent of the interference and the nature of the collision between [**114]  these two bodies politic, will then, and in that way, be clearly and properly presented, according to the showing and proofs of both parties.

Commissions to take evidence were issued, the last of which was returned on the 27th May, 1831. It is not deemed necessary to recite any part of the proof, as those portions, that bear on the question decided by this court, are adverted to, by the judge who delivered the opinion of the majority of this court.

BLAND, Chancellor, (September term, 1831.)

This case standing ready for hearing, and the solicitors of the parties having been attentively heard, the proceedings were read, and maturely considered. Whereupon it is adjudged, ordered, and decreed, that the injunction heretofore granted in this case, be, and the same is hereby confirmed, and made perpetual. And it is further adjudged, ordered, and decreed, that the defendants, The Chesapeake and Ohio Canal Company, pay unto the said plaintiffs, The Baltimore and Ohio Rail Road Company, all their costs expended by them in this suit, including all the expenses of the survey, to be taxed by the register.

From this decree the defendants appealed to the Court of Appeals.  

DISPOSITION:
DECREE [**115]  REVERSED AND BILL DISMISSED.  

HEADNOTES:

In the month of June, 1828, The Baltimore and Ohio Rail Road Company, claiming under their charter, and in pursuance of locations, surveys and purchases of a route for a contemplated rail road, filed several bills in the Court of Chancery, against the Chesapeake and Ohio Canal Company. These bills suggested, that the defendants had obtained an injunction prohibiting the complainants from obtaining a title, or right of way, to their located route, and having thus stopped the progress of the complainants' undertaking, were proceeding in their turn, upon the assumption of a prior and paramount right of choice, to acquire title to the route surveyed and adopted by the complainants. The Chancellor upon this case granted an injunction. The defendants in their answers relied upon a prior right of choice to the route in controversy, and that it was impracticable for both companies to occupy it, for the purposes of their several charters. The Chancellor, upon final hearing, granted a perpetual injunction to the complainants, from which, an appeal was taken. It appeared, that the Baltimore and Ohio Rail Road Company's charter, was granted by this State on the 28th February, 1827. It declared that as soon as 10m. shares of the capital stock should be subscribed for, the subscribers should be incorporated; and it authorized the construction of a Rail Road from the city of Baltimore to some suitable point on the Ohio river, with as many tracks as the Directors might deem necessary, with power to enter upon, use, excavate, purchase, and condemn any land which may be wanted for the site of the road, and its necessary works. On the 23d April, 1827, this company was fully organized; its surveys of, and contracts for the route, were made in May and June, 1828. The charter of the Canal Company originated with the State of Virginia, and was passed upon the 27th January, 1824. It authorized the appointment of commissioners to receive subscriptions to its stock, so soon as Maryland, Pennsylvania, Congress, and the Potomac Company, should assent to its provisions and declared that whenever one-fourth of the stock "shall have been subscribed for," then the subscribers, their heirs and assigns, should be incorporated; it also provided for the Canal Company becoming the assignee and proprietor of the rights and property of the Potomac Company, which was chartered in 1784, to cut such canals, erect such locks, and perform such other works on both sides of the river Potomac, as it shall judge necessary, for opening, improving, and extending the navigation of that river, above tide water to the highest part of its north branch to which navigation can be extended, the stockholders of that company receiving an equivalent for the transfer, in the stock of the new company. This charter was accepted, assented to, and confirmed by this State upon the 31st January, 1825; and by Congress so far as to authorize a canal to be cut in the District of Columbia, upon the 3d March, 1825; by the Potomac Company upon the 16th May, 1825; and by Pennsylvania, conditionally, upon the 9th July, 1826. On the 14th November, 1827, the stock of the Canal Company was subscribed for, and on the 20th June, 1828, it was duly organized. On the 15th August following, the Potomac Company transferred its rights to the Canal Company, and this transfer was accepted upon the 17th September, 1828. The canal charter designated the valley of the Potomac for the route of the intended canal. It was in proof that between the Point of Rocks and Cumberland, in the valley of the Potomac, on the Maryland shore, (which embraced the route in controversy,) there were between 40 and 50 miles of narrow difficult passes, along which, the canal, if made without reference to the rail road, would have to be supported by embankments made in the bed of the river, many feet below the usual low water mark; that if the Rail Road Company has the choice of location, then the canal could either not be built at all, or at such an enormous cost as to render it impracticable. HELD, that the Chesapeake and Ohio Canal Company has the priority of right in the choice, or selection of ground, for the route and site of the canal in the valley of the Potomac, that the injunction should be dissolved, and the bills dismissed with costs.

Upon the true construction of the charter of the Potomac Company, (act of 1784, ch. 33) the great object in view, was the extension of a water communication from the tide water of the river Potomac, up to the highest practicable point on the north branch of that river, and the means such, as might be considered by the corporation necessary, and proper, for the accomplishment of that object, whether by sluices, dams, locks, or by canal navigation. The company was not restricted to improvements in the navigation of the bed of the river, nor to an election between different modes of improvement.

Under this construction of that charter, the valley of the Potomac, from tide water to the highest practicable point of navigation on the north branch, was specifically appropriated to the object contemplated; and at the time the Company was formed, or became incorporated, it acquired a vested right (not the actual legal title to the land) to acquire land by purchase or condemnation along the shores of that river, to be exerted, wheresoever and whensoever, it should be thought necessary and proper, for the purposes of the charter.

The charter of the Potomac Company was a contract between the States of Maryland, and Virginia, and that Company, the obligations of which could not, without the assent of the corporation, be impaired by any act of the legislature of either of the States, nor by the concurrent acts of both, consistently with that section of the constitution of the United States, which declares that "no State shall pass any law impairing the obligation of contracts."

The charter of the Baltimore and Ohio Rail Road Company (1826, ch. 123,) could not diminish the prior and paramount right of the Potomac Company to select or appropriate, by purchase or condemnation, any lands in the valley of the Potomac, for the route and site of a canal or canals, wherever it should think proper along the borders of the river, either in terms, or by any construction of it, that would have authorized the Rail Road Company, without the assent of the Potomac Company, to occupy for the route and site of the road any place along the river, in such a manner, as either to exclude that Company from a priority in a choice of a site or sites, for the construction of the works authorized by its charter, or in any manner to restrict and circumscribe it in the exercise of its prior right of election.

The Chesapeake and Ohio Canal Company, as the assignee of the Potomac Company, stands in its place, is invested with its prior and paramount rights, by express legislation of this State, and transfer from the Potomac Company, and is entitled to all its privileges and exemptions.

Neither Maryland, nor Virginia, without the consent of the other, nor both of them without the consent of Congress, could have repealed the charter of the Potomac Company, nor have received or authorized the surrender of it, and its works, to another company. The canal was declared to be, when completed, a public highway through the territories of the sovereign powers which created the Potomac Company, in which the United States were interested.

The consent of Congress to the charter of the Chesapeake and Ohio Canal Company was not given as the legislature of the District of Columbia. Congress has no capacity to act as the local legislature of that, or any other particular district, and can only act in the capacity of legislature of the Union, in which capacity, it assented to that charter, and no State, after having entered into a solemn agreement with another, is competent to renounce the constitutional assent of Congress as the legislature of the Union.

The Potomac Company having surrendered its charter, and transferred all its rights and property to the Chesapeake and Ohio Canal Company, with the assent of Congress, Virginia and Maryland, in consideration of a stipulated equivalent in the stock of the Canal Company, the value of which depends upon the inviolate conservation of the chartered rights of the Canal Company, the State of Maryland could not by subsequent legislation, impair the rights of the new Company without the consent of the parties interested.

The charter of the Chesapeake and Ohio Canal Company, clearly and specifically designates the valley of the Potomac, for the intended route of the canal it was enacted to open, from tide water to Savage Creek.

In the construction of a statute, the whole law is to be examined together, and one part construed by another, with a view to give effect and operation to the whole, if it can be done.

It is laid down in some of the books, that in construing a statute, the title (being no part of it) is not to be regarded, but we have high authority in this country for a different rule of construction. The title, however, cannot control the express words of the enacting clauses.

The preamble of a statute is a key to its construction.

Where a corporation was created to effect a particular object, as to make a river navigable which was not so before, and no particular mode of accomplishing that result was pointed out in the charter, it will be intended, that the legislature designed that the river was to be made navigable, in any of the known modes, in which the navigation of a river may be improved.

A corporation may forfeit its charter by non-user or mis-user of its franchises; but it is well known, that such forfeiture can only be enforced by judicial proceedings, instituted for that purpose, at the instance of the government; and that no cause of forfeiture can be taken advantage of collaterally or incidentally; and the same principle applies, as well, to a question of forfeiture of a particular franchise, as of the whole.

It is not every non-user that will furnish a sufficient ground of forfeiture.

Where there are various alternative modes of exercising a franchise, authorized without limitation of time by a charter, subject each of them to be changed at the will of the corporation, no experimental trial of one of the modes, could work a forfeiture of the right to resort to either of the other modes, during the continuance of the charter.

There is no difference in principle, between a law that in terms impairs the obligation of a contract, and one that produces the same effect in the construction and practical execution of it; both are repugnant to the constitution of the United States, and void.

Where the grant of an estate in land is defeasible on the non-performance of a condition subsequent, it is not defeated upon the mere happening of the contingency upon which it is defeasible, but the law permits it to continue beyond the time when such contingency occurs, unless the grantor or his heirs take advantage of the breach of such condition.

The proceeding by the government for the breach of a condition subsequent, contained in a charter of incorporation, is by scire facias, or quo warranto.

A private corporation aggregate may be dissolved by the death of all its members; or by the loss of an integral part, whereby it is rendered unable to do any corporate act, or to restore itself by a new election; or by a surrender to the government of its franchises; or by an act of the legislature repealing the act of incorporation with the assent of the corporation; or by a forfeiture of its charter through abuse or neglect of its franchises, as for a condition broken, there being a tacit condition in every such grant, that the corporation shall act up to the end of its institution.

A forfeiture must be judicially inquired into, but a dissolution need not be.

Every law which is to wrest from an individual his property, without his consent, must be strictly construed.

All statutes in pari materia are construed as one law.

A State may contract with an individual, and it is equally certain, that two or more of the States may enter into a compact or agreement inter se.

A State may contract with an individual by an act of the Legislature, and two or more States may contract in that form, inter se.

No technical words are necessary to constitute a compact or contract, which are convertible terms, and neither need be used in the instrument creating it.

It is a mutual consent of the minds of the parties concerned, respecting some property or right that is the object of the stipulation, or something that is to be done or forborne, a transaction between two or more persons in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised or stipulated by the other, and any words manifesting that congregatio mentium, are sufficient to constitute a contract.

The terms "accept" and "assent to," are words of contract, and it was by virtue of such and similar terms in the constitution of the United States, that the Federal Government, when it received the sanction of the people, and the requisite number of States, became a compact between the parties to it and the Federal Government, and not a mere confederacy or league.

A charter being a grant, is an implied contract with the corporation not to reassert the rights it has granted.

The corporate right to select and acquire land for the authorized purposes of a corporation, is property. It is an incorporeal hereditament, not a legal title to the land itself, nor a mere capacity or faculty to acquire and hold land, such as every individual possesses. But in addition to such capacity, it is a right or privilege, a portion of the eminent domain, vested in the corporation to acquire the legal title to land, subjected by the grant to its will, and thus to convert the incorporeal right into a corporeal hereditament, and in the franchise to choose and condemn land for any particular public purpose, that portion of the eminent domain granted and subsisting in one corporation, cannot be bestowed upon another to the prejudice of the former grant--nor can any other legally acquire any such right of way, or title to land over which the franchise extends, as will hinder the former corporation in the exercise and enjoyment of its franchise.

In ordinary cases the State may repeal or modify at pleasure any act of incorporation granted by it, before it is accepted, and when no rights have been acquired under it. Until accepted it is not a grant, nor the public faith pledged not to impair it.

But in relation to the Chesapeake and Ohio Canal Company, although it was not actually incorporated, and had not accepted its charter before the Baltimore and Ohio Rail Road Company was chartered and organized, yet it is entitled to all the rights, benefits, and liberties, with which it would have been invested, if it had been organized before any antagonist corporation came into existence, on the ground of the compact and agreement of Congress, and the States of Virginia and Maryland, inter se, and between them and the Potomac Company, arising from the reciprocal and concurrent acts of the three former, and the assent of the latter, the consummation of which, was the consent of the Potomac Company, given anterior to the date of the Rail Road Charter, and under the Constitution of the United States, cannot be impaired by any thing contained in that charter.

An abridgement of the right of choice in selecting the route, impairs the obligation of the contract.

As between the holders of general or common land warrants, there is no priority of right to locate; this warrant, is a mere authority to the Surveyor or proper officer to make the survey, and the certificate is the inception of title, to which, the patent, when issued, relates. The title remains in the State until the warrant is located, and will pass under a junior warrant, if first executed.

But it is not so with an act of incorporation, which when accepted, amounts to a grant, and the right conferred, a vested franchise, existing independent of any act of location or survey, which the State cannot re-assert, nor grant to any other. It is a prior right to which all subsequent grants must yield.

A chartered company may lose its prior right by acquiescing in other works, inconsistent with such rights.

Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them, as best to answer that intention, which may be collected from the cause or necessity of making the statute, or from foreign circumstances, and when discovered ought to be followed, though such construction may seem to be contrary to the letter of the statute.

If laws and statutes seem contrary to one another, yet if by interpretation they may stand together, they shall stand; and when two laws only so far disagree or differ, as that by any other construction they may both stand together, the rule, that subsequent laws abrogate prior and contrariant laws, does not apply, and the last law is no repeal of the former.

Repeals of statutes by implication are things disfavored by law, and never allowed of, but when the inconsistency and repugnancy are plain and unavoidable.

When it is manifestly the intention of the Legislature that a subsequent act shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words of it, taken strictly and grammatically, would repeal the former act.

Upon the motion to dissolve an injunction, the Chancellor confines himself exclusively to the consideration of the case, or combination of facts set forth in the bill, out of which the equity of the injunction arose, and to the answer of the defendant to those facts. PER BLAND, CHANCELLOR.

The best test of what are properly averments of facts in a bill or answer, is, whether they are such matters as a witness may be called upon to prove, or the truth of which must be established by evidence, to enable a court to act; if they are not, then such averments are either, mere principles of equity, or some of those public and established facts, of which, the court is bound to take judicial notice without any proof. IB.

As to all those facts and circumstances of which a court is bound to take notice, on a motion to dissolve an injunction the parties stand before it in the same situation, as that, in which a dissolution is asked for, on the ground that the facts set forth in the bill give rise to no equity, on which an injunction ought to be granted. IB.

If it appears that the facts as stated in a bill, looking to it only, give rise to no equity, it is very certain that the injunction would be dissolved, whether the defendant had answered or not, or however imperfectly he might have answered. IB.

No evidence can be required to prove the existence of a fact which must have happened according to the constant and invariable course of nature, or to prove any general law, or other public matter which the courts are bound to notice. IB.

It is not the duty of the courts to take judicial notice of the execution of a public statute. The various modes in which public statutes are carried into effect, by the executive officers of government are mere facts, and must be proved as facts. If relied upon to avoid an equity upon which an injunction was rightfully granted, upon the motion to dissolve, the court cannot notice them. IB.  

COUNSEL:
Walter Jones, and A. C. Magruder, for the appellants.

Daniel Webster, and Reverdy Johnson, for the appellees.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*72]  BUCHANAN, Ch. J., delivered the opinion of the court.
The charter of the Potomac Company, was created by the mutual and concurrent legislative acts of Maryland and Virginia, in the year 1784, to which there are many supplements.
The act for incorporating the Chesapeake and Ohio Canal Company, was passed by the legislature of Virginia on the 27th of January, 1824. The 1st section of which has this provision, "that so soon as the legislatures of Maryland and Pennsylvania, and the Congress of the United States, shall assent to the provisions of this act, and the Potomac Company shall have signified their assent to the same, by their corporate act, a copy whereof shall be delivered to the executives of the several States aforesaid, and to the Secretary of the Treasury of the United States, there [**116]  shall be appointed by the said executives, and President of the United States, three commissioners on the part of each State, and the government of the United States," for the purpose among other things, of causing books to be opened under the management of "persons to be by them appointed for receiving subscriptions to the capital stock of the company," &c. And by the 22d section it is enacted, "that this act or so much thereof as respects the canal and works designed to be constructed in the District of Columbia, and the states of Virginia and Maryland, shall take effect, with such necessary modification in the construction thereof, as shall fit it for such limited application or use, upon the assent of the Congress of the United States, and the legislature of Maryland being given thereto; and upon its receiving the further assent of the legislature of Pennsylvania, the whole and every section, and part thereof, shall be valid and in full force and operation."
In an act of the legislature of the state of Maryland, passed on the 31st day of January, 1825, at the December session, 1824, entitled, "an act to confirm an act of the general [**117]  assembly of the state of Virginia," entitled, "an act incorporating the Chesapeake and Ohio Canal Company," after 

 [*73]  reciting that act, the assent of the legislature is given to it in these words, "that the said act of the general assembly of Virginia be, and the same is hereby accepted, assented to, and confirmed."
In an act of the Congress of the United States, passed on the 3d of March, 1825, entitled, "an act confirming an act of the legislature of Virginia," entitled, "an act incorporating the Chesapeake and Ohio Canal Company," and an act of the State of Maryland confirming the same, the assent of Congress is given in these words, "that the act of the legislature of the State of Virginia, entitled, 'an act incorporating the Chesapeake and Ohio Canal Company,' be, and the same is hereby ratified and confirmed, so far as may be necessary for the purpose of enabling any company, that may hereafter be formed by the authority of the said act of incorporation, to carry into effect the provisions thereof, in the District of Columbia, within the exclusive jurisdiction of the United States, and no further." And on 16th of May,  [**118]  1825, the full and unqualified assent of the Potomac Company was declared and signified by a corporate act, in the manner required; with authority to the president and directors of that company, to surrender its charter, and convey all the property, rights and privileges, owned, possessed, and enjoyed under it, to the Chesapeake and Ohio Canal Company, agreeably to the provisions of the 13th section of the act incorporating the latter company; which surrender and transfer, the same section empowers the Chesapeake and Ohio Canal Company to accept. So that on the 16th of May, 1825, the act incorporating the Chesapeake and Ohio Canal Company, or so much thereof, as respects the canal and works designed to be constructed in the District of Columbia, and the States of Virginia and Maryland, in the language of the 22d section of that act "took effect," the assent of the Congress of the United States, and of the legislature of Maryland having been before given to it; and the assent of the legislature of Pennsylvania being by the same section dispensed with, so far as respects those portions 

 [*74]  of the contemplated canal, and only [**119]  required in relation to the part proposed to be made in that State. Still the assent of the legislature of Pennsylvania, on certain conditions not material in the examination of this case, which relate only to a portion of the canal designed to be constructed in this State, was given by an act of the 7th of February, 1826--and commissioners were appointed as authorized by the charter, by the President of the United States, and the executives of Virginia and Maryland, for receiving subscriptions to the capital stock of the company, &c.
On the 3d of December, 1823, the President of the United States, adverting in his message to Congress, to the proceedings of a convention, called the Chesapeake and Ohio Canal Convention, (which had sat at the city of Washington in the preceding month of November,) in relation to the scheme of the Chesapeake and Ohio Canal, recommended the authorizing by an adequate appropriation, the employment of a suitable number of the officers of the corps of engineers, to examine the ground, and report their opinion thereon. On the 30th of April, 1824, an act of Congress was passed in pursuance thereof, appropriating $ 30,000 [**120]  for the purpose of procuring the necessary surveys, plans and estimates, upon the subject of roads and canals. In the month of May, 1824, the President appointed a board of internal improvement, who were, on the 31st of the same month, instructed to "proceed to make an immediate reconnaissance of the country between the tide waters of the river Potomac, and the head of steam boat navigation of the Ohio, &c." "for the purpose of ascertaining the practicability of a communication between those points, of designating the most suitable route for the same, and of forming plans and estimates in detail, of the expense of execution, and to use every possible exertion to have their report prepared in time, to be submitted to Congress at their next session. On the 2d of February, 1825, the board of engineers for internal improvement, made a report of their proceedings, 

 [*75]  accompanied by surveys, maps and profiles, but without any estimate of the probable cost of the projected work, which was communicated to Congress by the President, on the 14th of the same month. At this time, neither the assent of Congress, nor of the Potomac Company, had been given to the act [**121]  of incorporation. That report which was immediately printed and published, by order of Congress, asserts the entire practicability of a communication between the tide waters of the river Potomac, and the head of steam boat navigation of the Ohio, by a continuous canal, which, in the report, surveys and maps, is called the Chesapeake and Ohio Canal; and that portion of it extending from the tide waters of the Potomac, to the mouth of Savage river, on the north branch of the Potomac, is designated as the eastern section, which, in the report is described in these words; "this section ascends the valley of the Potomac, as the several ridges which that river traverses and breaks through, oblige to follow its course without any deviation, the side on which it should ascend along the river, is the only choice left to the engineer."
The route of that section throughout its whole course, as surveyed and laid down by the board of engineers for internal improvement, is in the valley of the Potomac, along the shores of the river; particular places being marked, as suitable points for crossing the river from shore to shore, should it be found necessary,  [**122]  but a preference being given to the north or left side. Thus, they say in one part of the report, "this short analysis is sufficient to show, that the northern side of the valley offers the best ground for receiving the bed of the canal." And after describing the valley, they say, "such are the local features of the valley through which this section of the canal, east of the Alleghany must be directed."
On the 6th March, 1826, the legislature of Maryland passed a law for the promotion of internal improvement, incorporating a company to be called, "The Maryland Canal Company," to make a canal "from some convenient point 

 [*76]  on the Potomac River, intersecting or continuing The Chesapeake and Ohio Canal to the city of Baltimore;" authorizing a subscription by the treasurer, for the stock of the Chesapeake and Ohio Canal Company, to the whole amount of the stock of the Potomac Company owned by the State, and of the debt due to the State by that company; and also authorizing the treasurer to subscribe for 5000 shares of the stock of the Chesapeake and Ohio Canal Company, on condition among other things, that the Congress of the  [**123]  United States should by law, authorize a subscription for not less than ten thousand shares of the capital stock of the eastern section of that canal, with a proviso, that the executive of the State, "shall previously be satisfied, that the residue of the sum of money estimated by the United States' board of engineers, to be adequate to the completion of the eastern section of the Chesapeake and Ohio Canal, after deducting the amount of the subscriptions of the State of Maryland and of the United States, therein provided to be made, hath been actually subscribed by bona fide and competent subscribers." Thus recognizing the board of engineers for internal improvement, and sanctioning the survey and location, they had made of the route of the eastern section of the Chesapeake and Ohio Canal, through the valley and along the shore of the river Potomac, which was the basis of the estimate to be made by them of the amount necessary to the completion of the canal. On the 8th March, 1826, permission was given to the State of Pennsylvania, by an act of the legislature of Maryland, to make any canal or rail way, "to connect with the Chesapeake  [**124]   and Ohio Canal."
On the 23d October, 1826, the board of engineers for internal improvement made a report exhibiting a plan, and estimate of the cost of constructing the canal; which report was communicated to Congress on the 7th December, 1826, and printed and published by order of Congress. The estimated cost of the eastern section from Cumberland to Georgetown, 186 miles, is $ 8,177,081 05, which estimate is 

 [*77]  made upon the basis of the survey, before made and reported by them on the 2d February, 1825, confining the route of that section to the valley of the Potomac; and upon the construction of the canal, upon, and along the Maryland shore throughout. The engineers in their report, say, "after due investigations upon this subject, we remain convinced, that it is more expedient, less expensive, and liable to less accidents, to keep without deviation, on the same side of the valley; and the Maryland side has received the preference, for the following reasons, &c." Their estimate of the cost of the whole canal to the Ohio is $ 22,375,427 69.
These estimates not being satisfactory, and differing essentially from estimates made by the [**125]  Chesapeake and Ohio Canal Convention, and no aid being given by Congress during that session, to the Chesapeake and Ohio Canal Company; on the 3d March, 1827, a number of the members of Congress, requested of the President, that they might be submitted during the recess, to the revision of practical civil engineers, and James Geddes and Nathan S. Roberts were appointed to re-examine the route of the canal, as it had been surveyed and laid down by the board of engineers for internal improvement, and to report on the expense of constructing it.
On the 5th February, 1827, at the December session, 1826, the legislature of Maryland passed a law to amend the "act incorporating the Chesapeake and Ohio Canal Company;" the first section of which in terms requires, "that it shall receive the assent of the necessary parties thereto," and the last section provides, "that it shall commence and be in force, as soon as it shall have received the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company." This act authorizes the termination of "the eastern section of the canal, at or near the town [**126]  of Cumberland, on the river Potomac," and the substitution of inclined planes and rail ways in crossing the ridge, which separates the eastern from the western waters; and provides "that the company 

 [*78]  shall have the power to extend a branch of the canal to the coal banks, at or above the mouth of Savage," in the event, that, the western section shall leave the valley of the Potomac river, at any point below the coal banks." This act received the assent of the legislature of Virginia on the 26th February, 1827, of the Congress of the United States on the 23d May, 1828, and of the Potomac Company on the 10th July, 1828.
At the December session, 1826, on the 10th March, 1827 the legislature of Maryland passed a supplement to the act for the promotion of internal improvement, repealing certain provisos in the act to which it is a supplement, upon which, a subscription for five thousand shares of the stock of the Chesapeake and Ohio Canal Company was made to depend; and also repealing, so much of the act to incorporate the Susquehanna and Patapsco Canal Company, as should be found to be inconsistent with the provisions of [**127]  the act, to incorporate the Pennsylvania and Maryland Canal Company.
On the 20th August, 1827, due notice was given by the commissioners, that books would be opened on the 1st October following, for receiving subscriptions to the stock of the company; the books were opened accordingly, and on the 14th November, 1827, the amount of stock subscribed for unconditionally, exceeded $ 1,500,000, exclusive of subscriptions payable in the stock and debts of the Potomac Company.
At the December session, 1827, on the 2d January, 1828, the legislature of Maryland passed an act further to amend the act incorporating the Chesapeake and Ohio Canal Company; by which the stock is declared to be personal property, and aliens are authorized to subscribe for, and hold it; to commence and be in force, as soon as it should receive the assent of Congress, the legislature of Virginia, the Potomac Company, and the stockholders of the Chesapeake and Ohio Canal Company. To which, the legislature of Virginia assented on the 26th February, 1828, the Congress of 

 [*79]  the United States on the 23d May, 1828, The Chesapeake and Ohio Canal Company on the 3d July,  [**128]  1828, and the Potomac Company on the 10th July, 1828.
At the same session, on the 3d March, 1828, the legislature of Maryland passed a further supplement to the act for the promotion of internal improvement, reciting one of the conditions, upon which the treasurer of the State, had, by a former act been authorized to subscribe for five thousand shares of the stock of the Chesapeake and Ohio Canal Company; and the importance it was of, to the State, that the grant already made by her to that company, should be made dependent upon such other conditions and restrictions, as would effectually secure the completion of the work, if ever commenced, &c.; and authorizing the treasurer to subscribe for the said five thousand shares, on the condition of stock to the amount of $ 2,500,000 being subscribed for, by bona fide purchasers, with sufficient security to ensure a faithful compliance on the part of such subscribers; with other conditions requiring the agreement thereto of the president and directors of the company, and repealing any act or acts, repugnant to, or inconsistent therewith, the conditions of which act, were assented to by the company on the 23d June, 1828.  [**129]  
On the 5th March, 1828, the commissioners for receiving subscriptions to the stock, called a meeting of the stockholders on the 7th April following, for the purpose of electing a president and directors.
On the 10th March, 1828, the Secretary of War, transmitted to Congress, in obedience to a resolution of the house of representatives of the 26th of the preceding month, the report of James Geddes and Nathan S. Roberts, (the civil engineers appointed for that purpose,) of the survey and location made by them of the route of the eastern section of the Chesapeake and Ohio Canal, from a little below Cumberland, through the valley of the Potomac to the tide water at Georgetown, and along the Maryland shore of the 

 [*80]  river; accompanied by estimates of the cost of construction, amounting for a sixty feet canal, to $ 4,479,346 93.
On the 4th of April, 1828, the meeting of the stockholders which had been called on the 5th of March preceding, was deferred, for the reasons assigned by the commissioners in their publication of the postponement, that the government of the United States, and the State of Maryland, might participate in the [**130]  organization of the company, when Congress should have definitively acted on the memorials of the district corporations, and of the central committee of the Chesapeake and Ohio convention, and the commissioners; which were for a subscription to the stock of the company, and for which a bill was then depending in Congress.
The act of Congress of the 23d of May, 1828, among other things recognizes the assent given by the United States, to the charter of the Chesapeake and Ohio Canal Company, by the act of 3d of March, 1825. By an act of Congress of the 24th of May, 1828, the Secretary of the Treasury is authorized to subscribe for ten thousand shares of the stock of the Chesapeake and Ohio Canal Company, the report, survey and estimate, of Geddes and Roberts, having then been received and acted upon. And by another act of the same day, authority was given to the corporations of Washington, Georgetown, and Alexandria, to subscribe for stock, and the subscriptions before made by them, were declared to be valid and binding.
On the 26th of May, 1828, Congress having then authorized a subscription for ten thousand shares of stock, [**131]  and declared the subscriptions before made by the district corporations, to be valid and binding, a meeting of the stockholders on the 20th of June, 1828, was regularly called by the commissioners, where president and directors were elected, and the company duly organized.
On the 26th of June, 1828, the route and site surveyed by the United States' board of engineers, for internal improvement, and by Messrs. Geddes and Roberts, and communicated 

 [*81]  to Congress, were adopted (so far as they corresponded,) by the president and directors, as the line of the Chesapeake and Ohio Canal below Cumberland.
On the 10th of July, 1828, the Potomac Company assented to all the acts of Congress, and of the legislatures of Virginia and Maryland, affecting the charter of the Chesapeake and Ohio Canal Company, so far as such assent might be deemed necessary to their validity.
On the 4th of August, 1828, the Potomac Company instructed the president and directors, forthwith to surrender their charter, and convey all their rights and interests to the Chesapeake and Ohio Canal Company. On the 15th of the same month, the surrender and conveyance [**132]  were made, and on the 17th of September following, accepted by the Chesapeake and Ohio Canal Company.
Whilst these legislative and other proceedings were in progress, meetings were held in Baltimore, by a number of citizens of that place, on the 12th and 19th February, 1827, in whose printed proceedings, the advantages likely to accrue to Baltimore, from connecting her trade with the western states, by intersecting the contemplated Chesapeake and Ohio Canal within the District of Columbia, according to the route surveyed and reported by the board of engineers for internal improvement, and by a direct rail road from Baltimore, to some eligible point on the Ohio river, are contrasted, and the saving of distance by such a direct road, stated to be 140 miles; which proceedings formed the basis of an application (or memorial) which was preferred to the legislature, for an act to incorporate the Baltimore and Ohio Rail Road Company, by a committee appointed for that purpose. And on the 28th of the same month, February, 1827, the charter was passed. On the 8th of March, 1827, a law was passed by the legislature of Virginia, giving permission to the  [**133]  Rail Road Company, to extend their road through that State, but prohibiting its striking the Ohio, at a point lower than the mouth of the Little Kenawha, on the Ohio; and on the 2d day of March, 1831, permission was 

 [*82]  given them by an act of Congress, to extend a lateral road into, and within the District of Columbia.
On the 31st of March, 1827, the whole of the rail road stock was subscribed; and on the 23d of April, 1827, the company was organized by the election of its officers.
On the 20th of June, 1827, a reconnaissance of the country between Baltimore and the Ohio river, was commenced by engineers in the service of the Rail Road Company, with a view to the location of the road.
On the 28th of February, 1828, the legislature of Pennsylvania passed a law, authorizing the Rail Road Company, to extend their road through that State, to the Ohio river.
On the 3d of March, 1828, the legislature of Maryland, in a supplement to the act for the promotion of internal improvement, authorized a subscription for five thousand shares of the stock of the Rail Road Company, on condition that the company should agree to locate [**134]  it, so as that it should go to, or strike the Potomac river at some point between the mouth of the Monocacy river, and the town of Cumberland, and that it should go into Frederick, Washington, and Alleghany counties.
On the 5th of April, 1828, the engineers who had commenced their reconnaissances on the 20th of June, 1827, made a report recommending a route for the road from Baltimore by the Point of Rocks, and up the valley of the Potomac. Being the very route by the Point of Rocks, which had before been surveyed with a view to the location of the canal, by the United States' board of engineers for internal improvement; and again by Messrs. Geddes and Roberts, civil engineers, appointed by the general government for that purpose, whose report and estimates of the 7th of February, 1828, had then been made public.
The board of engineers in the service of the Rail Road Company, after examining the ground on horse-back, and without instruments, approved the report of the engineers of the 5th April, 1828, and their decision in favor of a route for the rail road by the Point of Rocks, and through 

 [*83]  the valley of the Potomac [**135]  to Williamsport, in a report of the 5th May, 1828; upon which report, the route by the Point of Rocks, and the valley of the Potomac was adopted by the company. Up to that time, no survey had been made in the valley of the Potomac, above and from the Point of Rocks, at the instance, or for the use of the Rail Road Company; and a bill was then depending in Congress for an appropriation to the Chesapeake and Ohio Canal, by a subscription to the stock of the company.
On the 12th of May, 1828, engineers were deputed by the president and directors of the Rail Road Company, to pass along the route thus adopted from the Point of Rocks to Cumberland; and wherever the character of the ground was such, as to leave but little choice as to the location of the road, or to present but one passage, to make an actual location of the same at once over such ground; in order that the actual locations so made, might serve as regulating points, for its subsequent locations over the intermediate sections, and secure the passage of the road. And at the same time, agents were deputed to take all necessary steps to procure title to, or a right of way over, the lands [**136]  upon which such actual locations should be made. In pursuance of which instructions, the engineers proceeded to make surveys for the site of the road, at the places indicated, and as actual, partial, locations of it, from the Point of Rocks along the Maryland shore of the Potomac to Cumberland. And the agents employed for that purpose, entered into contracts with some of the proprietors, for the title to, or right of way over, their lands so surveyed, and commenced process of condemnation of other parcels of land, actually surveyed for the site of the road, with the owners of which, they were unable to make contracts for the title to, or right of way over.
In this state of things, the Chesapeake and Ohio Canal Company claiming to be then duly incorporated, and the Potomac Company (not having at that time surrendered its charter and transferred its interest to the Canal Company,) 

 [*84]  filed a bill on the equity side of the Washington County Court, on the 10th June, 1828, against the Baltimore and Ohio Rail Road Company, denying the right of that company to construct its road on the route it had adopted, and just caused to be partially surveyed,  [**137]  and laid down in the valley of the Potomac from the Point of Rocks to Cumberland, upon the Maryland shore; and asserting a prior and paramount right to the choice of a route for the canal, in and along the valley of the Potomac--and obtained an injunction, granted by one of the associate judges of that court, prohibiting and enjoining the Rail Road Company, its agents and attorneys, and all persons acting by its authority, from making any contracts or agreements with, or receiving any deed or conveyance from any person or persons whatsoever, for any lands or tenements lying within the bounds already so marked out, and surveyed for the said road; and also the justices of the peace, and sheriffs of the counties of Frederick, Washington, and Alleghany, from issuing or executing any warrants, for the condemnation of any such lands, until a reasonable time should have been allowed the Canal Company, for completing the actual surveys and definitive locations of the canal, and the further order of the court.
That bill was not answered, but on the 23d June, 1828, the Rail Road Company filed a bill in chancery, against the Canal and Potomac Companies [**138]  , referring to it, and praying an injunction, prohibiting those companies and each of them, and all persons acting under their authority, or the authority of either of them, from making any contract or agreement with, or receiving any deed, or conveyance, from any of the parties to the contracts before made with the agent of the Rail Road Company, for any lands, or any interest in any lands, owned by them, or either of them, and lying within the limits of the actual location of the rail road, as surveyed and marked out by the engineers in the service of that company; and also prohibiting the justices of the peace, and sheriffs of Frederick, Washington, 

 [*85]  and Alleghany counties, from issuing or executing any warrant or warrants for the condemnation of any such land, for the use of the Canal and Potomac Companies, until the claim of those companies to a priority and right of election as set forth in their bill, filed in the Washington County Court, should have been finally heard and determined upon, or until the further order of the Court of Chancery.
On the 24th June, 1828, a second bill was filed by the Rail Road Company, for an injunction to protect [**139]  rights, that it was supposed to have acquired under the proceedings that had been instituted by its agents, for the condemnation of such portions of the land surveyed for the site of the road, as they had been unable to make contracts with the owners for; and on the 25th of the same month, a third bill was filed by the same company, for an injunction to protect rights claimed to have been acquired to lands, by actual locations for the site of the rail road, but in relation to which, no contracts had been made, or proceedings for condemnation instituted--upon each of which bills an injunction was issued, according to the prayer of it.
The complainant in neither of those bills of complaint, sets up any paramount right of election or pre-emption for the route or site of the road; but founds its claim to a right to construct the road in the valley of the Potomac, along the Maryland shore, from the Point of Rocks to Cumberland, upon the actual surveys it had caused to be made on that route, as partial locations of the road; upon the contracts made by its agents, with the owners of portions of the land so surveyed, for the title to, or right of way over them, and upon the [**140]  proceedings instituted by its agents for the condemnation of other portions, in relation to which, they were unable to make any contracts with the owners. The three bills were afterwards consolidated, and on the 8th of May, 1829, the Canal Company having then received from the Potomac Company a surrender of its charter, and a transfer of all its rights and interests, put in 

 [*86]  its answer re-asserting a prior and paramount right to the choice of a route and site for the canal, in the valley of the Potomac, as claimed in the bill filed in the Washington County Court, to which there was a general replication. At the September term, 1825, after a previous argument, on a motion to dissolve the injunction, the injunction was continued by order of the chancellor, until final hearing; and on the final hearing at the September term, 1831, it was, by a decree of the chancellor, made perpetual. From which decree the case was brought by appeal to this court.
It appears that there are, between the Point of Rocks and Cumberland, in the valley of the Potomac, on the Maryland shore, between forty and fifty miles of narrow, difficult passes, along which the [**141]  canal, if made independently, and without reference to a rail road, will, from the character of the difficulties presented, have to be supported by embankments, constructed in the bed of the river, many feet beyond the usual low water mark; that should the Rail Road Company prevail in establishing a choice of location on that route, if it would not be impossible to construct the canal along those passes, after the most eligible ground had been occupied by the rail road, it could only be done with such difficulty, and at such an expense, as that no practical engineer would recommend it, and that the expense of constructing the canal, if taken out of the valley of the Potomac, would be so enormous, as in the language of one of the engineers, to render such an undertaking, "a canal impracticability."
The question then presented for the consideration of this court is, whether the Chesapeake and Ohio Canal Company, has a priority of right, in the choice or selection of ground for the route and site of the canal in the valley of the Potomac. The decision of which question is approached, with a due sense of the extent, diversity, and magnitude of the interests involved,  [**142]  (reaching far beyond the confines of this State,) and the possible consequences both to the immediate parties and the community at large. Should the decision of this cause, have the effect to arrest the progress 

 [*87]  of the great work, commenced by the party against whose claim it is pronounced, it will be a matter of regret. But it is the business of a judge to endeavor in every case that is brought before him, to arrive at a correct conclusion; and that done, to the conviction at least of his own mind, his duty, though sometimes an unpleasant, is a very plain one, and admits of no hesitating in the discharge of it.
Proceeding then to the discharge of an obvious duty, as this case mainly depends upon the construction proper to be given to the several charters, under which, the rights asserted by the respective parties are claimed; and as the Canal Company claims to be entitled to all the rights and privileges originally granted to, and vested in the Potomac Company, it is necessary to inquire into the character and object of the charter of that company, and to ascertain what the rights and privileges granted were, (so far as concerns this controversy,) and how, and [**143]  for what cause to be divested, and that charter being also the first in order in point of date, it will be first examined; a correct understanding of which, will essentially aid in the construction of the charter of the Canal Company. One construction given to the charter of the Potomac Company, by the counsel for the Rail Road Company, and insisted on in argument, is, that the Potomac Company was not authorized to make a continuous canal, but was restricted to the improvement of the navigation of the bed of the river, with no power to make canals, except at the Great and Little Falls; and for that construction, the phraseology of the title, and of the 9th, 10th, and 17th sections, is principally relied upon. But that construction, it is believed cannot prevail, if the whole of the charter is examined together, and one part construed by another, (as every statute should be,) with a view to give effect and operation to the whole, if it can be done. In pursuance of which principle of construction, it is proposed to collate the title, with the preamble and the different provisions of the charter, having any relation to this point.

 [*88]  The charter itself [**144]  is, "an act for establishing a company for opening and extending the navigation of the river Potomac," and the preamble states, "that the extension of the navigation of the Potomac river, from tide water to the highest place practicable on the north branch, will be of great public utility;" and that "it may be necessary to cut canals, and erect locks, and other works, on both sides of the river."
The 4th section authorizes the president and directors "to agree with any person or persons, on behalf of the company, to cut such canals, and erect such locks, and perform such other works as they shall judge necessary for opening, improving and extending the navigation of the said river above tide water, to the highest part of the north branch to which navigation can be extended, and carrying on the same, from place to place, and from time to time, and upon such terms, and in such manner, as they shall think fit."
The 9th section provides, that "in consideration of the expenses the said proprietors will be at, not only in cutting the said canals, erecting locks, and other works for opening the different falls of the  [**145]   said river, and in improving and extending the navigation thereof, but in maintaining and keeping the same in repair," &c., the president and directors shall have a right, "at all times forever," to demand and receive tolls at the nearest convenient place below the mouth of the south branch, and at or near Payne's falls, and at or above the Great Falls of the river, &c.
The 10th section declares, "that the river and the works to be erected thereon, when completed, shall forever thereafter be esteemed and taken to be navigable, as a public highway."
The 17th section is in these words, "that the tolls herein before allowed to be demanded and received at the nearest convenient place below the mouth of the south branch, are granted, and shall be paid on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot 

 [*89]  water, from the place on the north branch, &c., to and through the place which may be fixed on below the mouth of the south branch, for receipt of the tolls aforesaid; but if the said river is only made navigable as aforesaid, from Fort Cumberland [**146]  , to and through the said place below the mouth of the south branch, then only two-thirds of the said tolls shall be there received; that the tolls herein before allowed to be demanded, and received at or near Payne's falls, are granted, and shall be payable, on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the said place of collection near the mouth of the south branch, to and through Payne's falls aforesaid; that the tolls herein before allowed to be demanded and received at the Great Falls, are granted, and shall be payable on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, from Payne's falls to the Great Falls, by vessels drawing one foot water, and from the Great Falls to tide water; and shall, at on near the Great Falls, make or cut a canal, twenty-five feet wide, and four feet deep, with sufficient locks if necessary, each of eighty feet in length, sixteen feet in breadth, and capable of conveying vessels or rafts, drawing four feet water at the least; and shall [**147]  make, at or near the Little Falls, such canal, and locks if necessary, as will be sufficient and proper, to let vessels and rafts aforesaid into tide water, or render the said river navigable in the natural course."
And by the 18th section it is enacted, "that, in case the said company shall not begin the said work within one year after the company shall be formed, or if the navigation shall not be made and improved between the Great Falls and Cumberland, in the manner herein before mentioned, within three years after the said company shall be formed, then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation through and from 

 [*90]  the Great Falls to tide water as aforesaid, within ten years after the company shall be formed, then shall all the interest of the said company, and all preference in their favor, as to the navigation and tolls, through and from the Great Falls to tide water, be forfeited and cease."
It is very certain, that there is nothing in this charter, requiring of the company to make a continuous [**148]  canal, nor is it insisted upon here, that any such duty was imposed. All that is contended for, is, that no specific mode of improvement was designed by the legislatures from which the charter emanated, and that, the sphere of the operations of the company was not restricted to the bed of the river, and to the canals required at the Great and Little Falls; but that, authority to effect the proposed extension of the navigation, either by means of a continuous canal, or by improvements in the bed of the river, with such occasional canals, and at such places, as might be deemed proper, and necessary to the accomplishment of the end contemplated.
The right to improve the navigation in the bed of the river, was clearly comprehended in the powers delegated to the corporation; and that seems to have been considered as the mode of improvement, which would probably be pursued. Upon which hypothesis, it may be inferred, the obligation (to be found in the 17th section,) to make canals at the Great and Little Falls was imposed, where it was believed, that no safe and adequate improvements could be made in the bed of the river. But the question is not, what it was supposed,  [**149]  would be the mode of improvement resorted to, but whether the operations of the corporation were limited to the bed of the river, or whether it had a right, in the practical exertion of its powers, to adopt any other plan, as it became instructed by experience, and aided by the light of science.
It is laid down in some of the books, that in construing a statute, the title (being no part of it,) is not to be regarded, but we have high authority in this country for a different rule of construction--the opinions of the judges of the 

 [*91]  Supreme Court, as expressed in the United States vs. Fisher, 2 Cranch 358. It is no where pretended, that the title can control the express words of the enacting clauses. Without stopping, therefore, to inquire how far the title of a statute may be regarded in the construction of it, but yielding to the title in this case, all the influence that can be claimed for it, it will be found not sufficient to sustain the construction of the charter contended for by the counsel for the Rail Road Company.
It is described in the title, to be an act "for opening and extending the navigation of the river Potomac," and whatever might [**150]  be the ordinary understanding of the terms, "the navigation of the river Potomac," if considered independently and alone, the preamble which more fully discloses the object contemplated, and which is deemed to occupy so important an office in a statute, as to be called a key to its construction, explains the sense in which these terms were intended to be used, by the recital "that it may be necessary to cut canals, and erect locks and other works on both sides of the river," and clearly shows, that the navigation proposed to be opened and extended was not intended to be restricted to the channel or bed of the river; but that by "the navigation of the river Potomac," was meant a communication by the waters of the river, whether in the natural course, or by means of occasional canals, or both, as it might be found necessary--since the canals spoken of on both sides of the river, could only be necessary for the purposes of navigation out of the bed of the river; and are specified as works, that might become necessary, not for the purposes of canal navigation, as distinguished from the navigation of the river, but as necessary for opening and extending the navigation [**151]  of the river itself.
It was no doubt expected, that improvements in the bed of the river, would be resorted to; but it was also apprehended, if not foreseen, that the object could not be effected throughout, in that way; and canals were suggested, as means that might become necessary, to the accomplishment of the 

 [*92]  scheme of opening and extending the navigation of the river.
If then the construction of the charter rested upon the title and preamble alone, with no other guide to the intention of the makers, there would be no difficulty in ascertaining what that intention was, if there were ambiguous expressions in the enacting clauses, requiring the aid of the preamble to explain them. Not only, however, does the preamble sufficiently explain the sense, in which the words "the navigation of the river Potomac," were intended to be used; but the 4th section conferred the express and unlimited power, "to cut such canals, and erect such locks, and perform such other works," as should be judged necessary by the corporation, "for opening, improving, and extending the navigation of the river," from tide water to the highest practicable point on the north branch, and [**152]  "carrying on the same, from place to place, and from time to time, and upon such terms, and in such manner, as they should think fit."
Here then was distinctly granted the power to make canals, &c., for the purpose of "opening, improving, and extending the navigation of the river"--with no restriction, either as to the number, or kind of canals, locks, or other works, authorized to be made and performed, but such as might be prescribed by the judgment of the corporation, and the places, times, and manner of conducting the improvement were committed to its will, "for carrying on the same, from place to place, and from time to time, in such manner as they shall think fit." Thus manifestly showing, that to make the water of the river navigable by means of a canal, or canals, would be to make the river navigable, in the sense in which the words were used--and showing also, that the manner of effecting that object, was referred to the judgment and discretion of the corporation.
The makers of the charter very well knew, that there were various modes of improving the navigation of a river, and that canalling was one; but not being possessed of the means of determining [**153]  which of the different modes was 

 [*93]  best adapted to the situation and character of the Potomac, prudently forbore to describe any specific mode, but committed the whole subject to the judgment of the corporation, regardless of the mode, provided the object was accomplished.
Under the authority thus conferred, looking to the 4th section alone, or in connection with the preamble, can it be doubted, that the corporation might have adopted any plan of improvement, which in its judgment, was best adapted to the end proposed? The language of that section is as broad as it could well have been; without a word to restrict the operations of the corporation to the bed of the river, or to confine it to any particular mode of improvement. It might have resorted to improvements of the navigation in the bed of the river by sluices; or to dams and locks. Both of which kinds of improvements, are comprehended in the terms "such other works." Or it might have adopted the plan of opening the bed of the river, with occasional canals, under the authority to "cut canals, &c." and having the power to "cut such canals as it might judge necessary" for improving the navigation of the river, and [**154]  to carry on the improvement "from place to place, and from time to time, and is such manner as it should think fit," why might not a continuous canal have been made? If at one time, it had made a canal to a particular point, and afterwards had "thought fit" to make another, from that point to another point, joining the two together, in other words, elongating the first; and so on, from time to time, and from place to place, as it had "judged necessary" or "thought fit," throughout the whole geographical extent of the charter, it would have been a continuous canal.
And could such a work have been deemed to be unwarranted by the charter? It would have been an improvement within the letter of it: such as the corporation "judged necessary," and "carried on from place to place, and from time to time," in the "manner it thought fit." Or suppose the corporation, "judging it necessary, and thinking fit" to 

 [*94]  do so, had made a number of canals at different places, between the two termini of the proposed extension of the navigation; and afterwards from experience, "judging it necessary" to make other canals in the intermediate spaces, have "thought fit" to do so, and to unite them [**155]  with those that were before made, it would have been a continuous canal, and what would there have been opposed to the legality of it. The corporation had an unlimited discretion as to the number of canals, and the time, places and manner of making them; no number was specified, no time was limited, no place or places designated, nor manner directed, and having the right to make as many as it should "judge necessary," and at such places as it should "think fit," the having made some at some places, did not prevent its making others, at other places, and at other times; one place being as much within its discretion as another, and the making them from one to another of those that had been before made, being the making of them "from place to place:" and the joining them together being within the authority to make them in "such manner as it should think fit;" there being not one word denying the right to do so; and surely, there can be no difference in principle between the right to make a continuous canal, by constructing one piece at one time, and another at another time, and in different places, as the necessity for it is discovered, and in such a manner, as ultimately to unite [**156]  all the different parts, and to adopt at once, the plan of a continuous canal. They are in effect the same, each being referred to, and made dependent upon the judgment and will of the corporation, by the unlimited terms in which its powers are expressed.
It is not enough to say, that the state of knowledge on the subject of canals, was not such at the date of the charter, as to justify the supposition that a continuous canal was thought of at the time, and therefore as has been suggested, that the respective legislatures could not have intended to confer the power to make such a canal. The state of knowledge certainly was not then, what it is now; experience and the 

 [*95]  advance of science have shed much additional light upon the subject. But continuous canals were not unknown; they were in practical operation elsewhere, and had been long before, though the extent of their superiority over other modes of improving the navigation of rivers, was not probably well understood; which was perhaps the very reason why such a canal was not expressly designated; and may account for the unlimited discretion given by the charter; the makers and procurers of it, being unwilling for [**157]  want of better information than was then generally possessed, to confine the corporation to any specific mode of improvement. Nor can any inference against a grant of power to make a continuous canal, be drawn from the limited amount of the capital, provided by the second section, as is supposed, since the sixteenth section authorizes an indefinite extension of it, at the discretion of the corporation.
The 9th section contains nothing, adverse to the power to make a continuous canal. The right to demand and receive tolls was given, in consideration of the expenses the corporation would be at, "in cutting the said canals, &c." What said canals? Not at the Great or Little Falls, or any other particular falls, but the canals before authorized by the 4th section, without reference to any falls; such as the corporation "should judge necessary for opening and improving the navigation of the river," to be made and "carried on from place to place, and from time to time, and in such manner as it should think fit." That is one of the enumerated probable subjects of expense, in consideration of which the tolls were allowed; and the "erecting locks and other works, for opening [**158]  the different falls of the river," are others. Showing indeed that it was supposed, that different modes of improvement might be resorted to; but precluding neither, and excluding the idea, that the improvements were to be confined to the bed of the river; and entitling the corporation to tolls, on the accomplishment of the object, the extension and completion of the navigation of the 

 [*96]  river, in either of the known modes, or by a combination of any of them.
The 10th section, in making "the river, and the works to be erected thereon, when completed, a public highway," proceeds upon the same idea, that the navigation of the river, might be opened by a resort to different modes of improvement, and provides for the event of its being done in the bed, and by occasional works out of the river, by declaring both the river and such works, to be a public highway, which would equally cover the case, of its being done in either of the different modes. If it had been effected by improvements confined to the bed of the river, the river, under that provision, would have become a public highway, though there were no works on the out side of it; and so, if it had been accomplished [**159]  by a canal, altogether out of the river, with no improvements in the bed, that canal would have been a public highway. It could not have been intended, that to constitute the proposed channel of communication a public highway, there should be improvements both in the bed of the river, and upon the margin; and if either exclusively, would have been sufficient, so would the other. It was the channel of communication when completed, that was to be a public highway, no matter by which of the different modes.
But it is supposed, there is something in the 17th section, indicating the intention to have been, to restrict the corporation in its improvements, to the bed of the river, with the exception only of the points at the Great and Little Falls. There is no such express restriction to be found in that section. The most that could be gathered from it, is by a remote inference from general and ambiguous words construed alone; which would be a departure from the acknowledged rule, that in construing a statute, all the parts should be taken together.
The words of the 17th section which are relied upon, as proving the intention to have been to confine the improvements to the [**160]  bed of the river, are, "that the tolls, &c. are 

 [*97]  granted, and shall be paid on condition only, that the said Potomac Company shall make the river well capable to being navigated in dry seasons, by vessels drawing one foot water, "from Cumberland, to and through a place below the mouth of the south branch, from thence to and through Payne's Falls, from thence to the Great Falls, and from the Great Falls to tide water; the expressions, "shall make the river well capable of being navigated," being considered as meaning, according to the ordinary acceptation of the terms, that the river should be made navigable in its bed or natural course. But would that be the ordinary acceptation of the terms?
When we speak of navigating a river, without reference to the state or condition of it, ordinarily the navigating it, in its natural course is meant. But when the making a river navigable, (which was not so before,) is spoken of in general terms, without a designation of any particular mode of doing it, no particular mode is understood to be intended; the making it navigable in its natural course, no more than the making it navigable in any other way, there [**161]  being various modes of making a river navigable; and indeed, to say that such a river is made navigable, or may be made navigable by means of a canal, is a common mode of expression. It is therefore by no means clear, that the words of the 17th section, if standing alone, with nothing to explain the sense, in which they were used, should be understood, as requiring the river to be made navigable in its bed or natural course; but when taken in connection with the whole context, it seems to be very plain, that they were used in no such restricted sense; and that by requiring the river to be made navigable, was meant the making it navigable, in any of the known modes, in which the navigation of a river may be improved, and not exclusively in its bed or natural channel. It is stated in the preamble, that "it may be necessary to cut canals, and erect locks, and other works," for extending the navigation of Potomac river; which shows the understanding of the respective legislatures to have been, that the 

 [*98]  extension of the navigation might be effected by making canals.
By the 4th section, the corporation was invested with power "to cut such canals,  [**162]   and erect such locks, &c." as it should judge necessary, for opening, improving, and extending the navigation of the river, "from place to place, and in such manner as it should think fit;" and by the 11th section, authority was given to purchase or condemn lands, for the purpose of making such canals, &c. Here then is an express authority to open, improve, and extend the navigation of the river, by means of canals, locks, and other works; embracing the variety of modes, in which rivers are capable of being made navigable, and exclusively confined to neither.
With this explicit legislative exposition of the sense, in which the terms opening, improving, and extending, the navigation of the river, were used, fixing the meaning imparted to that language, by the makers of the charter, to have been, that to make a navigable canal fed by the waters of the Potomac, would be to make the river navigable; how can it be said, that the 17th section in requiring the river "to be made capable of being navigated," meant exclusively that the bed of the river should be made navigable? Besides, under the 4th section, the corporation had [**163]  an unlimited discretion, co-extensive with the geographical limits of the charter, to make canals, "from place to place," for opening, improving, and extending the navigation of the river; there was not a spot from one terminus to the other, to which the exercise of that discretion was confined, nor from which it was excluded. But it had an express right to make canals, wherever it should think fit, and "from place to place," along the whole route; which is utterly at war with the construction claimed to be put upon the 17th section, and both cannot stand. For it will be observed, that the terms of the 17th section, cover the entire space between Cumberland and tide water; and if the construction contended for, of that section, could be sustained, if by requiring that "the river 

 [*99]  should be made capable of being navigated," was meant that the bed of the river alone should be made navigable, to the exclusion of every other mode of improvement, except at the Great and Little Falls, where canals are required to be made, there would not be a spot left to the corporation throughout that whole distance, for the exercise of its discretionary power,  [**164]  to make such canals, &c. as it might judge necessary for opening, extending, and improving the navigation of the river," and "from place to place, as it should think fit"--which would be a virtual repeal of so much of the 4th section. It would be to alter and narrow down the positive and express enumeration of powers contained in that section, by mere implication from ambiguous expressions to be found in the 17th. But when the two sections are examined together, and the language of the 17th, taken in the sense in which the 4th shows it to have been used, construing one by the other, as must be done, the intention is plainly seen to have been, that the river should be made capable of being navigated in any of the modes authorized by the 4th section. By which construction both will stand, and full effect and operation be given to every word of each. But without the aid of the 4th section, the conclusion of the 17th clearly explains the sense in which the preceding expressions were used. The words are these, "and shall make at or near the Little Falls, such canal, and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid into tide water, [**165]  or render the said river navigable in the natural course," one or the other. Thus presenting the alternative of making the river navigable by a canal, or of making it navigable in its natural course--and distinctly indicating, that to make navigable canals fed by the water of the river, would be, to make the river navigable, in the sense of the charter. And the language of the 18th section is, that "in case the said company shall not complete the navigation, through and from the Great Falls to tide water as aforesaid, then, &c." What was here intended? Was it, that the river should 

 [*100]  be made navigable in its natural course, through, and over the Great Falls? Certainly not; but that the navigation of the river should be completed by means of a canal, at or near the Great Falls," as directed by the 17th section--otherwise the 18th section would have had the effect to abrogate so much of the 17th, as provides for the improvement of the navigation of the river at the Great Falls, by a canal out of the natural course. The same may be said of expressions contained in some of the supplements, which have been [**166]  called in aid of a different construction; such, for instance, as the proviso in the 6th section of the act of this State of 1790 ch. 35, relative to the application of the tolls, &c. to the improvement of the navigation of the branches of the river; "that no such application shall be made, until the main river from tide water, is cleared to Fort Cumberland." The main river, how cleared? certainly not exclusively in its bed or natural course; because the 17th section of the original charter, expressly provides for the clearing or improving of the navigation, by canals at the Great and Little Falls--and the 4th section as explicitly authorizes the doing so, from place to place throughout the whole distance from one terminus to the other. But cleared, in the sense of the original charter, that is, in either of the modes therein recognized, for the improvement and extension of the navigation; and in reference to which, those expressions must be understood as having been used. And so of similar expressions contained in other supplements, all of which must be construed with reference to the original act. Nor can any adverse argument be drawn from the preamble [**167]  to the act of 1802, ch. 84, reciting, that the object of the charter had been accomplished; notwithstanding it appears, that no continuous canal had, at that time, been made. It does not profess to state, that the corporation was restricted to any specific mode of accomplishing it, or in what way it had been done; and whether effected by means of a canal or canals, or by improvements in the bed of the river, the object would equally have been accomplished.

 [*101]  But the act of November session 1811, ch. 208, which gave to the corporation "the same power" to make canals on the branches of the river, that was given by the 4th section of the original act, to make canals on the river itself, plainly shows the understanding of the legislature of this State to have been, not that the corporation was confined in its improvements to the bed of the river, or that its power to make canals was limited to the points of the Great and Little Falls, as has been supposed in argument, but that it had a right to make them wherever it "should think fit," without restriction. Otherwise the grant of power, to make canals on the branches of the river, was perfectly [**168]  nugatory; since if the power given by the 4th section of the original act, was limited to the making canals at the Great and Little Falls, which are points of difficulty in the main river, "the same power" could not be exercised on the branches.
So that the legislature, in giving to the corporation by the act of 1811, "the same power" to make canals in relation to the branches, that was given by the 4th section of the original act, in relation to the river itself, must have intended the same power "as expressed in that section;" that is, the power to make canals, wherever it should be deemed necessary. Considering the power there expressed, to be the power given, according to the unrestricted sense of the language used; and not altered or diminished by the 17th section, so as to reduce it to the power of making canals at the Great and Little Falls only.
Taking the charter then altogether, and construing one part by another, if there had been a canal or canals made along the shore of the Potomac, fed by the waters of the river, and capable of being navigated in dry seasons, by vessels drawing one foot water, the river would have been made navigable [**169]  for vessels of that description, in the obvious sense, in which the language adopted by the respective legislatures was used; although not a drop of water was left to flow in the natural channel, not being required to be 

 [*102]  kept there. The great object in view was, the extension of a water communication from the tide water of the river Potomac, up to the highest practicable point on the north branch; and the means, such as might be considered by the corporation, necessary, and proper for the accomplishment of that object, whether by sluices, by dams and locks, or by canal navigation, which is apparent in the preamble, and is carried out into the enacting clauses. There is nothing in the charter, to restrict the operations of the corporation to the bed of the river, and thus to alter or narrow the powers, expressly enumerated and granted in the 4th section; but the whole matter was committed to its judgment; and so that the end was accomplished, it was immaterial, by which of the means that were subject to its discretion. If this is the true construction of the charter, the Valley of the Potomac, from tide water to the highest practicable point of navigation in [**170]  the north branch, was specifically appropriated, to the object contemplated,--and at the time the company was formed, or became incorporated, it acquired a vested right, (not the actual legal title to the land,) but a vested right to acquire land by purchase or condemnation, along the shores of the river, to be exerted wheresoever and whensoever it should be thought necessary and proper for the purposes of the charter. The object being an extension of the navigation of the river, by such means as should be found best suited to the purpose, corresponding powers were given to the corporation.
It is apparent throughout the charter, that it was supposed the bed of the river would, or might be occasionally adhered to; and it was as clearly intended, that any canal or canals, that it might be thought necessary and proper to resort to, should be made along the shore or shores of the river--thus plainly designating the Valley of the Potomac, for the route of the contemplated improvement, and dedicating the river and its shores to that object. This is manifested by the preamble reciting that, "the extension of the 

 [*103]  navigation of the Potomac river will [**171]  be of great public utility," and that "it may be necessary to cut canals, &c. on both sides of the river," which could only be done in connection with the river, by making the canals in the valley; by the 4th section, giving the power to make canals and any other improvements (in, or out of the bed of the river,) wherever it should be thought necessary and proper, for opening and extending the navigation, from tide water to the highest practicable point on the north branch. Thus by confining each end of the proposed extension of the navigation, to a point upon the river, one at tide water, and the other on the north branch, requiring, that in whatever way effected, it should begin and terminate upon the river; and pointing to the valley of the river, from one extremity to the other of the intended improvement, for the location of the canals authorized to be made; as the river itself, if any where resorted to for the purpose of being navigated in its natural course, could not in the nature of things, be used in connection with any canal or canals, not constructed upon its borders, or within the valley.
By the 9th section, which in consideration of the expense [**172]  of cutting canals, erecting locks, and other works "for "opening the different falls of the river," and of improving and extending the navigation thereof, vests such canals and works in the proprietors of stock and their heirs, and entitles the corporation "to demand and receive tolls at the nearest convenient place below the mouth of the south branch, and at or near Paynes' Falls, and at or above the great falls of the river Potomac for all commodities transported through either of these places;" thereby plainly indicating the valley of the river, for the construction of the canals and others works--works for opening the falls of the river, being evidently works to be erected in the valley of the river; and the places designated for the demand and receipt of tolls upon commodities passing through them, being points upon the river.

 [*104]  By the 10th section, declaring "that the said river, and the works to be erected thereon, when completed, shall forever thereafter, be esteemed, and taken to be navigable as a public highway." The works to be erected upon the river, and on the supposition, that the bed of the river would be occasionally used, the river [**173]  and the works to be one continual highway; which could not be, unless the works were to be constructed in the valley, so as to admit of a connected navigation with the river.
By the 12th section, giving authority to the corporation to acquire land by purchase or condemnation, at the different places before designated on the river, for the demand and receipt of tolls, for the purpose of erecting toll houses; the very purpose and object of which, would require them to be built on the line of the projected extension of the navigation; and the authorizing them to be built at certain points upon the river, indicating the valley as the route of that line, whether accomplished by improvements in the bed of the river, or by canals, &c. along the river, or by both; and by the 17th and 18th sections, the former requiring as a condition precedent to the right, to demand and receive tolls, that the river should be made navigable from the upper terminus, to and through a place below the mouth of the south branch, thence to and through Payne's Falls, thence to the Great Falls, (the several places on the river before designated for the receipt of tolls, and the erection of toll [**174]  houses,) and from the Great Falls to tide water, the other terminus; and requiring a canal to be made at the Great Falls, and also a canal at the Little Falls, or the river to be rendered navigable in the natural course; and the latter providing that, if not done within the respective periods therein prescribed, in the manner, and from and to the places specified in the 17th section, the corporation "should not be entitled to any benefit, privilege or advantage under the charter, and that "all its interests, &c." should "be forfeited and cease." Thus, by requiring the proposed improvement, (by whatever means accomplished,) to be 

 [*105]  made throughout its whole course, from one point upon the river to another, and requiring also canals to be made at specified points upon the river, (the Great and Little Falls,) distinctly confining it to the valley of the Potomac, and designating and appropriating that region, as its route. The 13th and 19th sections might also (if necessary,) be resorted to, for the purpose of showing the intention, that any canal or canals, which it might be thought necessary to make, should be constructed along the river [**175]  , and of course in the valley. And the supplemental act of this State, passed at the November session, 1785, speaking of the canals to be made at the Great and Little Falls, "supplied by the current of the river," and "communicating again with the river by locks, if necessary," and the further supplementary act, passed at the November session, 1811, giving to the corporation, the same powers to acquire and condemn lands, for the purpose of making canals, upon the branches of the river Potomac, as those conferred by the 4th, 11th, and 13th sections of the original act, for "making canals on that river," explicitly show, what was the understanding of the legislature of Maryland, in relation to the location of the contemplated works.
The valley of the Potomac being thus marked out for the sphere of the operations of the Potomac Company, without restriction to any particular mode of improvement, the corporation had a right to select in the first instance, either of the various modes of improving the navigation of the river, and if that failed, or proved insufficient, to resort to another, and so on, until the object of its incorporation was effected. It was [**176]  not put to an election between the different modes of improvement; nor concluded by any selection it might make, from having recourse to another, if that should fail. Such a construction of the charter would be too narrow for the great object in view. It cannot be believed, that the respective legislatures intended to limit the powers of the corporation, to any experiment it might make, in the prosecution of a work of such great and acknowledged public 

 [*106]  utility, the means of accomplishing which, were then but little understood in this country; and to deny to it, the right of completing it in any other way, if such experiment should fail; and thus to defeat the whole project, after heavy expenses had been incurred, in an honest, but unsuccessful effort to accomplish it, and at a time too, when a knowledge of the best and most effectual mode of doing it, could only have been acquired from lessons of experience; the scheme itself being but an experiment, and that a hazardous one to the undertakers.
It is believed, that no company could have been found, with such an understanding of the charter, and that there is nothing to be found in it, to sustain such a construction.  [**177]  But on the contrary, that the whole subject was committed to the judgment, discretion, and experience of the corporation; with power to execute the work, in such of the various modes, as might in its progress be found to be most expedient; and that this is fully proved by the express provisions of the 4th section, authorizing the corporation to "cut such canals, and erect such locks, and perform such other works, as it should judge necessary for opening, improving, and extending the navigation," "from place to place, and from time to time," "and in such manner as it should think fit." Thereby embracing all the different modes of improvement, and empowering the corporation, not merely to elect one particular mode, but to resort to any of the various modes, at such places, and at such times, as from experience, aided by the advance of science, as should be found necessary in the prosecution of the work, though begun on a different plan.
More than forty years having elapsed from the date of the charter of the Potomac Company, to the time of its surrender to the Chesapeake and Ohio Canal Company, it has been suggested, but not seriously pressed in argument, (as it [**178]  could not well have been) that, if the Potomac Company had originally the right to make a continuous canal, and to procure the condemnation of lands for that purpose, that 

 [*107]  right, as well as any other right to condemn lands, and make canals, which was never exercised, had become lost and forfeited by non-user for so long a period. A corporation may forfeit its charter by non-user or mis-user of its franchises; but it is well known, that such forfeiture can only be enforced by judicial proceedings instituted for that purpose, at the instance of the government, and that no cause of forfeiture can be taken advantage of, collaterally or incidentally; and the same principle applies, as well to a question of forfeiture of a particular franchise, as of the whole. Nor is it every non-user, that will furnish a sufficient ground for a judgment of forfeiture. Here, there is no pretence for the assertion of such a cause. The right to improve and extend the navigation of the river, was a franchise granted; the manner of doing it, a mode of exercising that franchise. And there being various alternative modes authorized by the charter, subject, each of them, to be changed [**179]  at the will of the corporation, no experimental trial of one of those modes, could work a forfeiture of the right to resort to either of the others, during the continuance of the charter. So long as the charter remained in force, there could be no forfeiture of the right to exert the franchise, in either of the authorized modes, which still remained to be tried; but all the rights and powers it conferred, continued in like manner, and so far from there being any ground for a forfeiture of the charter, by non-user, the very employment of some of the authorized modes of improvement, was a practical exercise of the franchise. But considering the right to make a canal or canals, and to condemn lands for that purpose, as a particular franchise, and not a means only of executing the general power to improve the navigation of the river; the not having resorted to that mode of improvement, did not amount to a cause of forfeiture on the ground of non-user, the power given to the corporation by the 4th section of the charter, to make canals," from place to place, and from time to time, and in such manner as it should think fit," being altogether indefinite both as to [**180]  place and time, 

 [*108]  and leaving it expressly and entirely in the discretion of the corporation, to make such canal or canals as it should judge necessary, wheresoever and whensoever it should think proper. And the fact, that other expedients were in the first instance resorted to, and for a long time persevered in, cannot be tortured into an abandonment, or any thing equivalent to a surrender of the right to make a canal or canals, whenever such expedients should be found inadequate to the purpose intended, and a canal or canals should be thought necessary to the accomplishment of the object.
If then, the powers originally imparted to the Potomac Company by the 4th section of the charter remained unimpaired, that corporation, under the authority "to make such canals as it should judge necessary from place to place, and from time to time," had a right, at any time it should think proper, during the continuance of its charter, to make a canal or canals along any, or all of the difficult passes upon the river, which form the subject of this litigation; or at any other place or places in the valley, and to purchase or condemn lands for that purpose. And its charter, [**181]  according to the decision of the Supreme Court in the case of the Trustees of Dartmouth College vs. Woodward, 4 Wheat. 518, being a contract between the states of Maryland, Virginia, and the Potomac Company, the obligation of which could not, without the assent of the corporation, be impaired by any act of the legislature of either of the States, nor the concurrent acts of both, consistently with the constitution of the United States, declaring that, no State shall pass any "law impairing the obligation of contracts;" the charter of the Rail Road Company, could not, without impairing the obligation of that contract, abolish, take away, or diminish the prior and paramount right of the Potomac Company, to select and appropriate by purchase or condemnation, any lands in the valley of the Potomac, for the route and site of a canal or canals, wherever it should think proper, along the borders of the river, either in terms, or by any construction of it, that would have authorized the Rail 

 [*109]  Road Company, without the assent of the Potomac Company, to occupy any of the difficult passes, or other places along the river, for the [**182]  route and site of the road, in such a manner, as either to exclude that company from a priority in the choice of a site or sites for the construction of the works authorized by its charter, or in any manner to restrict and circumscribe it, in the exercise of its prior right of election. But such an occupation by the Rail Road Company of the valley of the Potomac, would have been a violation of the vested corporate rights and privileges of the Potomac Company, and the charter of the Rail Road Company, in so far as it purports to be, or may be construed in derogation of those rights and privileges, is repugnant to the constitution of the United States, and void; there being no difference in principle, between a law, that in terms impairs the obligation of a contract, and one that produces the same effect, in the construction and practical execution of it. And the Canal Company, as the assignee of the Potomac Company, stands in its place, and is invested with the same prior and paramount right, that was originally granted, and vested in the Potomac Company; the 13th section of the charter of the Canal Company, authorizing a surrender by the Potomac  [**183]   Company of its charter, and a transfer to the Canal Company of all its property, rights, and privileges, &c. expressly providing, that "thereupon (that is upon such surrender and transfer, and acceptance by the Canal Company,) the charter of the Potomac Company shall be, and the same is hereby vacated and annulled, and all the rights and powers thereby granted to the Potomac Company shall be vested in the company hereby incorporated," of which it can no more be divested by any operation or construction of the rail road charter, than could the Potomac Company have been at the time of the surrender and transfer; but it took them, and holds them, in all their integrity and force, as they were held by the Potomac Company, unimpaired by the rail road charter. Which upon the hypothesis, that the rights and powers 

 [*110]  specified in the 4th section of the charter of the Potomac Company, had not been altered or restricted, nor lost by that company, is not understood as being denied.
But it is contended, that if the Potomac Company did originally possess the power to construct a continuous canal, it had lost that power, and had no right to [**184]  make any canal or canals, or to acquire any lands for that purpose, by purchase, agreement, or condemnation, at the time of the surrender of its charter, by the deed to the Canal Company of the 15th August, 1828, or at the date of the rail road charter; and therefore, that the Rail Road Company, either as concerns the Potomac Company, or the Canal Company, in its character of assignee of the Potomac Company, has a right according to the true construction of its charter, to occupy the ground in controversy for the route of the road. Which is asserted upon the assumption, either that the whole of the work authorized to be done, must be taken to have been accomplished, within the times limited by the 18th section of the charter, and extended by the several supplementary laws of Maryland to the 1st January, 1813, and of Virginia to the 1st January, 1820, and the power to have been thereby fully executed and at an end; or that, if it was not accomplished within the times limited, the franchise of the Potomac Company to make canals, and to acquire lands by condemnation for that purpose was forfeited, or had expired by lapse of time--and being gone from [**185]  the Potomac Company, could not, upon the surrender of its charter, vest in the Canal Company, which is very plausible, and would be a full answer to the claim of the Canal Company, in the character of assignee of the Potomac Company, if the whole of the work authorized to be done, was in fact accomplished: for then, it must be conceded, the power would have been fully executed and at an end, or if the Potomac Company was, by lapse of time alone, and without the intervention of judicial proceedings, divested of the power to make canals, and to condemn lands for that purpose.

 [*111]  But was there, or could there have been such a divestiture consistently with the principles applicable to questions relating to vested corporate rights? Or was the whole of the work in fact completed, that was authorized to be done, and the entire object of the charter accomplished?
The provisions relied upon in the 18th section, are, that "if the navigation shall not be made and improved between the Great Falls and Fort Cumberland, in the manner herein before mentioned, (that is for vessels drawing one foot water in dry seasons, as specified in the 17th section,) within [**186]  three years after the said company shall be formed, then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation through, and from the great falls, to tide water as aforesaid, within ten years after the said company shall be formed, then shall all the interest of the said company, and all preference in their favor, as to the navigation and tolls, at, through, and from the great falls, to tide water, be forfeited and cease."
And it is supposed, that the object of the charter was limited to the improvement of the navigation of the river, (whether by canals or otherwise,) only so far as to render it capable of being navigated in dry seasons, by vessels drawing one foot water; that the powers of the company were restricted to that degree of improvement, and that, whenever that object should be accomplished, the powers of the company would be spent--which is a proposition that must be maintained on the part of the Rail Road Company, to support the argument, that the powers of the Potomac Company had been exhausted, by a compliance with the condition contained [**187]  in the 18th section, by reference to the 17th section, which is, "that the river shall be made well capable of being navigated in dry seasons, by vessels draw-one foot water," within the times specified--otherwise supposing that object to have been effected, or condition complied with, within the time limited, there still remained in that company under the 4th section, a discretionary power 

 [*112]  to extend the improvement of the navigation by a canal or canals.
But is that the true construction of the charter? The extension of the navigation of the river Potomac, is asserted in the preamble, to be a work of great public utility, and the legislatures of Virginia and Maryland, are declared to be impressed with the importance of the object, and to be desirous of encouraging so useful an undertaking. The grand object, was a connection between the Atlantic States, and the country west of the Allegany mountains, to be effected in part, by an extension of the navigation of the Potomac river; a work not merely of local, but of great national importance, and one which, from its character, and supposed magnitude, drew into exertion the combined [**188]  action of the states of Maryland and Virginia. With such an object in view, is it to be supposed, that the legislatures of those states, intended to restrict the powers of the company they were incorporating, to the making the river navigable for vessels drawing one foot water only, an improvement so entirely inadequate to the end contemplated? Was that the encouragement proposed to be given to so useful an undertaking? It cannot be believed, and it is but to propound the question, to find the answer. There was no motive, no imaginable necessity for such a restriction, and if intended to be imposed, those legislatures must have been but slightly impressed with the importance of the object. Construing the 18th section alone, without regard to any other part of the charter, and construing it most rigidly, it might possibly be tortured into such a meaning. But though the Potomac Company was a private corporation, the charter was a public act, granted professedly pro bono publico, and should be construed in such a manner, as to attain, as far as possible, the end proposed. Pierce vs. Hopper, Strange 253, 258.  New River Company vs. Graves, 2 Vern. 431. [**189]  It would not be doing justice to the makers of the charter, in searching for their intentions, to look to the 18th section alone, for the narrowest possible construction of it; but that 

 [*113]  section must be construed together with the 4th, by which the general power of improvement was given, in order to arrive at the intention of the makers, and that both may stand, if consistently they can.
Looking then to the unqualified terms of the 4th section, that the president and directors shall have power, &c. "to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary, for opening, improving, and extending the navigation, and carrying on the same from place to place, and from time to time, and in such manner, as they shall think fit," it is clearly seen, that the right was expressly given to the corporation, by that section standing alone, to improve the navigation by any means, and to any extent in its power, that the river and the region through which it passes would admit of, without limitation either as to manner, extent or time. With that unrestricted power, it might have contented itself, with making the river navigable in its natural  [**190]   course, or by means of a canal, or canals, for vessels drawing one foot water; or if from experience, that was found to be inadequate to the demands of an increasing commerce, it might have deepened the bed of the river, or any canal or canals that had been made; or if none were originally made, it might have extended the improvement, by a resort to canals, from place to place, and from time to time, as in its judgment, occasion should require, which would seem to have been the very object of the power, to make canals "from place to place, and from time to time;" or it might in the first instance, have resorted to the temporary expedient of making the river navigable in its natural course, for the immediate public accommodation, by vessels of small draft, and at the same time, have adopted the more extended plan of improvement, by a canal or canals; all which it is believed must be conceded, looking to the 4th section alone--and it is not perceived, that there is any thing in the provisions of the 18th section, declaring, that if the river was not made navigable within the respective periods therein mentioned, for 

 [*114]  vessels drawing one foot water, between the Great  [**191]   Falls and Fort Cumberland, and from the Great Falls to tide water, the corporation should not be entitled to any benefit, privilege, or advantage under the act, and that all the interest, &c. of the corporation should be forfeited and cease, which so abridged the general power specified in the 4th section, to make such canals as the corporation should judge necessary, and at such places and times as it should think fit, as to reduce and limit it to the mere power to make the river navigable for vessels drawing one foot water, and to terminate whenever that should be effected, without any express words of restriction; instead of the more extended power to make such canals, as might be found better suited to the purposes of useful and efficient navigation; and at such times, as the progressive improvement of the country, and consequent increase of internal commerce and intercourse between the two great sections of the United States, which it was the object of the charter to bind more closely together in interest and affection, might indicate a necessity for further improvements, and aid in supplying the means of carrying them on. If that was the effect of the 18th section,  [**192]  it took away by implication, the whole of the discretionary and more beneficial power given by the 4th, and virtually annulled that section. Such a construction and effect, could only be given to the 18th section, by rejecting the 4th from consideration, in violation of the rule, that every statute should be so construed, that no clause, sentence or word, shall be superfluous, void, or insignificant, if it can be prevented; which is too well known and established, to render any reference to authorities in support of it, necessary.
Nor is there any necessity for such a rejection of the 4th section, in order to give effect to the 18th section, but both may well stand. The requiring that to be done, which the corporation had before the undoubted right and power to do, the making the river navigable for vessels drawing one foot water, was by no means inconsistent with, or repugnant to the power to make further and more important improvements. 

 [*115]  It was only saying, that, that at least should be done, leaving the corporation in possession of the power given it by the 4th section, to do as much more as it pleased, but not less: and accommodating the navigation afterwards, to [**193]  vessels of greater draft, (by whatever means effected,) would not have rendered it less "capable of being navigated by vessels drawing one foot water." If it could have done so by deepening the bed of the river, or canals already made, (which cannot be doubted,) it might also have done it by making additional canals, where none had been made, there being no restriction perceived in the law itself, of one mode more than the other, but the general power, extending equally and without distinction to all; and for us to make such a distinction, would be to legislate, and not to expound the law as it is given to us. The idea advanced, that to draw off the water from the river, after it was made navigable for vessels drawing one foot water, into a canal of greater depth, would have been a violation of the charter, rests upon the supposition, that the operations of the corporation, except at the Great and Little Falls, were restricted to the bed of the river, and that it was bound, to entitle it to tolls, to make and keep the river navigable in its natural course alone: which we have already endeavored to show, is not consistent with the proper construction of the charter, [**194]  but that the corporation had a right to make the river navigable, by means of a canal or canals, and to demand and receive tolls, although no water should be left to flow in the natural course.
Taking then the 4th and 18th sections together, it appears to be very plain, that the intention was not, by the provisions of the 18th section, to abridge the general power, explicitly given in the 4th, to improve the navigation to the utmost extent within the means of the corporation, and in any mode, and at any time, and to limit it to the right only to make the river navigable for vessels drawing one foot water; but merely to enjoin as a positive duty, under pain of forfeiture, and to insure an early use of the river, though 

 [*116]  upon a limited scale, that it should at least be made navigable to the extent therein required, within the respective times specified; leaving the general discretionary power of further improvement unimpaired, in regard both to extent and mode, and to be executed at any time; or in the language of the 4th section, "from time to time, as the corporation should think fit;" aided by the tolls permitted to be received, and by the 4th section expressly authorized [**195]  to be applied to that purpose, in these words, "and out of the money arising from the subscriptions, and the tolls, &c., to pay for the same, and to repair and keep in order the said canals, locks, and other works necessary thereto, and to defray all incidental charges." Which of itself, abundantly shows the intention that the canals, locks, and other works so authorized, might be made and carried on, after the river should be rendered navigable from Cumberland to tide water, for vessels drawing one foot water; since that was, by the 17th section, expressly made a condition precedent, to the right to demand or receive any tolls; the canals, locks, and other works, and incidental charges, that were intended "to be paid for, and defrayed," in part, "out of the money arising from the tolls," could only have been such, as should be made, and occur after tolls were authorized to be charged, which was not until after the river had been made navigable for vessels drawing one foot water. To say it was intended, that the whole of the work authorized should be first completed, and afterwards paid for, with all the incidental charges, out of such tolls as might possibly be received, without [**196]  a word in the law to that effect, would be a most strained construction. It could not have been known that a sufficient amount of tolls with the subscriptions, would ever be received to discharge the principal and interest of the sum expended upon the work, or that the corporation would be able to borrow money for carrying it on, about which, nothing is said in the charter. It is not therefore to be supposed, that any such speculation was indulged in; but the evident intention was, that the corporation 

 [*117]  might carry on the canals and other works from time to time, as it should be deemed necessary, and as its pecuniary means, arising from the subscriptions, and the receipt of the tolls, should enable it to do so.
The great and general ultimate object was the improvement of the navigation of the river, to the utmost, extent commensurate with the means of the corporation, as they should accrue, and to which it should at any time choose to push it; with no motive for limiting the degree of improvement, which could not have been too extensive for the purposes contemplated. The special, and more immediate object, was a partial improvement, not committed to the discretion [**197]  of the corporation; but required under pain of forfeiture, to be completed as a positive duty within the times specified, upon the execution of which alone, without doing any thing more, the corporation was to be entitled to demand and receive tolls, and to all the benefits, privileges and advantages, proffered by the charter. If the river was not made navigable for vessels drawing one foot water, the corporation was to have no "benefit, privilege or advantage, under the charter;" in other words, the charter was to be forfeited; but if that was done within the time limited, then the whole of the charter was to remain in full force; none of the franchises were to be forfeited, and the corporation was to have the benefit of demanding and receiving tolls; and the privilege, if it chose to exercise it, of making any further improvements in its power, according to any mode, and at any time it should think proper.
In this view of the subject, there was no inconsistency, or repugnancy, between the 4th and 18th section; no clause, sentence or word of either, was superfluous, void, or insignificant, but each section had its full effect and operation. Under the 18th section, the corporation [**198]  was bound to make the river navigable from Cumberland to tide water, for vessels drawing one foot water at least, within the times limited, and it might have contented itself, with the discharge of that duty; and under the 4th section, it was not bound, 

 [*118]  but had authority to make any further improvements, in any mode or plan, and at any time, it might have executed that authority. But according to the interpretation of the charter on the part of the Rail Road Company, the 4th section, in regard to all discretionary power of improvement, whether in relation to, extent, mode, or time, was abrogated by the 18th section, when both might well have stood together, which is not sanctioned by any acknowledged rule of construction.
It is said to be "inconceivable, that the legislature could have intended to give to the company the power, after the navigation was completed in one way according to the requisitions of the charter, to complete it in another." That might have been unnecessary legislation, if the charter is to be so understood, though not for that reason void. But it was not the meaning of the charter, that the [**199]  navigation would then be complete, when the river should be made navigable for vessels drawing one foot water only, as it clearly would not. The intention of the makers was, to secure to the public the benefit of a partial use of the river in a reasonable time, by requiring under pain of forfeiture, an improvement to that limited extent at least, within the prescribed periods; leaving it to the corporation, and clothing it with sufficient power and authority for that purpose, to make at any time, what further improvements it could; the more extensive and complete the better; but not exacting as a duty, to entitle it to tolls, what it might be unable to accomplish, and what subsequent events have proved, it was not able to effect.--Nor is there any thing very astonishing, or calculated to excite surprise in this. It was exactly what a wise and prudent legislature would have done, not to restrict the powers of the corporation, to the smallest possible improvement suited to any useful purpose, which would have been inconsistent with the great end in view; nor to jeopard the whole enterprize, by requiring the work to be completed under pain of forfeiture, on [**200]  the most approved plan, 

 [*119]  and to the utmost extent, within a period that might prove too limited, for the means and capacity of the corporation; nor to leave too much in the discretion of the corporation, by omitting to require any thing to be done within a time limited; which discretion might have been abused by the corporation to the prejudice of the public. And, borrowed as it would seem, from that charter, the same policy of securing to the public, the benefit of a limited use of the river for the purposes of navigation, during the progress of a more extended plan of improvement, has been carried into the charter of the Chesapeake and Ohio Canal Company; the 13th section of which has this provision, "and it shall be the duty of the said last mentioned company, (the Canal Company) until every section of the contemplated canal shall be completed, so as to be used and enjoyed for the purposes of navigation, to keep the corresponding part of the river, in a proper state for navigation, and in good order as the same now is; and in default thereof, they shall be in all things responsible, in the same manner, as the Potomac Company is now responsible."
The different [**201]  supplementary acts of this State and Virginia, to the charter of the Potomac Company, giving further time to that company, could only have been intended, (and cannot be otherwise construed,) to extend the time for completing that, which by the 18th section of the original act, was required to be done within the respective times therein limited. And that was, the making "the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from Cumberland to tide water," and nothing more. There was no limitation of time for the exertion of the powers given by the charter, except that prescribed by the 18th section; of necessity therefore, the supplements extending the time, had reference to that section, and to the particular work expressly required by it, to be done within the times limited.
The preamble of the act of this State, of 1802, ch. 84, reciting "that the object contemplated by the act of assembly 

 [*120]  for establishing a company for opening and extending the navigation of the river Potomac, has been accomplished," has been much relied on, to show the understanding of the legislature of Maryland to have been,  [**202]  that the object for which the Potomac Company was originally incorporated, was the making the river navigable in its natural course, for vessels drawing one foot water, except where canals were expressly required; no continuous canal having then been made. But, however that preamble might have been understood, taken alone, it is perfectly clear, when construed with the enacting clause, that, that was not the meaning of the legislature. The language of the enacting clause, immediately following the preamble is, "that the proprietors of shares in the said Potomac Company, their heirs and assigns, shall, and may demand, take, and receive tolls, at the several and respective places heretofore fixed by law, for the payment, and receipt thereof;" thus manifestly showing, that by the object stated in the preamble to have been accomplished, was merely meant, the performance of the condition imposed by the 17th section of the original act, precedent to the right to demand and receive tolls; that is, the making the river navigable for vessels drawing one foot water. And the particular object, required by the 18th section to be accomplished within the times specified, on pain [**203]  of forfeiture of all "benefit, privilege and advantage under the act;" with no reference whatever, to the general authority to make canals, &c. given by the 4th section, without any limitation of time. And the conclusion of the same enacting clause of the act of 1802, ch. 84, is in these words, "and that all and every of the rights, interests, privileges and immunities heretofore granted to, or vested in, the said proprietors and Potomac Company, are hereby confirmed and established to them, their heirs, &c." including the right and privilege to make a canal or canals, at any time; thus asserting and confirming the existence of that right, upon the assumption that the river had been made navigable for vessels drawing one foot water.

 [*121]  The charter was not limited in its duration, but expressly made perpetual by its terms, defeasible only, on failure by the corporation, to accomplish within the time limited, what was required to be done by the 18th section. Which was a condition subsequent engrafted upon it, in defeasance of a vested franchise, on breach of which, if in point of fact, there was any act of forfeiture committed by [**204]  the corporation, it might have been avoided, or forfeited, by scire facias, or a quo warranto, if the states that granted it, had chosen to take advantage of the non-performance of the condition. But not having done so, the franchise endured, notwithstanding the breach of the condition. And it is like the grant of an estate in land, defeasible on the non-performance of a condition subsequent, strictly speaking, as if an estate be granted expressly upon condition to be void on the happening of a certain event. In such case, it is perfectly clear, that the estate is not defeated by the mere happening of the event, but that the law permits it to continue, beyond the time when such contingency happens, unless the grantor or his heirs, take advantage of the breach of the condition by entry, &c. which cannot be done by a stranger. The proceeding by the government (the grantor,) for the breach of a condition subsequent, contained in a charter of incorporation, is by scire facias, or quo warranto; by an individual grantor (or his heirs,) of land, by entry.
A private corporation aggregate may be dissolved, by the death of all its members, or by the loss of an integral part,  [**205]  whereby it is rendered unable to do any corporate act, or to restore itself by a new election; or a corporation may be dissolved by a surrender to the government of its franchise, or by an act of the legislature repealing the act of incorporation, with the assent of the corporation; or it may be dissolved by a forfeiture of its charter, through abuse or neglect of its franchises, as for condition broken; there being a tacit condition in every such grant, that the corporation shall act up to the end of its institution. 

 [*122]  But such forfeiture must be judicially ascertained and declared, upon direct proceedings against the corporation for that purpose, in order that it might not be condemned unheard, for an imputed delinquency. Where there is no corporate body in existence, as where it has been dissolved by the loss of an integral part, or by surrender, &c. it would be not only useless, but absurd, to go into a court of law, to obtain a judgment of dissolution. But where there is an existing corporation capable of acting, but which has been guilty of an abuse, or neglect of its franchises, or the powers committed to its trust, amounting to a cause of forfeiture, such [**206]  cause of forfeiture can only be enforced by scire facias, or a quo warranto, issued at the instance of the government creating the corporation, and cannot be taken advantage of incidentally, or in any other way, or by any individual; since the government, with which alone the contract arising out of the charter is made, may waive the breach of any condition of that contract, and cannot be made to enforce the forfeiture, whether it will or no, and when it may have sufficient reason for not choosing to do so. Until it does, and that by judicial action, and not by legislation, no individual or other corporation, can treat it as a forfeited franchise. This is the doctrine taught by the authorities--among which are, The King vs. Amery, 2 Term. R. 515. The King vs. Pasmore, 3 Term. R. 199. Terrett vs. Taylor, 9 Cranch 43. Dartmouth College vs. Woodward, 4 Wheat. 518. Slee vs. Bloom, 5 Johns. Ch. 366. Slee v. Bloom, 19 Johns. 456. The Trustees of Vernon Society vs. Hill, 6 Cow. 23. McLaren vs. Pennington, 1 Paige Ch. 102, and Angell and Ames on  [**207]   Corporations.
The opinion of that distinguished jurist Judge Marshall, which was used in argument, would be entitled to, and would receive the highest consideration, if the question upon which it was given, arose in this cause. The substance of it is, that as the 11th section of the charter only authorized 

 [*123]  the condemnation of land, through which a canal was intended to pass, the condemnation must of course be before the canal was made; and therefore, that if after the canal had actually been made, and the making of it no longer rested in intention, there could be no condemnation of land on the sides of it; upon the principle asserted, that every law, which is to wrest from an individual his property without his consent, must be strictly construed. The utmost extent to which that opinion could be used, would be to show, that wherever the power of the company to make a canal, had been exerted, it was expended and gone, and could not again be exercised by a further condemnation of land, at the same place. But the question presented here, is not whether the power of the Potomac Company to make canals, had, by being exerted, been executed, and was at an [**208]  end; but whether that corporation retained the power to condemn land, and make canals, where none had before been made.
The penalty annexed to the breach of the condition in the first clause of the 18th section, was, that "the company should not be entitled to any benefit, privilege, or advantage under the act;" and in the last, that "all the interest, &c. of the company should be forfeited and cease." Now, to lose all benefit, privilege, and advantage; or for all interest to be forfeited and cease, would be to lose the charter itself. To take away every thing a charter gives, is to take away the charter--and to have taken away all benefit, privilege, advantage, and interest, would have been, to take away every thing that this charter gave. A forfeiture therefore of the entire charter, together with the particular franchise to condemn lands and make canals, was the penalty prescribed.
The analogy between this, and the case cited of Agnew vs. The Bank of Gettysburg, 2 H. & G. 478, is not perceived. That was the case of a bank charter, of limited duration, which had expired by its own limitation, and with it, the corporation ipso facto  [**209]   dissolved; it wholly ceased to exist for any purpose; no corporate powers remained, 

 [*124]  no originally vested franchise to be divested, for none were given beyond the term of duration; and no act was necessary to be done, in order to avoid the charter, or dissolve the corporation. But this was a corporation in full life, with vested franchises, unlimited in their duration, and liable only to be divested, through failure to exert them to a limited extent, within a specified time--and although by matter in pais, it might perhaps stricti juris, have had no right to exert them; yet none could have questioned the right, but the States that granted the franchises, and with which the contract was made, and which alone could have resumed them, for breach of the condition, on a judgment of seizure--until which was done, the corporation continuing to exist, the power to exert the franchises granted, remained.
Suppose for any cause, the rail road, or canal, should not be completed within the time prescribed by its charter; would it be contended that the charter was ipso facto forfeited, and the corporation dissolved without any judicial proceedings being instituted [**210]  for that purpose, and that the State could thereupon grant the same franchises to another company? It is however conceded, that at the date of the surrender and transfer to the Canal Company, this was a subsisting corporation, with corporate rights, and the power to exercise them; and it is said, it must now be taken, that the river had then been made navigable for vessels drawing one foot water. If so, every benefit, privilege, and advantage, under the act, remained; and among them, the privilege of condemning land, and making a canal or canals, at any time; which the corporation was free to exert, where and when, and how it "should think fit," within the designated region. The expressions, benefit, privilege, advantage and interest, used in the 18th section, applied as well to the right to demand and receive tolls, and to make the river navigable in the natural course, as to the right to condemn lands for a canal or canals. The terms equally embraced 

 [*125]  all the rights and powers of the corporation; if one was to be forfeited, all were to be forfeited; if a term was prescribed for the duration of one, the same term was prescribed for the duration [**211]  of each. There was no distinction, no exception of one, more than another from the operation of that section. And evidence of their understanding of the 18th section, is furnished by the acts of the legislatures that granted the charter; which show, that they did not consider the franchise as one that was to expire by its own limitation, but viewed and treated it, as a question of forfeiture altogether. Not as a grant of the right or franchise for a limited time, to condemn lands and make canals, but as a grant of the franchise for an indefinite time, subject to a defeasance, and that the object of the different acts passed for the extension of the time limited by the 18th section, was to guard the corporation against the liability to a forfeiture for a breach of the condition.
The 2d section of the act of Virginia, passed in November, 1793, for extending the time limited by the 18th section of the charter, has this provision, "and that no privilege or advantage granted by law, shall be forfeited or lost, in case the navigation aforesaid shall be finished within the time hereby limited." The 3d section of the act of this State, passed at the November session, [**212]  1794, ch. 29, for the like purpose, has the same provision, and the provision of the 4th section of the act of this State, passed at the November session, 1797, ch. 93, is in the same words.
The act of 1814 of this State, ch. 75, giving to the company the power to acquire land, by purchase, compromise, or exchange only, which is relied on to show, that the power before granted to acquire land for constructing canals, was considered by the legislature as gone, and extinguished, does not seem to have been correctly attended to. It declares that the company "shall be, and they are hereby authorized and empowered, to use and dispose of the land and water rights, now held by the said company, or which they may hereafter acquire in this State, in the erection of 

 [*126]  mills," &c., "and shall be authorized and empowered to acquire lands and other property, contiguous to the land, canals, and locks on said river, by purchase, compromise, or exchange, &c. No authority had before been given to the corporation to acquire land in any way, except for the purpose of constructing canals and building toll houses; and the authority given by this last act to acquire land,  [**213]  was not for the purpose either of constructing canals, or building toll houses; but it was an authority to acquire lands contiguous to the canals and locks on the river, for the purposes, as it would seem, of the mills, or other water works, which the same act authorized the corporation to erect. It was therefore an entirely new power, not given, because the power before imparted had departed from the corporation; but for a purpose, foreign from that, for which the power to condemn land had before been given. It was therefore a necessary power, for the purpose for which it was conferred, though the former power to acquire land by purchase or condemnation remained in full force; since under that former power, no lands could have been condemned contiguous to canals already made, for the purposes of mills or other water works; and it affords no inference that the former power, was considered as having ceased. But as it speaks of water rights thereafter to be acquired, it would seem to imply, that the right to make canals still existed, which was a means of acquiring water rights, and that, after the expiration of the time last limited by the acts of this State.
On the 29th of [**214]  January, 1821, the legislature of Virginia passed an act authorizing the appointment of commissioners, to ascertain among other things, whether the terms and conditions of the charter had been complied with; and if not, to advise and consult with commissioners to be appointed on the part of this State, as to the measures best to be recommended to, and conjointly adopted by the two States, either for giving aid to the company in the further prosecution of the work, or for the institution of a prosecution 

 [*127]  against it, for the purpose of annulling and vacating the charter--and in the course of the same session, the legislature of Maryland passed a resolution for the appointment of commissioners to make the same joint inquiry; substituting only, for the measure of instituting a prosecution, the alternative of adopting measures for the more effectual improvement of the navigation by some other means. Thus we have the sense of the States that granted the charter, clearly expressed by the concurrent acts of their respective legislatures, after the expiration of the last extension of the time limited by the 18th section, that if the condition [**215]  (calling it and treating it as a condition, and not a limitation,) had not been complied with, not that the franchises had therefore expired, and that the corporation was dissolved, but that it continued to exist, in the possession of the corporate powers originally given to it, and that until it was dissolved by judicial action, it might, with sufficient pecuniary aid, go on to do the work originally authorized; with the opinion of the legislature of Virginia plainly indicated, that the breach of the condition could only be taken advantage of by direct proceedings at law, instituted for that purpose, and the unwillingness of Maryland to adopt so harsh a measure.
And finally, the two States upon whose pleasure alone, the continuance of the corporation, and of its franchises depended, (both of them interested as stockholders, and Maryland largely as a creditor,) and which had a right to waive the breach, by any non-feasance or mal-feasance of any implied or expressed condition contained in the charter, having virtually waived the breach of the condition by the corporation in failing to exert its franchises, by the act to incorporate the Canal  [**216]   Company conclusively remitted to the Potomac Company any abuse, or neglect of its franchises, or any of them; and recognized and treated it as a subsisting corporation, in the full possession of all its original powers, in requiring its assent to the charter of the Canal Company, in 

 [*128]  order to give it validity; and by declaring in the 13th section of that charter, that upon the surrender and transfer by the Potomac Company to the Canal Company of its charter, all the rights and powers thereby granted to the Potomac Company, should be vested in the Canal Company, which included the right and power to condemn land for canals. Not the rights and powers, then held by the Potomac Company, but all that had been granted, and which must have been considered as then subsisting, otherwise they could not so pass and vest. Which shows the intention and meaning of the 18th section; and it is not denied, (as it cannot be,) that in construing a statute, a subsequent law upon the same subject, may be resorted to, for the purpose of ascertaining the intention, which when discovered, must prevail; all statutes in pari materia being [**217]  construed as one law. But whether this view of the subject is correct or not, and independent of any corporate rights and privileges derived from the Potomac Company, a priority of right in the choice of a route for the canal in the valley of the Potomac, is claimed on the part of the Canal Company, by the force and effect of its own charter, viewed as a compact between the States of Virginia and Maryland, and the Congress of the United States, and between those sovereign parties and the Potomac Company. Which leads to an inquiry into the character and effect of that instrument.
A State may contract with an individual; and it is equally certain, that two or more of the States, may enter into a compact or agreement inter se; and the only question upon that subject is, whether that has been done in this case--which involves the further question, (if a question it can be at this day,) whether a State can contract by an act of its legislature. That it can so contract with an individual, is settled beyond all controversy by the decisions of the Supreme Court, in Fletcher vs. Peck, 6 Cranch 87. The State of New Jersey vs. Wilson, 7 Cranch 164. [**218]  Terrett vs. Taylor, 9 Cranch 43. The Town of Pawlet vs. Clark and others, 9 Cranch 292; and Dartmouth College vs.

 [*129]  Woodward, 4 Wheat. 518; and that two or more of the States may contract in that form inter se, is settled by the same court in Green vs. Biddle, 8 Wheat. 1, which was the case of a law of Virginia, relating to the separation of the district of Kentucky from Virginia, and the erecting that district into a separate State, containing this clause, "that all private rights, and interests of lands within the said district, (Kentucky) derived from the laws of Virginia prior to such a separation, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State." Which being afterwards ratified by a convention of the people of Kentucky, and made an article of the constitution of that State, it was held to be a compact between those States, the obligation of which, Kentucky could pass no law to impair. How then does this case stand? Virginia, impressed with the importance of that subject, but knowing [**219]  that the object could not be accomplished by any act of its own legislature alone, nor by its sole authority, passed the act for the incorporation of the Canal Company, in January, 1824, requiring in terms, the assent of the legislature of Maryland, of the Congress of the United States, and of the Potomac Company, to its provisions, to give it effect and validity so far as concerns the eastern section of it, to which only, this suit relates. Maryland, treating it as a proposal offered for acceptance, assent, and confirmation, by an act of its legislature, passed on the 31st January, 1825, declared it to be "accepted, assented to, and confirmed." The Congress of the United States, by the act of the 3d March, 1825, declared it to be "ratified and confirmed," and on the 16th May, 1825, the Potomac Company, by a corporate act, signified and declared its "assent" to it, and to all its provisions.
There are no technical words necessary to constitute a compact, or contract, which are convertible terms; and neither need be used, and seldom is, in the instrument creating it. It is a mutual consent of the minds of the parties 

 [*130]  concerned,  [**220]  respecting some property or right, that is the object of the stipulation, or something that is to be done or forborne; "a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised or stipulated by the other," and any words manifesting that congregatio mentium, are sufficient to constitute a contract. Here we have the very language of contract, in the terms "accept," and "assent to." It is the language used by the parties to a compact of the most solemn and imposing character. The 7th article of the constitution of the United States, provides, that "the ratification of the conventions of nine States, shall be sufficient for the establishment of the constitution between the States so ratifying the same; and the language used by the conventions in their acts of ratification, is, "assent to and ratify," "assent to, ratify, and adopt," "agree to, ratify, and confirm," "approve, assent to, ratify and confirm," and the amendments proposed by Congress in 1789, were ratified by acts of the legislatures of the respective States, using the language, "ratify," "assent to,  [**221]  and ratify," "confirm and ratify," "assent to, ratify, and confirm," &c.
The constitution to which validity and effect, to which vitality was imparted, by those expressions of assent, became not a mere confederacy, or league, but a compact, in the language of the constitution, "between the States so ratifying the same," as soon as it was so ratified by the number required by the 7th article; by which, they were reciprocally bound, that there should be such a government of the Union for the benefit of the whole, with the assent of the people, and proceeding from them, as that, provided by the constitution. And when the federal government was organized and brought into existence, which is a creature of the constitution, possessed of the rights and powers it confers, and subject to the duties it prescribes and enjoins, it became also a compact between the parties to it, and the federal government.

 [*131]  In this case, there were mutual interests in the subject matter of the reciprocal acts of the two States and of Congress, with an acknowledged authority to contract; and the legislature of neither of the States, could have performed by any separate act of legislation, what [**222]  was proposed to be accomplished by the concurrent acts of all. One terminus of the canal is proposed to be in the District of Columbia, and the other in the State of Maryland; and Virginia could not of its own authority, by any separate act, authorize a canal to be made through Maryland, nor could Maryland authorize a canal to be made through Virginia, without its consent, nor could either or both of them, authorize one to be made in the District of Columbia, without the consent of Congress; Maryland and Virginia were interested in the Potomac Company; both, as stockholders, and Maryland largely as creditor, and both of them, and also the United States were interested in the river, and the works erected by the Potomac Company, as a public highway. Neither of the States therefore, without the consent of the other, nor both of them without the consent of Congress, could have repealed the charter of that company, nor have received, or authorized the surrender of it, and of the works, to another company. Neither State could have authorized the condemnation of land, nor the imposition and collection of tolls within the territory [**223]  of the other, without the consent of that other; nor could either or both of them, have authorized either to be done within the District of Columbia without the consent of Congress. The 14th section, declares "that the said canal, and the works to be erected thereon in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway." Not, that the part in Virginia, shall be a highway there, nor the part in Maryland, a highway in Maryland; but the entire canal shall be one continued connected highway, through the respective territories of the three sovereigns; and neither of the two States could have made a public highway through the territory of the other, without the consent 

 [*132]  of the other; nor neither or both of them, through the District of Columbia, without the consent of Congress. Yet all this, wearing the features of a conventional arrangement, has been done by the reciprocal and concurrent acts of the three sovereigns; with other stipulations and reservations of rights, impressing upon those acts the qualities of a compact.
The 9th section declares, that the canal and other works "shall [**224]  be forever exempt from the payment of any tax, imposition, or assessment whatsoever." Now ordinarily, Congress and each State has a right to impose taxes within its own jurisdiction, and neither has the power to deny it to the other. What then, is that renunciation of the right to impose taxes, but a stipulation or agreement between them, that neither will exercise that right? And the 14th section provides, that no other toll or tax for the use of the canal and works, except those authorized by that act, "shall at any time be imposed, but by consent of the said States, and of the United States." Is not that an agreement or stipulation, that neither will authorize the imposition of any further toll or tax, even within its own territory for the use of the canal, without the consent of the others? There is a stipulation in the first section, that Congress and each of the States shall appoint commissioners for taking subscriptions to the stock, and carrying the act into operation. Not to act separately, as if it were a separate law of Congress, and of each of the States; but to act conjointly for carrying it into effect, as the united act of all--and the stipulation for [**225]  the appointment of commissioners, could only have been an agreement between themselves, as the corporation was not then in existence, and was only to be brought into existence by the agency of their joint commissioners, as a creature of their joint creation. In the 20th section, there is a provision for reserving to each State, the right to charter another company, in case the western section of the canal, should not be completed within the time limited. And in the 21st section, there is a reservation to each of the States, of the 

 [*133]  right to make lateral canals, to be fed by the waters of the Potomac; and to the government of the United States, to extend the principal canal through the District of Columbia, with a provision that before the act should take effect, Congress should authorize the two States, or either of them, to take and continue a canal from any point of the principal canal, through the District of Columbia, &c. (which was done by Congress in the act of March, 1825, and the unnecessary explanatory section of the act of 23d May, 1828.) There is also in the 21st section the further provision, "that in taking or extending such lateral canal [**226]  or canals through the District of Columbia, by either of the States, no impediment or injury be done to the navigation of the Chesapeake and Ohio Canal." And are not those reservations and provisions, mutual stipulations or agreements, that each shall have and enjoy the rights and powers reserved and conceded, and that neither of the States, shall make any lateral canal or canals to the prejudice of the navigation of the principal canal? We have moreover the understanding of the parties themselves, of the character of this act of incorporation.
The 1st section of the act of December session, 1826, which is an act for the amendment of the act of incorporation, after reciting, that it had received the assent of Maryland, Congress, and the Potomac Company, declares that it shall be amended, &c. "on condition that this act receive in like manner, the assent of the necessary parties thereto." And the 4th section, "that this act shall commence and be in force, as soon as it shall have received the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company," showing them to be the parties alluded to as the necessary [**227]  parties. It did receive their assent, and became a part of the charter. It does not in terms call that act, or the original act, a contract, but it uses equivalent expressions, "receive in like manner, the assent of the necessary parties;" parties to what? not to that act, as a separate, and independent act of 

 [*134]  the legislature of Maryland: that could not be; neither of them could be a party to it, as a mere law of Maryland. It was only in the character of a compact, that they could become parties to it; and being parties to the original charter, which that act proposed to amend, they were necessary parties to that act, and the assent to that act, by all the parties named, was a recognition of the necessity for their concurrence as parties to it; in order to give it the effect to alter, or in any manner modify the original act--and the same may be said of the act of the December session, 1827.
There were mutual interests, advantages, and rights, reciprocally conceded and compensated, by the concurrent acts of Virginia, Maryland, and Congress, constituting the original charter, which by any fair test that can be applied, is believed to be a compact [**228]  between the two States and Congress, a reciprocal pledge of public faith, that there should be a corporation, the creature of that compact; created, not merely for its own benefit and advantage, but to effect a great national object, in which all were concerned, for the common benefit and advantage of all, and for the public good; and that whenever the corporation should be brought into existence, it should be invested with all the privileges, rights and powers, provided by the charter, for the accomplishment of the end contemplated, without any diminution or alteration of the franchises as therein expressed. There is no acknowledged necessity, for any stronger, or more technical terms, to constitute a compact between two or more states, than between a state and an individual; and the terms here used, would be quite sufficient to constitute a contract between a state and an individual. Indeed this very charter being a grant, is an implied contract with the corporation, not to re-assert the rights it has granted.
It has been intimated, rather than seriously argued, that under the provision of the constitution, "that no state shall, without the consent of Congress, enter into [**229]  any agreement or compact with any other state," this charter is inoperative 

 [*135]  as a compact between the two states, for want of the constitutional assent of Congress.
The assent of Congress to the provisions of the charter, is required by the 23d section, to be given "as the legislature of the District of Columbia." The consent of Congress could not have been given as the legislature of the District of Columbia. It has no capacity to act as the local legislature of that, or any other particular district, and can only act in the capacity of the legislature of the Union, (in which capacity its assent was given to this charter,) and no state, after having entered into a solemn agreement with another, is competent to renounce the constitutional assent of Congress to it, as the legislature of the Union.
There is no particular form, in which the assent of Congress is required to be given, and it is not material in what form it is given, provided it is done. Here is an act, proposing to create a corporation, with all the necessary rights and faculties for making a canal, to terminate in the District of Columbia, to which the assent of Congress [**230]  , a party in interest is required to give it validity, and Congress ratifies and confirms it, so far as may be necessary, for enabling any company formed by the authority of that act of incorporation, to carry into effect its provisions, in the District of Columbia; and is not an assent to the provisions of the act being carried into effect in the District of Columbia, by a company to be formed under the authority of the act, an acknowledgment of its authority, an assent to the act itself, and to the creation of a company, with all the powers proposed to be given to that company, for executing its provisions? The act does not provide for the making a separate canal in the District of Columbia, nor did Congress intend so to restrict the company; but to authorize an extension into the district of the canal indicated by the provisions of the act, and by the means the act prescribes; and the assent to the extension of the canal into the district, was a recognition of, and an assent to the whole scheme of the canal itself, and of the provisions for making it. And thus Congress, 

 [*136]  by the very act of becoming a party to the whole scheme of [**231]  the canal, in acceding to it, to the extent of its territorial interest, gave to the compact or agreement, such an assent as was sufficient to gratify the constitution. But it is unnecessary to dwell longer on this part of the case. In Green vs. Biddle it was decided, that no particular form, for the assent of Congress to a compact between states, was required, and it was held that the consent of Congress in terms, "to the erecting the district of Kentucky into a separate and independent state, and its reception into the Union," upon a certain day, was a sufficient consent under the constitution, to the compact in detail between Virginia and Kentucky, for that purpose; though no part of the compact, except that which related to the erection of Kentucky into a separate state, was adverted to in the act giving the consent of Congress; and the act of Congress of 23d May, 1828, assenting to the acts of this State, for changing the route of canal above Cumberland, and substituting railways, &c. for a canal through the Alleghany mountains, declares "that the assent already given by the United States to the charter of the Chesapeake  [**232]   and Ohio Canal Company, shall not be impaired by any such change, &c." which plainly shows that Congress understood the assent before given, to extend to the whole charter a compact, and all its provisions--otherwise, the provision that a change in the route of the canal above Cumberland, should not impair that assent, would have been unnecessary, as no change of the route above Cumberland, could in any way affect that assent, unless it extended to that part of the route. Besides, it speaks of the assent before given to the charter, in terms which embraces all its provisions.
The Potomac Company, which was also the creature of a compact between this State and the State of Virginia, was at the time the original act was passed for incorporating the Canal Company, a subsisting corporation, and its charter could not have been repealed or annulled, nor any of its corporate rights diminished or infringed, without its concurrence. 

 [*137]  Its assent therefore, to the scheme of a new corporation in its place being necessary, it was expressly made a condition precedent to the consummation of the canal charter, and to the vesting of any rights under it; to [**233]  be signified by its corporate act registered among the archives of the two States, and of the United States, which was regularly done.
Upon its assent so given in consideration of a stipulated equivalent, the canal charter was to take effect, and not otherwise. It was not to be evidenced, as has been supposed, by a surrender of its charter, and transfer of its property and rights to the Canal Company; which was only authorized to be done by the 13th section, after its assent had been declared, as required by the 1st section, and after the Canal Company had been formed; and could not have been done before the company was formed, and in a condition to receive such surrender--and it was only after the assent that the company could be formed, as without it, there would have been no authority for its formation, no act of incorporation.
What the Potomac Company was required to yield, was its charter, with all its rights and property held under it--and the proposed equivalent, was the benefit to that company, of the privilege of stock in another company, possessed of all the rights and advantages proposed to be granted to the Canal Company, being paid for in [**234]  the debts of the Potomac Company, and in certificates of its stock at the par or nominal value.
It was plainly a proposal made to the Potomac Company, for its acceptance, in the form of legislative enactments, to this effect; if you will consent to the provisions of this act, for incorporating the Chesapeake and Ohio Canal Company in your place, you shall, on the formation of that company, be authorized to surrender and transfer to it, your charter, with all your corporate rights and privileges; as an equivalent for which, and in consideration of your assent, the Chesapeake and Ohio Canal Company shall be invested 

 [*138]  with all the rights and privileges that the provisions of the act impart, and subscriptions for stock in that company shall be payable in claims against you, and in certificates of your stock at par; such a transaction between individuals, in relation to any matter about which they were competent to contract, would clearly be a contract, the obligation of which the State could pass no law to impair. And it is conceded that, that legislative proposal, agreed to by the solemn corporate act of the Potomac Company, amounted to a contract between [**235]  the two States and Congress on one side, and the Potomac Company on the other, to the same extent, and of the same obligatory force and effect, as the compact of Congress and the two States inter se. Not awaiting the formation of the Canal Company, nor the surrender and transfer to it by the Potomac Company, of its charter and property; but eo instanti that the assent of the Potomac Company was given, it became a compact, and by virtue and force of that very compact, a law; the concurrence of the parties to the compact being a condition precedent to its becoming a law, which compact and law, it was not competent to the Potomac Company afterwards to defeat or annul, nor by any act to rescind its assent.
And it is a mistake to suppose, that its becoming a compact, depended upon the coming into existence of the Canal Company, and its acceptance of the offered terms as a necessary party. The coming into existence of the Canal Company, depended upon the prior formation of the compact, of which it was to be the creature, and without which it could have had no existence. When the Canal Company did come into existence, and accept the [**236]  charter, in the only way it could, by the very act of coming into existence, the subscriptions to the stock, the charter became a grant, from which, there then resulted a contract between the two States and Congress, and the Canal Company; but distinct from the compacts of the two States and Congress inter se, and between them and the Potomac Company. They were contracts, that there should 

 [*139]  be such a corporation, with all the rights and privileges provided by the charter. The contract of the two States and Congress with the Canal Company is, that they will not re-assert the rights they have granted.
Upon the faith of the canal charter, the Potomac Company surrendered and transferred its charter, and all the rights and property it enjoyed and held under it, in consideration of a stipulated equivalent; the value of which depends upon the inviolate conservation of the chartered rights of the Canal Company. For of what value would the privilege of paying for stock of the Canal Company, in the debts, and certificates of stock of the Potomac Company be, if the stock of the Canal Company should be made worthless by an act of the legislature?  [**237]  and would not the faith of the States be violated by impairing that equivalent in any way, without the consent of the Potomac Company?
But if there is any ambiguity in the original act for incorporating the Canal Company, or doubt arising upon that act alone, as to the intention of the respective legislatures, the understanding of Congress, and of the two States, that it was a compact, to which they and the Potomac Company were parties, and could not therefore be in any manner altered or modified, without the consent of that company as a necessary party to such alteration; and that they acted upon that understanding, is demonstrated by the act of this State, of the December session, 1826, assented to by Virginia and by Congress, for amending the charter; which requires as a condition precedent to its becoming a law, that it shall receive the assent of Virginia, Congress, and the Potomac Company, as necessary parties thereto, in like manner as they had assented to the original act--and also by the act of the December session, 1827, for further amending the charter, which required and received the same assent. And these acts are particularly [**238]  worthy of notice, as showing the presence of a contract to which the Potomac Company was a party in interest; since, if it had no interest in the conservation of the canal charter, and of the rights 

 [*140]  and privileges it professes to confer, there was no necessity for requiring its assent to any change in the route of the canal. But the recital in the preamble, that "it is represented to this general assembly, that the Potomac Company are willing and desirous that a charter shall be granted to a new company, upon the terms and conditions hereinafter expressed, and that the charter of the present company shall cease and determine," furnishes evidence of a conventional arrangement with that company, and would seem to be conclusive of the question of contract.
As to the sphere of the operations of the proposed corporation, looking to the various documents accompanying the answer, there would be no difficulty in ascertaining through what region it was intended the canal should pass; but it is unnecessary to resort to those documents generally, or to inquire how far recourse may be had to them for that, or any other purpose; the charter itself sufficiently and clearly designates [**239]  the valley of the Potomac for the intended route of the canal.
The preamble states the object to be the construction of "a navigable canal from the tide water of the river Potomac in the District of Columbia, to the mouth of Savage Creek," &c. "to be fed through its course on the east side of the mountain, by the river Potomac and the streams which empty therein." Here then, is a canal to begin, and end upon the river, and to be fed throughout its course, by the waters of the river, from one terminus to the other. Could there have been a clearer manifestation of the intention of the makers, that the canal should pursue the course of the river? The right to make a canal, necessarily drawing to it, (if there was nothing more to indicate the valley as the intended route,) the right to make it where it could be supplied with the water, the vital stream by which it was intended to be fed.
The two termini being thus fixed, the laws of nature point to the course of the river, as the route of the canal.--The recital too in the preamble, that the Potomac Company 

 [*141]  were willing and desirous that a charter should be granted to a new company [**240]  , upon the terms and conditions thereafter expressed, shows it was intended as a substitution of the Canal Company for the Potomac Company, and to take its place in all things, and it has been seen, that the operations of the Potomac Company were confined to the valley of the Potomac.
The enacting clauses are in perfect accordance with the preamble, and provide for carrying it into effect. The 4th section authorizes and empowers the corporation to cut canals, erect dams, open feeders, construct locks, and perform such other works, as it shall judge necessary or expedient for completing the canal before mentioned and described; that is, the canal described in the preamble, to be made from tide water to the mouth of Savage Creek, and fed by the Potomac.
The 15th section, after reciting that, "it is necessary for the making of the said canal, &c. that a provision should be made for condemning a quantity of land for the purpose," authorizes the acquisition by condemnation, of any land through which the said canal is intended to pass, (still referring to the canal described in the preamble,) and declares, that on the payment of the valuation [**241]  of the land so condemned, the title shall vest in the corporation; and the 19th section authorizes the corporation, during the pendency of any proceedings, to subject any land to the purposes of the act, to enter upon the land and go on with the work. The 20th section declares, "that the eastern section of the canal shall begin at the District of Columbia on tide water, and terminate at or near the bank of Savage river or creek, which enters into the north branch of the Potomac, at the base of the Alleghany mountains," and the 13th provides, for the establishing a rate of tolls, on the different parts of the canal, as they shall be finished, "until the eastern section shall be finished, up to the mouth of Savage river or creek." The 11th directs the appropriation of the surplus tolls, "to the accommodation of the inhabitants of the shores 

 [*142]  of the river Potomac, by affording to them, in the best practicable mode, a safe and easy access to the canal, from the surface of the main river." Now, how are the inhabitants of the shores of the river to be accommodated with a safe and easy access to the canal from the surface of the river, unless the canal [**242]  is constructed upon the shore, or in the valley of the river? The 13th section makes it the duty of the corporation, when any part of the canal shall not be finished, "to keep the corresponding part of the river in a proper state for navigation." What corresponding part of the river can there be, if the canal is not made along the river? And the same section annuls the charter of the Potomac Company, upon its surrender and transfer to the Canal Company, and grants to the Canal Company all the rights and powers, that had been granted to the Potomac Company; which included the original power of the Potomac Company to make canals along the borders of the river. The 2d section of the act of December session, 1826, for amending the charter, assented to by Congress, Virginia, and the Potomac Company, authorizes the termination of the eastern section of the canal, "at or near the town of Cumberland on the river Potomac," (which is situated on the Maryland side of the river,) instead of the mouth of Savage creek and the commencement of the western section at that point, and has also this provision, "and in the event, that the western [**243]  section of the Chesapeake and Ohio Canal shall leave the valley of the Potomac river, at any point below the coal banks, at or near the mouth of Savage, &c." showing the intention of all the parties, that the route of the eastern section of the canal should be in the valley of the Potomac, and designating the town of Cumberland as a point in the valley of the Potomac, on the left or Maryland shore of the river to which it should go. The board of engineers for internal improvement, acting under the authority of the general government, in their report, made before either Congress or the Potomac Company had assented to the act of incorporation, explicitly state, that the 

 [*143]  eastern section of the canal must pass through the valley of the Potomac, and follow the course of the river without any deviation, and that the side on which it should go, is the only choice left, but giving a preference to the left or Maryland side--and they base their estimate of the cost upon a construction of it on the Maryland shore--which survey and report were recognized and adopted, as designating the route of the canal, by the legislature of  [**244]  Maryland, in the act of the 6th March, 1826, for the promotion of internal improvement, in the proviso to the subscription to the stock of the Canal Company, that the executive should be satisfied that the residue of the sum estimated by the United States' board of engineers to be adequate to the completion of the eastern section of the canal, had been subscribed by bona fide and competent subscribers; which act also provides for a canal to be made by the Maryland Canal Company, "from some convenient point on the Potomac river, continuing the Chesapeake and Ohio Canal to the city of Baltimore"--and the assent of Congress and of the Potomac Company having been given to the original charter, after that survey and report were made, they may be considered as having received their sanction also--and the survey and estimate of the cost of the same route, by the civil engineers, Geddes and Roberts, may likewise be considered as the basis of the subscription by Congress, of a million of dollars (which was made afterwards,) to the stock of the Canal Company.
With all this before us, is it not perfectly manifest, can it for a moment [**245]  be doubted, that the valley of the Potomac was intended, and specifically designated for the route of the contemplated canal? If indeed the sanction given by this State to the proceedings of the board of engineers for internal improvement, by making their survey the basis of a subscription of half a million of dollars, to the stock of the Canal Company; and the assent of Congress, and of the Potomac Company to the original act, after that survey had been made; and the subscription by Congress of a million 

 [*144]  of dollars, consequent upon the survey, and estimate of cost of the same route by the civil engineers, Geddes and Roberts appointed for that purpose, may not be taken as an actual appropriation of the land surveyed for the route and site of the canal. If the Canal Company had come into existence immediately, and before the rail road charter was granted, it would have taken a vested right to choose a route for the site of the canal, in the valley of the Potomac, along either bank of the river, except at the upper terminus, which, whether at the mouth of Savage creek according to the original charter, or at Cumberland [**246]  according to the amendatory act of the December session, 1826, is confined to the Maryland shore, both of those places being on that shore, and specifically designated for the upper termination of the eastern section of the canal, a right created by the charter, and existing independent of any survey, or act of location or of condemnation, which would be but an exertion of that right. And if the Rail Road Company had afterwards been chartered and organized, before any exercise of that vested right by the Canal Company, it could not, by any act of location or appropriation, have defeated or overreached it. The prior grant that gave, would have preserved the prior right. It would have been a corporate right, a vested franchise, to select the most suitable ground for the construction of the canal within the assigned sphere of action, which neither of the sovereign grantors alone, nor all together, could by any direct legislative act, have taken away or repealed; and much less could it be taken away, or disturbed by the act of any other corporation. This franchise, this corporate right, to select and acquire land for the authorized purposes of a corporation, is property;  [**247]  it is an incorporeal hereditament, not a legal title to the land itself, not a mere capacity or faculty to acquire and hold land, such as every individual possesses; but in addition to such capacity, it is a right or privilege, a portion of the eminent domain vested in the corporation, to acquire the legal title to land subjected by the grant to its will, and 

 [*145]  thus to convert the incorporeal into a corporeal hereditament, and after the franchise to choose and condemn land for any particular public purpose, that portion of the eminent domain granted and subsisting in one corporation, cannot be bestowed upon another, to the prejudice of the former grant; nor can any other legally acquire, any such right of way or title to the land over which the franchise extends, as will hinder the former corporation in the exercise and enjoyment of its franchise. And although the Canal Company was not actually incorporated, and had not accepted the charter, before the Rail Road Company was chartered and organized, yet it is entitled to all the rights, benefits, and liberties, with which it would have been invested, if it had been organized before any antagonist corporation [**248]  came into existence. It is not like the common case of an act of incorporation, passed by an individual State, which ordinarily, the State may repeal or modify at pleasure, at any time before it is accepted, and when no rights are acquired under it, and if it is accepted after any alterations are made, the corporation takes it subject to such modification; because, until accepted, it is not a grant, and there is no contract between the State and the corporation, no pledge of public faith, to be violated by any alteration of the charter. And is it not on the ground of an original contract with the Canal Company, by Congress and the two States, at the date of this charter, that on this point of the case, the corporation is considered as having taken the charter, and holding it according to the then state of things with all its provisions inviolate; for it is admitted, that the three sovereign grantors, with the consent of the Potomac Company, might have repealed, or modified the charter, (as they did in more instances than one,) or have granted the same franchises to any other company, at any time before acceptance by the Canal Company, or any act done, or right acquired [**249]  under it; as until then, it had not assumed the character of a contract with that company, and therefore might have been altered or annulled by the united action of the parties, from 

 [*146]  whose concurrence it derived its existence. Though neither, acting alone and independently of the others, had the ability to do it, according to their own understanding of its charter and obligations; as is conclusively shown by the several amendatory acts of this State, of the December sessions 1826 and 1827, expressly requiring, and receiving the concurrence of all, in order to give them validity; and the former in terms styling them necessary parties. But it is on the ground of the compact and agreement of Congress and the two States inter se, and between them and the Potomac Company, arising from the reciprocal and concurrent acts of the three former, and the assent of the latter; the consummation of which, was on the 16th May, 1825, the day on which the assent of the Potomac Company was given, anterior to the date of the rail road charter; and under the protection of the constitution of the United States, cannot be impaired or affected by any thing contained in [**250]  that charter.
It is conclusively settled by the Supreme Court of the United States, in Fletcher vs. Peck, Terrett vs. Taylor, The Town of Pawlett vs. Clark, Dartmouth College vs. Woodward, and in Green vs. Biddle, that contracts between States and individuals, and also contracts between two or more States, are within the protection of the provision of the constitution, "that no State shall pass any law impairing the obligation of contracts," and that no State can constitutionally pass any law, impairing the obligation of its own contract, whether with an individual, or with another State. The contract here was, that there should be a corporation, which, whenever it should be organized, should, by virtue of the charter, have the right to make a canal from the tide water of the river Potomac, in the District of Columbia, through the valley, and pursuing the course of the river, to the mouth of Savage creek, (a point on the left or Maryland side of the Potomac,) with permission afterwards given, to stop at the town of Cumberland, upon the river, (also a point designated on the Maryland side,) with 

 [*147]  power to acquire by purchase or condemnation,  [**251]  any land that should be found necessary for that purpose; which of necessity included the right to choose the route of the canal within the designated region, as the mere right to condemn land would have been of no value, and the canal could never have been made, without the additional right to select such land for condemnation, as should be thought best suited to the purpose; no specific part of the valley being appropriated. That right of choice then, in addition to the right to condemn, which is dependent upon the exercise of the right to choose, is a franchise, a portion of the eminent domain, which the sovereign grantors contracted should vest in the Canal Company, whenever it should be formed. It was a right residing in those sovereigns respectively, distinct from the exercise of it, which they had the power to exercise themselves, or to contract for the exercise of, by a company to come into future existence, and that, they did; not that the company should, on being incorporated, have the legal title to any lands held by individuals, but the franchise only to choose the route of the canal, and to acquire by purchase or condemnation, the legal title to the land selected for [**252]  its site. It was to have also, all the rights and privileges that had been granted to the Potomac Company. That contract has not been rescinded; was in full force at the time the rail road charter was granted, and has been constantly recognized, by all the contracting parties, and the charter treated as subsisting in all its integrity, capable only of being altered, by the consent of all the parties, even for the purpose of enlarging the authority of the company. By Maryland, in its various acts, both before and after the date of the rail road charter, relative to large subscriptions to the stock, and authorizing the intersection of it by other similar works, according to its provisions; by Congress, in subscribing to its stock; and by all the parties in the amendatory acts of 1826, and 1827, the 3d section of the first of which, (passed at the same session that the rail road charter 

 [*148]  was passed,) provides, that nothing in that act shall discharge the company from a compliance with each and every of the conditions of the original act, except as therein altered. The contract is, that the canal company shall take and hold the charter, with all its provisions, all [**253]  the rights and privileges it professes to impart. The right to make the canal in the valley of the Potomac, is not more distinctly stipulated, than the right to choose or select the route of the canal within that valley: and one stipulation can no more be violated, than the other. To exclude the canal from the valley of the Potomac altogether, would be no more a violation of the contract, than to obstruct or restrict the exercise of the right, to choose the most eligible ground for the construction of it. The right to choose the route, is not restricted by the contract, to either side of the river, except at the points designated for the termination of the eastern section; but is submitted to the judgment of the company, as it should have been. It is, by the contract, to have a choice between the two shores; authorize another company to occupy one of the shores, and that choice, that alternative is gone; it must take the other or none; and the contract, that it should have the right of choice, is violated. Besides, if Maryland has a right to authorize the occupation of the shore on the Maryland side of the river by another company, Virginia has the same right, and [**254]  between them, though only two of the contracting parties, the power to make the canal at all, might be destroyed, and the charter virtually annulled. Let it be pronounced that the Rail Road Company has the right to take possession of the Maryland side of the river, and what is there to prevent it from the taking like possession of the Virginia shore, wherever it may be found convenient? In which event the charter of the Canal Company would become as blank paper; for if it would have the right to go out of the valley with the canal, it would want the physical power, the proof being in the language of one of the witnesses, (an engineer,) that to make it out of the valley, would be a canal impracticability--and the 

 [*149]  further proof is, that if the claim of the Rail Road Company should be established, the canal could only be made on the Maryland shore, with such difficulty, and at such an expense, that no practical engineer would recommend it. In which case, the canal, if it went on at all, would have to cross the river, where it might be met by the same, or another company; for if to infringe the right of choice in this State, would not be to impair the [**255]  obligation of the contract by the sovereign contractors inter se, neither would a similar infringement in Virginia, impair the obligation of the contract between the grantors and the Canal Company. The same law equally applies to both contracts. But if it were otherwise, the fact that both companies have chosen the same shore, and the same route, is sufficient to show that, that is the best route; and the occupation of it by the Rail Road Company, even if there should be another, would equally impair the obligation of the contract, since it would obstruct the exercise of the right of choice; and the nature or degree of the hindrance, the extent to which the obligation of a contract is impaired, be it great or small, is not material in the view of the constitution. If therefore, under the proper construction of the rail road charter, or the practical application of it, that company would be enabled so to locate and construct the road, as to interfere with, and restrict the action of the Canal Company in the choice of the route of the canal in the valley of the Potomac, or in the exercise of any of the rights and privileges granted to the Potomac Company, [**256]  in so far, it is contrary to the constitution of the United States and void; and no rights to land, or of way, acquired by the Rail Road Company, can be set up against the paramount rights and privileges of the Canal Company, which stand as if the rail road charter had not been granted. The analogy insisted on in argument between this, and the case of two general or common land warrants, is not admitted; as between the holders of general warrants, there is no priority of right to locate. The warrant is in truth, nothing more than a mere authority to 

 [*150]  the surveyor or proper officer, to make the survey, and the certificate is the inception of title, to which the patent when issued, relates. The State may issue as many general land warrants as it pleases; the issuing of one, does not preclude its issuing another or more; and he who can get his warrant first executed, though the junior warrant secures the land, notwithstanding all may be laid upon the same land, because the warrant confers no right, and it is from the act of location alone, that the right arises, and the title to the land remaining in the State, may, until the warrant is located, be granted to [**257]  any other. But not so with an act of incorporation, which when accepted, amounts to a grant, and the right conferred, a vested franchise, existing independent of any act of location or survey, which the State cannot re-assert, nor grant to any other; it is therefore a prior right, to which all subsequent grants must yield. Here there was a consummated contract or pledge of public faith, anterior to the rail road charter, against the effect and operation of which, it is protected by the constitution of the United States, and to the prior right of choice so secured by that contract or pledge, the rail road charter must give place. If there is any analogy, it is to a special land warrant, arising from the peculiar and special designation of the valley of the Potomac, for the route of the canal.
If there was any thing unwise, in not having limited a time for the formation of the Canal Company under the charter, that was a question for the sovereign grantors themselves, and cannot affect the rights of those claiming under it. But there is no want of wisdom perceived: it was a subject of great difficulty, and some doubt as to the practicability of the scheme; one company had [**258]  already been in operation more than forty years, without being able to effect the desired object, and it could not well have been supposed, that others would embark their funds in such an enterprise, very hastily, and without having first taken proper measures to ascertain the probable cost of accomplishing it, if upon examination it was found to be practicable--and if 

 [*151]  there had been any unreasonable delay in forming the company, (as there was not,) they who made the charter could easily have revoked it, before any rights were acquired; and if, after being formed, it had lain by, and suffered the rail road to be made, without interposing any claim to the route on which the road was constructed, such acquiescence would have amounted to a waiver of its rights, which it would not afterwards be permitted to resume, to the destruction of the road. No argument therefore can be drawn ab inconvenienti, against the right claimed by the Canal Company.
To the objection rather suggested than urged, that the Canal Company was not a party to the contract between the two States and Congress, it is enough to say, that it is the creature of that compact; was brought into [**259]  existence by it, and claims, and holds all its rights under it; as well those which had been granted to the Potomac Company, (in place of which it is substituted,) as others more extended; the whole of which depend upon the inviolate conservation of that compact or pledge of public faith. In Green vs. Biddle, 8 Wheat. 1, the suit was not between parties to the compact. The compact was between the States of Virginia and Kentucky; and the suit was between individuals, one party claiming under a law of Kentucky, and the other setting up the compact, to show the law to be unconstitutional and void, and succeeded in doing so. But if the canal charter could be treated as the separate and independent act of Maryland alone, and which the legislature had therefore the power to repeal at any time before it was accepted, or any rights acquired under it; should the rail road charter be so construed, as to deny to the Canal Company the prior right to choose a route for the canal in the valley of the Potomac, and to give to the Rail Road Company the right asserted in the bill, to construct the road in the same valley, before the Canal Company [**260]  shall have selected the route of the canal?

 [*152]  Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them, as best to answer that intention, which may be collected from the cause or necessity of making the act, or from foreign circumstances; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute.--Plow. 205, 232. 11th Coke Rep. 73. 19th Vin. Abr. 519. 6th Bac. Abr. 384. That, therefore, which is within the letter of a statute, is sometimes not within the statute, not being within the intention of the makers. "If laws and statutes seem contrary to one another, yet if by interpretation they may stand together, they shall stand;" and where two laws only so far disagree, or differ, as that by any other construction they may both stand together, the rule that Leges posteriores, priores contrarias abrogant, does not apply, and the latter is no repeal of the former. Roll. Rep. 90, 91. 2d Co. Rep. 5, 6. 11th Coke Rep. 63, 64. 19th Vin. Abr. 519, 525. It is laid down as an established rule, in 19 Vin. Abr. 525, [**261]  Pl. 132, that "repeals by implication are things disfavored by law, and never allowed of, but when the inconsistency and repugnancy are plain and unavoidable; for these repeals carry along with them, a tacit reflection upon the legislators, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another; and such repeals have ever been interpreted, so as to repeal as little of the preceding law as is possible;" and in 6th Bac. Abr. 385, 385, that "where it is manifestly the intention of the legislature, that a subsequent act of parliament shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words of it taken strictly and grammatically, would repeal the former act." These principles have been recognized and adopted by courts, from the time of Roll, Plowden, and Coke, to the present day. In Williams vs. Pritchard, 4 Term. R. 2, where the question was, whether a house built on land 

 [*153]  recovered from the river Thames, which by the Statute 7th, Geo. 3, was exempted "from all taxes and assessments whatever," was liable to be assessed [**262]  to the general land tax, imposed by the 27 Geo. 3. Lord Kenyon in delivering the opinion of the court of King's Bench, said it could not be contended, that a subsequent act of parliament would not control the provisions of a prior statute, if it were intended to have that operation. But decided in that case, that though the words of the general land tax act of the 27th Geo. 3, were sufficiently large to subject the land to the payment of the tax in question, yet that the statute of 7th Geo. 3, exempting it from taxes, was not thereby repealed, on the ground, that it was not considered to have been the intention of the legislature to repeal it.
In Preston vs. Browder, 1 Wheat. 115. The Supreme Court of the United States, in construing an act of assembly of North Carolina, had recourse to the history and situation of the State, and treaties made by that State with the Indians, in order to ascertain the intention of the legislature, and thereby to arrive at the meaning of the act, and decided, that it did not embrace the land in question, though the words of it were sufficiently broad and extensive; on the ground, that it [**263]  did not appear to have been the intention of the legislature; and in McCartee vs. the Orphan Asylum Society, 9 Cow. 437, it was decided, that although the word purchase comprehends the acquisition of an estate, as well by devise, as by the party's own act, yet that the act of the legislature of New York, incorporating the Orphans' Asylum Society, which enacts that, that institution, "shall be capable in law of purchasing, holding and conveying any estate, real or personal, for the use of the said corporation," did not so far operate as a repeal of the statute of wills, of that State, which prohibits a devise of real estate to bodies politic and corporate. Thus limiting and restricting by construction, the acknowledged legal import of the term purchase, and confining it to such other modes of acquiring real estates, as do not include a devise, on the ground, 

 [*154]  that it was only the intention of the legislature, to grant to that corporation the right to purchase, subject to other existing statutes, and not to confer a right to purchase without restraint, and therefore, that the term purchase, ought not to be construed [**264]  in its most comprehensive sense, since by doing so, it would have the effect to repeal the express words of a prior statute; but in a more restricted sense, so as to leave the former act unimpaired, and that both might stand together. Keeping in view the principles before stated, and upon which the decisions referred to were made, with many others quite as strong that might be mentioned, let us for a moment examine, whether it was the intention of the legislature of Maryland, when granting the rail road charter, in any manner to limit or restrict the provisions of the act to incorporate the Canal Company, or to alter or abridge any of the rights or powers originally intended to be given by that act, or to repeal any part of it; and if not, whether the rail road charter must be so construed as to operate that effect. It has been seen, that the valley of the Potomac is specially and clearly designated by the charter, for the route of the canal from one terminus to the other, the upper terminus being required to be at a point on the Maryland shore of the river; and that it was considered as a work of great national, as well as local importance. And it is undeniable,  [**265]  that independent of any interference by the rail road charter, the Canal Company would be entitled to select a route for the canal, in that designated region. On the other hand, the rail road charter is general and affirmative in its terms, with no route prescribed, no particular region or district of country designated for the location of the road, nor any thing relative in its character, requiring it to be constructed, (as in the case of the canal,) in the valley of the Potomac. A general power only being given to the company to enter upon, use, and excavate, and to acquire by purchase or condemnation, any land which may be wanted for the site and construction of the road. There is no reference to the canal charter, 

 [*155]  (which is not mentioned) nor to any of its provisions, or the particular region within which the canal is required to pass, and must be made, if at all; but upon the face of it, it is perfectly compatible with the canal charter, and it is only by the practical application of it, under the construction contended for, that any interference is produced.
On the 16th of May, 1825, the day on which the Potomac Company gave its assent to it, the [**266]  act to incorporate the Canal Company became a public law of the State, though not at that time operating as a grant, not being then accepted. The act of the 6th March, 1826, ch. 180, for the promotion of internal improvement, in which a company called The Maryland Canal Company is incorporated, to make a canal "from some convenient point on the Potomac river, intersecting or continuing the Chesapeake and Ohio Canal to the city of Baltimore," gives authority to the treasurer, to subscribe for the stock of the Chesapeake and Ohio Canal Company, to the whole amount of the stock of the Potomac Company held by the State, and of the debt due to the State by that company, and of half a million of dollars besides.
Thus recognizing the act to incorporate that company as a subsisting law in all its integrity, vesting her capital to a large amount in its stock, and treating it as part of a more extended scheme of internal improvement--and by the provision for a canal to be made by the Maryland Canal Company, "from some convenient point on the Potomac river, intersecting, or continuing the Chesapeake and Ohio Canal to the city of Baltimore [**267]  ," plainly indicating the understanding and intention, that the Chesapeake and Ohio Canal should be made on the Maryland side of the river: otherwise it could not be intersected or continued to Baltimore, by the Maryland canal. The act of the 8th of March, 1826, ch. 200, giving permission to the State of Pennsylvania, to connect a canal or rail way with the Chesapeake and Ohio Canal, again recognizes it, as a subsisting law. The act of the 5th February, 1827, ch. 78, to amend the act, to incorporate the Canal Company, requiring by the 4th section, 

 [*156]  in order to give it validity, that it should receive the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company, styling them in the first section necessary parties; and declaring in the 3d section, that nothing in that act, shall be held to discharge the company from a compliance with each and every of the conditions of the original act, except so far as they are expressly altered by the provisions of that act, which only relates to a part of the canal above Cumberland, not only treats it as a law in full force, but as [**268]  a favorite measure of the State, and exacts from the company whenever it should come into existence, a rigid compliance with all its provisions; and on the 28th of February, 1827, the rail road charter was passed. Now is it to be believed, that on the 28th of February, 1827, the legislature intended by the rail road charter, to repeal any part of the canal law, which had been up to that time, so recognized and fostered by the State, and to the stock of which, considerably more than half a million of the State's capital funds had been authorized to be subscribed; or in any manner to abrogate, alter, limit, or restrict, or to authorize any interference with any of its provisions? On the contrary, is it not manifest, that the legislature had no such intention? Can it be, not only that the legislature, but the same body of individuals, who, on the 5th of February, 1827, had, in the act to amend the canal law, declared that it could not be done without the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company, as necessary parties, even for the purpose of enlarging the powers of the contemplated company, and had also required [**269]  a strict and full compliance with all the provisions of the law except as therein altered, intended on the 28th of the same month, only twenty-three days afterwards and at the same session, by its own separate and independent act, proprio jure, to repeal any part of that law, or to limit or restrict any of its provisions, or authorize any obstruction to the exercise of any of the rights or powers originally intended to be conferred by it, whereby the canal 

 [*157]  might either be arrested altogether in its progress, or driven from the State: which, so far as Maryland is concerned, would amount to a virtual repeal of the law; and that too, in favor of an institution, the relative value of which, was not then well understood? If the question could now be put to the members of the legislature who passed the rail road charter, whether they had, or not, any such intention, it cannot be doubted what the answer would be; and that, is not an inapt test of the intention. It was certainly not the interest of the State, to do any thing to obstruct the canal in its progress, or to force it from the State; nor does it appear that any interference with it, was in the contemplation at [**270]  the time, of the projectors of the rail road. But there are other subsequent legislative acts upon the subject, showing the understanding and intention of the legislature.
On the 10th March, 1827, at the same session, and only ten days after the rail road charter was passed, the canal law, with all its provisions, was again recognized by the legislature, in the supplement to the act for the promotion of internal improvement, chap. 211, modifying, by the first section of it, the condition on which half a million of dollars had before been authorized to be subscribed to its stock, and continuing the authority to subscribe that amount; which would hardly have been done, if the legislature had understood that only ten days before, they had by the rail road charter, authorized such an interference with the location of the canal, as might have the effect to force it from the State of Maryland, or destroy it altogether. The act of the 2d January, 1828, further to amend the canal law, requiring the assent of Congress, of the legislature of Virginia, &c. was not only a further recognition and affirmance of all its provisions, except as thereby intended to be altered; but by [**271]  requiring the concurrence of Virginia, Congress, &c. whenever it was intended directly to alter the law in any particular, furnishes strong evidence, that they did not intend when passing the rail road charter, indirectly 

 [*158]  to alter or repeal any part of the canal law. On the 3d March, 1828, by a supplement to the act for the promotion of internal improvement, ch. 104, authority was given to the treasurer, to subscribe for five thousand shares of stock in the Baltimore and Ohio Rail Road Company; and on the same day, and immediately following, authority was given to the treasurer, by a further supplement to the same act, chap. 105, to subscribe for the same number of shares of the stock of the Canal Company, reciting the importance it was of to the State, effectually to secure the completion of the work, if ever commenced. What work? Surely the canal, as provided for by the terms of the law. Thus, two supplements passed on the same day, treating the two contemplated works, as branches of the same general system for the promotion of internal improvement, and giving a preference to neither; but extending the same aid to each, by subscribing equally,  [**272]  to the stock of both. Those various, precedent, concomitant, and subsequent acts, demonstrate the intention of the legislature to have been, not that the rail road charter should repeal the canal law, or any part of it, or that the rail road should displace the canal; but that the law to incorporate the Canal Company, and all its provisions should remain in full force. With this manifest intention of the legislature, in the absence of any express, or necessarily implied repeal of the express provisions of a prior law, and with no plain and unavoidable repugnancy between the two laws, the rail road charter ought to be so construed if it can be done, as that both may stand, and the intention of the legislature be gratified--and not so, as by the practical application of it, to defeat the intention of the legislature, if by a reasonable construction it can be avoided. A construction of the rail road charter, that would have the effect to obstruct the route of the canal along the valley of the Potomac, on the Maryland side of the river, would be a virtual repeal of the Maryland law; since if it cannot be enforced here, it can be enforced nowhere--which was clearly not intended [**273]  by the legislature, but would be the effect of construing 

 [*159]  the words any land, used in the rail road charter, according to their most comprehensive and extended sense, as contended for on the part of the Rail Road Company; as any land, would embrace any land in the State, whether in the valley of the Potomac or elsewhere, and under any circumstances. But if construed in a more limited sense, and so as to entitle the Rail Road Company to occupy with the road, any land not required for the practical operation of the prior law, both may stand according to the intention of the legislature, made evident by the general and uninterrupted course of legislation, in relation to them, at every session from the date of the canal charter, to the time of the institution of this suit; and especially, in their avoiding to make any amendment of the canal charter, without the assent of Congress, the legislature of Virginia, &c. (and much less therefore, would they have intentionally repealed it,) and in authorizing subscriptions for an equal amount of stock in both, and constituting them independent branches of a great system of internal improvement. And that [**274]  construction should be given to the rail road charter, the construction of the road in the valley of the Potomac, not appearing to be necessary, to the full execution of the charter; and the road not being required by the charter to be made in that region--whereas the canal is not only required to be made in the valley of the Potomac, but according to the proof in the cause, can be made nowhere else, and if not made on the Maryland side of the valley, cannot be made at all under the Maryland law, viewed as a mere separate and independent charter of this State, without reference to the law of Virginia: which as such, could not authorize the construction of it, any where but in Maryland. And as the validity of the Virginia law, is made by its terms to depend upon the concurrence of Maryland, if the canal charter, as a law of Maryland, was repealed by the rail road charter, and the assent of the State to the Virginia law thus withdrawn, the whole charter thereby became inoperative and void. But by construing the words of the rail road charter, 

 [*160]  in the sense suggested, full effect will be given to both charters, and the [**275]  faith of the State preserved unimpaired, which it was never the intention of the legislature to violate, and if no other construction could be put upon the words of the rail road charter, than that contended for on the part of that company, the use of those terms, would clearly have been a mistake on the part of the legislature.
It would be doing injustice to the legislature, to suppose that they intended to start those two great companies on a race, for the ground best suited to their respective purposes, with a stake of half a million of dollars on each, by which the State might lose a large amount; in the event of one, being obstructed in its progress by the other, with no prospect of gain, instead of sending them forth, each to pursue its own independent course, without any interference or conflict with the other. It has been urged in argument, that the proviso in the supplement to the act for the promotion of internal improvement, to the subscription authorized to be made to the stock of the Rail Road Company, that the company "shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of the Monocacy river, [**276]  and the town of Cumberland, and that it shall go into Frederick, Washington, and Alleghany counties," shows the intention of the legislature to to have been, to authorize the Rail Road Company to make the road in the valley of the Potomac, notwithstanding the provisions of the canal charter, if they could first appropriate ground in that region for the route of the road. But it will be remarked, that, that proviso is no part of the charter of the Rail Road Company, and was only a condition, upon which the stock of that company was authorized to be subscribed for, on behalf of the State, and whatever might have been the object of the legislature, in annexing that condition, it cannot have the effect to show, what was the original intention of the legislature at the time of passing the rail road charter, and to overthrow all the legislative evidence, that is exhibited, of a different intention. Nor ought a 

 [*161]  mere condition, on which the legislature thought fit to subscribe for stock of the Rail Road Company, with nothing more, to have the effect to repeal the canal charter. And the requiring as a part of the condition, that the road should "go into [**277]  Frederick, Washington, and Alleghany counties," was not to require that it should pursue the course of the river: since it might go into all those counties, without pursuing the course of the river, even after going to it; and with more advantage to those counties, (which it would seem to have been the intention of the legislature to benefit by the condition,) as a road passing through their interior, would necessarily diffuse more general benefit and convenience, than one, merely running along their borders. It is possible, that the legislature did entertain doubts whether the canal would ever be commenced; no company having then been formed; and that under the influence of such doubts, they annexed to the subscription to the stock of the Rail Road Company, the condition that the road should go to the river; not for the benefit of the company, but in order to diffuse as widely as might be, the advantages to the community of that institution. But with no intention to prevent either the commencement, or completion of the canal, by requiring the road to be constructed along the borders of the river, to the exclusion of the canal. And that is not the meaning of the condition,  [**278]  as is sufficiently shown, by the recital in the immediately following supplement to the same act, of the importance to the State, of "effectually securing the completion of the canal, if ever commenced;" which conclusively evinces the determination of the legislature, that the canal, if ever commenced, should be completed according to the provisions of the charter, without hinderance by any other institution. Moreover, exclusive of subscriptions, payable in the stock and debts of the Potomac Company, there had been on the 14th November, 1827, more than a million and a half of dollars subscribed to the stock of the Canal Company, by individuals and the district corporations, and the amount required 

 [*162]  by the charter, paid on each share at the time of subscription, whereby extensive interests and incipient titles had been acquired, and the public faith pledged, that each subscriber should hold and enjoy his stock upon the terms and conditions expressed in the charter, and on which he had subscribed and paid his money,--after which, it was too late, consistently with good faith, to alter the terms and conditions of subscription; or in any manner to lessen the value [**279]  of the stock, or vary the condition or interest of the subscribers, without their knowledge or consent. Under such circumstances, with the subscription books still open, and an invitation held out to all the world, under the authority of the State, and by the charter, to come in and subscribe for stock according to its provisions as they then stood; and there being also, then pending in Congress, a bill for a subscription to the amount of a million of dollars to the canal stock, it is not, and cannot be believed, that the legislature intended on the 3d March, 1828, by the proviso annexed to the subscription to the rail road stock, to authorize and require that company, so to locate, and construct the road to the Potomac river, and along the valley as either to arrest altogether the progress of the canal, or force it out of this State into Virginia; or in any way to limit and restrict the provisions of the canal charter; or do more, than to provide as far as it could be done, for the event of the failure of the canal scheme, which might have been apprehended; but which, the same legislature, immediately afterwards on the same day, and by a further supplement to the [**280]  same act, which together, are to be taken and construed as one law, manifested a determination to prevent, by authorizing a subscription of half a million of dollars to the canal stock, on such conditions, (in their own language,) "as would effectually secure the completion of the work, if ever commenced," which is wholly at war with any intention to repeal the canal charter, or to abrogate or restrict any of its provisions; or to require or authorize the Rail Road Company to obstruct or displace the canal, by being the first 

 [*163]  to acquire title, by purchase or condemnation, &c. to any land in the valley of the Potomac, deemed necessary for its route and construction.
The acts of the legislature of Maryland, passed on the 22d Feb. 1831, and of Congress, on the 2d March of the same year, have been pressed in the argument on the part of the Rail Road Company, but do not seem to have any bearing upon the question involved. The former being "an act to promote internal improvement, by the construction of a rail road from Baltimore to the city of Washington," and only authorizing the construction by the Baltimore and Ohio  [**281]   Rail Road Company, of a rail road from some convenient point on that part of the Baltimore and Ohio Rail Road, which had then been constructed, and was in use, not exceeding eight miles from the city of Baltimore, to the line of the State, adjoining the District of Columbia, in a direction towards the city of Washington. With no relation whatever, to a location of the Baltimore and Ohio Rail Road in the valley of the Potomac, which is in a different direction, and far beyond the point on that road, from which the proposed road from Baltimore to the city of Washington, is authorized to be constructed, and not in the remotest manner tending to sanction such a location of the Baltimore and Ohio Rail Road, or to show the original intention of the legislature to have been, to repeal any part of the canal charter, or to authorize the Rail Road Company so to locate that road, as to obstruct, or in any manner interfere with the passage of the canal, along the valley of the Potomac, upon the Maryland side of the river. The making the contemplated road from Baltimore to the city of Washington, not being dependent upon, and having nothing [**282]  to do with the question, whether the Rail Road Company has or not, a right to construct the Baltimore and Ohio Rail Road in the valley of the Potomac, but may be made whether that right exists or not, and without any reference to it; and even, although the rail road never should be completed to the valley of the Potomac. Just as well may 

 [*164]  any law, which may hereafter be passed, for making branches from any part of the rail road that is completed, be said to show the intention of the legislature to have been, to confer upon the Rail Road Company by its charter, the right to exclude the canal from the valley of the Potomac, by first occupying the ground, as can the act of this State, of the 22d February, 1831. And the act of Congress, of the 2d March, 1831, does no more than merely to authorize an extension "into and within" the District of Columbia, of the road proposed to be made by that act; without any reference whatever, to the chartered rights of either the Rail Road or Canal Company, in relation to the occupation of the valley of the Potomac, or to any sanction, express or implied, of the claim set up by the Rail Road Company [**283]  .
There were several minor questions discussed at the bar, which in the view that has been taken of the subject, it is not deemed necessary to examine. It may however, here be proper to remark, that had our minds been in a state of equipoise, the decree of the Chancellor, whose argument we regret not having seen, would have been affirmed; there being no appeal from a decree of reversal. But not entertaining that degree of doubt, which would alone justify a decree of affirmance, we should be unworthy of the trust reposed in us, if we were to shrink from the faithful discharge of our duty, only to commit the decision of the cause to another tribunal. These observations are elicited, by our having been reminded in the course of the argument, that in the event of a decision against the claim of the Rail Road Company, there could be no appeal; which we regret, but cannot honestly avoid the consequence.
The decree of the Chancellor is reversed, and the bill dismissed with costs.
EARLE, and STEPHEN, J. concurred.  

DISSENTBY:
ARCHER; DORSEY 

DISSENT:

ARCHER, J., dissented, and delivered the following opinion:

 [*165]  A collision having arisen between the Rail Road and Canal Companies [**284]  , in the designation of a route for their improvements, a removal of the difficulty is sought in the judgment of this court, in the exercise of its appellate, equitable jurisdiction.
The solution of these difficulties will be found in the determination of the legal priority, which one company may have over the other, and in the examination of their respective equities.
The canal claims priority over its rival company upon the ground, first, of her derivative rights arising by assignment from the Potomac Company, and secondly, from her original rights springing from the law which created her. These pretensions shall be severally examined. In their investigation, the comparative rights of the Rail Road Company will be necessarily reviewed.
1st. The derivative rights of the Canal Company will be first examined.
Without any particular reference to the laws in relation to the canal, it may be generally stated, that these gave to the Canal Company, the right of receiving from the Potomac Company, the surrender of its charter, and an assignment of all its rights and privileges, and the right to hold, use, possess, and occupy the same, to the same extent [**285]  as the Potomac Company at the time of the surrender held them. The Potomac Company did accordingly, on the 15th August, 1828, execute its deed of surrender of the charter and rights above referred to.
This charter of the Potomac Company was granted in the year 1784, long anterior to the Rail Road Company, and if it was possessed of rights and privileges, which were interfered with by the rail road charter, its assignee, the Canal Company, must be protected in their enjoyment, as it would not be competent for the legislature, to disturb by her subsequent action, rights vested in pursuance of her anterior grant.

 [*166]  An attentive examination of the charter of the Potomac Company then becomes necessary, for the purpose of ascertaining her powers, rights and privileges. If this company had originally no power of making a continuous canal, or in consequence of lapse of time, had lost the power of acquiring land on the river, to make her improvements, no rights which she possessed, or property which she enjoyed, are at all interfered with; the Rail Road Company not seeking to disturb its works heretofore erected, or to interfere with the navigation of [**286]  the river, by its locations, but desiring only to pursue its unoccupied margin.
If it were legitimate to look beyond the laws creating this corporation, to discover the designs of the legislative body, in its creation, they would be observed in a light too glaring to escape the dimmest vision. Previous to December, 22, 1784, commissioners had been appointed by the States of Maryland and Virginia, to confer together on the subject of opening and improving the navigation of the Potomac river, and, on that day, they proceeded to consider the subject referred to them, and came to a variety of resolutions recommendatory to their respective principals. Some of these will be adverted to.
"That it is the opinion of this conference, that the removing the obstructions in the river Potomac, and the making the same capable of navigation, from tide water, as far up the north branch as practicable, will increase the commerce of Virginia and Maryland."
"That it is the opinion of the conference, that the proposal to establish a company for opening the river Potomac, merits the approbation of the two States."
"That it is a general opinion that the navigation  [**287]   on the Potomac may be extended to the mouth of Stony Run."
"That the States appoint skilful persons to view, and accurately examine and survey Potomac, from Fort Cumberland to the mouth of Stony river, and the river Cheat, from about the Dunker bottom to the present navigable part thereof, and if they judge the navigation can be extended 

 [*167]  to a convenient distance above Fort Cumberland, that they may from thence survey, lay off, and mark a road to Cheat river, or continue the same to the navigation, as they may think will most effectually establish the communication, between the said eastern and western waters."
The object and intent of this conference was manifestly not to Canal the river, but to render its bed navigable, for it speaks constantly of making the river navigable--how? by canalling? no, but by removing obstructions in it. The great object was, to produce a communication with the western country, not by a canal, but by the conjoint means of the river itself, whose navigation was to be made passable by clearing its obstructions, and by roads across the ridges of the Alleghanies, to certain designated [**288]  navigable waters of the west. Out of the results of this joint commission, grew the charters granted by the respective States to the Potomac Company, passed immediately after the labors of the commission had closed, and it is remarkable how closely the States pursued the recommendation of their commissioners. The great agent which each created, for effecting this object, so strongly recommended, of improving the navigation of the river, was the Potomac Company.
But if we cannot look at the anterior proceedings of the States, to fix their designs in the creation of the charter of the Potomac Company, even where the charter is not inconsistent with the intent thus indicated, and it may be well assumed, that the charter is the only legitimate index of the legislative intent--then, it is just as clear, that the design of the charter, is identical with the designs as expressed previously by the commissioners, with this exception, that the States foresaw, that there existed impracticalities in the removal of obstructions, in particular places or passes of the river, arising from falls, which might render occasional canalling necessary.
Let us examine, with some minuteness,  [**289]  the provisions of this grant, that we may be enabled, the more clearly to discern its character.

 [*168]  Both the charters of Maryland and Virginia, as regards this question are identical.
The title explains the whole scope and object of the law. What is it? "An act for opening and extending the navigation of the Potomac river."
Now let us refer to the recital--"Whereas the extension of the navigation of Potomac river from tide water to the highest point practicable on the north branch, will be of great public utility, and many persons are willing to subscribe large sums of money to effect so laudable and beneficial a work; and it is just and proper that they, their heirs and assigns, should be empowered to receive reasonable tolls, forever, in satisfaction for the money advanced by them in carrying the work into execution, and the risk they run."
Thus we perceive, that the preamble, like the title, looks constantly to the river, whose navigation is to be improved--and the opening of its navigation, as the work which is to be accomplished. But the preamble proceeds: "And whereas it may be necessary to cut canals and erect locks" ( [**290]  not a continuous canal, but canals) and other works on both sides of the river, and the States, impressed with the importance of the object, are desirous of encouraging so useful an undertaking: Therefore, &c." Now, what undertaking is here referred to? Is it not that which had been previously referred to--the opening of the navigation of the river? and can the word canals be tortured to mean one continual canal? On the contrary, does it not obviously pre-suppose that the river, in some places, may be innavigable even by art, and that hence, in such places there may exist a necessity, in order to preserve a continuity of navigation, that such barriers should be avoided by canals, otherwise the great work of opening and improving the navigation of the river might have been defeated.
The 9th section more clearly specifies this power of cutting canals, and in express terms defines and declares the object of such a grant. The following is the language, 

 [*169]  "That for and in consideration of the expenses the proprietors will be at, not only, in cutting the said canals for opening the different falls of the said river, and in improving and extending [**291]  the navigation thereof, the canals and profits are vested in the proprietors in fee, it is deemed real estate exempt from taxation, and they declared to be entitled to tolls." Thus the canals authorized to be cut, are declared "to be canals round the falls of the river," and the legislature here distinctly recognize two objects within the grant. 1. The cutting of canals round the falls; and 2dly, the improving and extending the navigation of the river itself. For this section, as we have seen, says the company will be at expense in cutting canals round the falls, and in improving and extending the navigation of that river: thus all idea of one continuous canal is not only impliedly repudiated, but is without the express terms of the grant--for a river navigation is looked to where not impeded by falls, and where falls interfere, canals.
The 10th, 17th, and 19th sections, are in furtherance of the same construction, and will justify no other.
The 10th section enacts, "that the said river, and the works to be erected thereon, in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway, free for the transportation [**292]  of all goods, commodities or produce whatsoever, on payment of the tolls imposed by this act." Now, if it was designed, that the Potomac Company should make one continuous canal, and abandon the improvement of the bed of the river, it is inconceivable that the company should have been permitted to retain the right of collecting tolls, for the transportation of produce down the channel of the river. Because, instead of improving its navigation, so as justly to render those who passed down it liable to a toll, it had abandoned the river, by making a continuous canal, and had, by abstracting thereby so large a quantity of water from its current, in all probability lessened the value of the stream itself to the public, as a navigable river. Instead of a continuous canal 

 [*170]  having been in contemplation, this section clearly shows, that the improvement of the river and canals as before, were contemplated, because tolls are imposed on produce passing down the river and the works thereon, and the river and the works thereon are declared to be a public highway.
The 17th section is also perfectly explicit, where it declares, that "the Potomac Company shall make [**293]  the river well capable of being navigated in dry seasons, by vessels drawing one foot water." Now a continuous canal would have a tendency, by lessening the quantity of water in the river, to defeat this express requisition--that of making the river navigable in dry seasons. And the 19th, pursues the same object, and is illustrative of the same design. "Be it enacted, that all the commodities which may be transported on the canals and river, may be landed and sold, subject only to such impositions as the like goods are liable to, in the state where landed." Here the transportation of goods down the river is spoken of, and also through the canals. What canals? Why the canals spoken of in the 9th section; "the canals round the falls."
Thus the title, preamble, the whole scope and object of the grant, all the sections adverted to, refer distinctly and explicitly to the improvement of the bed of the river, unless where that is rendered impracticable by falls, and then, they were to canal. Thus their powers are clearly limited and defined, and they would have possessed no power to make a continuous canal, and consequently were destitute of all power to condemn land [**294]  for any such purpose.
All the sections of the charter having any reference to this branch of the subject, have been adverted to, except the fourth section, and having thus ascertained the general scope and object of the legislature, and what it is, that this company was incorporated for, I shall advert to that section. "The company shall have power and authority to agree with any person, or persons, to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary, for opening, improving, and extending 

 [*171]  the navigation of the said river above tide water, to the highest part of the north branch to which navigation can be extended, and carrying on the same from place to place, and from time to time, and upon such terms, and in such manner as they shall think fit." It is upon this section, that the Canal Company insists, that powers were imparted to the Potomac Company, to make a continuous canal. Now, whatever power this provision might, if it stood alone, be supposed to grant, it must be admitted, that its phraseology is capable of being controlled by the scope and object of the law, to be deduced from its provisions generally.  [**295]  Thus, when it is said, they may perform these works from time to time, this would seem to give them an unlimited range. But the words from time to time must be controlled, and governed, by the limitation assigned in their charter, for the completion of their work. Again, when it is said, these canals, locks, and other works, are to be done in such manner as the company shall think fit; this generality of expression must be restricted to canals and locks, of such size and dimensions, as might be prescribed in other sections of the law; and so when the general power is given to make such canals as they may deem necessary, it means such canals as are spoken of in the 9th section, "canals for opening the falls of the river." It is not my intention to assert, that they were confined in their power to make canals, to the Great and Little Falls, but had a general power to make a canal around any falls of the river, which impeded its navigation. But in the exercise of their judgment, of what canals were necessary, they were restricted to the making of them only where falls existed; and it would have been a perversion and evasion of the law, to have made either a continuous [**296]  canal, or a canal where no falls existed, or no impediment existed in the navigation of the river by its natural course. It is no answer to this, to say, that a continuous canal would better have subserved the public interests, and better have gratified the wishes of the legislature, by giving certainly and safety to the transportation of 

 [*172]  produce from the north branch to tide water; for the legislature have not chosen to say so, they desire alternate river and canal navigation; they desire the river to be opened and improved, and the difficulties interposed by falls, surmounted by canals. And having intelligibly impressed these dispositions on their grant, a court of justice should give it efficacy as they find it; and has no power to do any thing else. They must expound the grant, and not frame one, because they might perchance think, that a grant thus judicially framed, would better subserve the public welfare.
The same construction which is above given to the Potomac charter, has from its very organization, been given to it by the parties interested, by the States of Virginia, Maryland, and the Potomac Company herself. At November session, 1797, that [**297]  company stated, that they had removed most of the obstructions in the Potomac river, from Savage river to tide water, that they had erected locks at the Little Falls, and made a canal at the Great Falls, but had not completed the locks thereat; whereupon the legislature authorized that company to receive tolls, conceiving that their great scheme of improvement, as contemplated by the charter, had been so far advanced, as to justify the grant of liberty to take tolls. And the legislatures of the two States, go on from time to time, Maryland, for the period of twenty-nine years, in extending time to the Potomac Company to complete the navigation of the Potomac river; thereby recognizing the mode of improvement pursued, as the proper mode, and the construction put upon the law as the true one; and Virginia has even gone farther, and has extended the time for thirty-six years, from the passage of the law. And as if to give greater efficacy to what has been done, and to confirm, if it wanted confirmation, that the construction was strictly according to the charter, Maryland, by her law of 1802, ch. 84, declared "that the object contemplated by the act  [**298]   of Assembly, for establishing a company for opening and extending the navigation of the 

 [*173]  river Potomac, had been accomplished." Again, in the act of 1786, extending the time to the company, for completing the navigation, the legislature declare that their reason for the enactment of the law was, "that the two last summers had been so unfavorable to the work of making and improving the navigation above the Great Falls, in the Potomac river." We may easily imagine, how much the occurrence of freshets in the river, would interfere with the works of a company which had to make the river navigable in dry seasons, by clearing out obstructions; but if their business and duty had been to make a continuous canal, there must have been the occurrence of two very unusual and extraordinary summers, to have been pronounced by legislature so very unfavorable to the digging and construction of a canal. The act of 1790, ch. 35, which authorized the company to apply the tolls, received for the improvement of the branches of the river above Seneca, contains this provision, "Provided that no such application shall be made until the main river, from tide water, is cleared  [**299]   to Fort Cumberland." Here the main river is spoken of. It is to be made navigable not by a continuous canal, but by being itself cleared. And by an act passed in the year 1814, being a supplement to the charter, power was given to the Potomac Company to acquire lands, contiguous to the canals and locks on the river, by purchase, compromise, and exchange, but with the proviso, "that the said company shall not, at any time, hold more than one thousand acres of land in this State." Notwithstanding the general power to purchase land contiguous to their canals, all the land they are to hold, both that which is occupied by their canals, and such as they should purchase contiguous to them, was not to exceed one thousand acres. With this express limitation, who will or can say, that it ever was intended to grant any power, to make a continuous canal from tide water to the highest practicable point on the north branch, a distance of from one hundred and twenty to one hundred and fifty miles, and considerably more, 

 [*174]  following the sinuosities of the river. A moment's calculation will show, that instead of being able to purchase any land contiguous to their canals [**300]  and locks, one thousand acres, the extent of their power to hold, would have been exhausted, before they could have reached half the distance from tide water westwardly, with a continuous canal.
Thus, whether we look to the charter itself, or to the practice, acts, and understandings of the parties under it, its exposition is freed from all doubt; and clearly, there was at no time power to make a continuous canal, and it was never so thought, or understood, by the parties or either of them.
The right of the Potomac Company to condemn lands, has long since ceased, not by any forfeiture of its charter, but by limitation of time. In speaking of this limitation, it is only meant to refer to the right of condemnation, along the disputed and contested territory. It may still possess the right to condemn land, from the town of Cumberland to the highest place to which navigation is practicable, on the north branch of the river, unless the company accepted some of the amendments of the charter; for between those two designated points, there seems to have been no limitation of time in the original law, with regard to its powers in this respect. But from the town of Cumberland to [**301]  tide water, Maryland had bound her to complete her works by the 1st January, 1813, from Great Falls to the town of Cumberland, under the following penalty, "that it should not be entitled to any benefit, privilege, or advantage under her charter, and from the Great Falls to tide water, under the penalty of a forfeiture of all her rights to tolls, and all her preferences to a navigation of the river." And it was under the same obligations, and liable to the same penalties under the Virginia charter, except that, by that, and its supplements, it had the time extended until the 1st January, 1820. Now it so happens, that the very portion of the river, and its contiguous country, now in litigation, from the town of Cumberland to the Great Falls, is the subject of this limitation. Whether the right to condemnation still continued 

 [*175]  in the company, higher up than Fort Cumberland, we are consequently not concerned to inquire.
The continuation of the company, notwithstanding the limitation of time, for the exercise of its ordinary franchises, even if it had not completed its object, there never having been any process in a legal tribunal for vacating [**302]  its charter, is not the question presented for consideration; but the question is this, could that company, after the time limited, exercise its extraordinary power of condemning land, whether its works were or not completed.
The power of condemning land, and appropriating it for the use of the company, was a high attribute of sovereignty, was in derogation of the rights of the citizens, and ought to be construed rigidly, and made subject, in the strictest degree, to all the limitations imposed upon it by the sovereign power; and denying to it this power, when the question comes collaterally, or incidentally into litigation, in a court of justice, in no manner affects the common and ordinary franchises of the corporation, but leaves them all subsisting, to be exercised in their accustomed mode, until there shall be a regular judicial forfeiture, while at the same time, every citizen has it in his power to guard himself against the illegal seizure and appropriation of his land, and is not called upon to solicit the intervention of the sovereign power to establish the fact of a forfeiture of franchises, before he could hope for a vindication of his rights.
We accordingly see the [**303]  parties to this grant, constantly acting upon this principle. The Potomac Company never seeking the passage of laws denying the right to have their charter forfeited, but asking time to extend their works in the mode pointed out by the laws, and neither the company, nor the legislature, ever looking back to periods of time which had elapsed, not covered by any of the laws extending the time, but always forward to the exercise of those powers conferred by their charter, which would be necessary to enable them to complete the work they had undertaken.

 [*176]  If the company failed to complete her works from the Great Falls to Cumberland, in the language of the 17th section, she was no longer entitled to her privileges, one of which was, the purchase and condemnation of land within those limits; and a title, either by the one mode or the other, would have been just as unavailable, as it would have been, had the charter declared, that the title acquired at such a time, and under such circumstances, should be void, and the company might at all times have been restrained by a court of equitable jurisdiction, from the acquisition of title by such means, after the [**304]  time limited by the law, had elapsed.
And if she had on the contrary, completed all the objects in the contemplation of the legislature by that charter, within those designated points, it cannot be contested, with success, that they nevertheless still retained the power of condemning lands.
That these works had been completed in view of all parties, is not to be disputed against a clear, legislative, declaration to that effect. The original charter only authorized the exaction of tolls, upon their completing the extension of the navigation from Cumberland to the Great Falls, and from those falls to tide water. In 1802, ch. 84, the legislature of Maryland passed a law with the following preamble:--"whereas the object contemplated by the act of assembly, for establishing a company for opening and extending the navigation of the river Potomac, has been accomplished,"--and then enacted, that she should take the tolls as originally prescribed, thereby recognizing in the fullest and clearest manner, the entire completion of the work, at least within the designated points. To fulfil its engagements then to the public, the Potomac Company had nothing further to do,  [**305]  for she had the declaration of the highest functionaries of the State, that she had performed them. The act of 1809, further extending the time, furnishes no argument against this view, because, although the company had completed her work, she may have desired the re-establishment of her former powers, which are by this law 

 [*177]  admitted to have expired, for the purpose of rendering more perfect her works, for her own profit and advantage.
If then, she had completed all the works assigned her by the charter to perform, for what purpose should the law repose in her, for an indefinite period, the power to condemn lands, or why should she retain those powers for a moment beyond the period assigned?
For what purpose was the power to condemn, granted? The 11th section informs us--"And whereas it is necessary for the making the said canals, locks, and other works, that a provision should be made for condemning a quantity of land for the purpose"--therefore the power is given.
Now, if all the canals, locks, and other works, are made and completed, and we have the legislative declaration that this was done, where the necessity for the existence of the power, and did it not, by the [**306]  terms of the grant expire with the accomplishment of that, which it was intended to effect? Argument cannot make this proposition plainer, or carry greater conviction to the mind of its truth, than its mere statement.
But it is said, the company had a right to adopt one mode of improvement, then abandon it, and commence, and prosecute another. That she might make canals where none were made before--let this be admitted. Still she must execute all these powers within the limited time prescribed by the charter, otherwise, she is transcending the powers granted.
It therefore appears, that the Potomac Company, having no powers at the date of her assignment, to make a continuous canal, or to condemn land, could confer no rights or privileges to the Canal Company, its assignee, which could give it a priority over the rail road, or any right against that company, which only takes the unoccupied margin of the river.
The Canal Company, possessing no derivative rights to priority over the Rail Road Company, as we have seen, 

 [*178]  plants herself upon her own original charter, and claims, that it gives her a precedence.
This brings us to the consideration of the original  [**307]   rights of the company.
This claim, it is said, is fully supported, whether the Canal Company be considered as obtaining her grant from the State of Maryland alone, or from the United States, Virginia, and Maryland.
These claims will be separately examined.
Let us first suppose the grant to be from Maryland alone, unaffected by any compact with other States.
At what time did the law of Maryland go into operation? At what time was the Canal Company incorporated? To what period had it relation?
After having severally examined these questions, for the purpose of fixing a day, on which the rights of the Canal Company came into being, it is proposed, to examine the course of Maryland legislation, anterior to the date which shall be thus ascertained, and to determine its character and validity, as affecting the rights and interests of the parties.
1. At what time did the law of Maryland go into operation?
The State of Virginia, in her first law, by its 21st section, had reserved to the States, the right within their respective territories, of tapping the canal by any canal they might think proper to construct; and had made her whole act [**308]  to depend upon the following proviso: "Provided that before this act shall take effect, the Congress of the United States, shall authorize the States of Maryland and Virginia, or either of them, to take and continue a canal from any point of the above named canal, or the termination thereof, through the territory of the District of Columbia, or any part thereof, to the territory of the said States, or either of them, in any direction they may deem proper, upon the same terms and conditions, and with all the rights, privileges, and powers of every kind whatsoever, that the company have, to make the Chesapeake and Ohio Canal," with 

 [*179]  this additional proviso: "that in taking or extending such lateral canals through the District of Columbia, no impediment or injury should be done to the navigation of the Chesapeake and Ohio Canal;" and the State of Maryland, in conforming and assenting to the act of the State of Virginia, added this express condition to her law, "that the act of Congress, contemplated by the 21st section of the Virginia act, shall provide some safe and practicable mode, whereby, such lateral canals may be [**309]  secured to the State of Maryland, and whereby, also, it may be determined whether such lateral canals will injure the said Chesapeake and Ohio Canal, within the meaning and intention of the 21st section of the Virginia act." On the 3d of March, 1828, Congress assented to the act of Virginia, and enacted as follows: "should the State of Maryland or Virginia desire, at any time, to avail itself of the right secured to it by the 21st section of the act aforesaid, to take and continue a canal from any point of the Chesapeake and Ohio Canal, to any other point within the territory of the District of Columbia, or through the same, on application to the President of the United States by the executive of the State, the President is authorized, and empowered, to depute three skilful commissioners of the United States' corps of engineers, to survey and examine so much of the route of such canal as may affect, in any manner, the navigation of the Chesapeake and Ohio Canal. The said commissioners shall ascertain, as far as practicable, whether the canal proposed to be constructed, will injure or impede the navigation of the Chesapeake and Ohio  [**310]   Canal, and report to the President, the facts and reasons upon which they may ground their judgment thereupon, which report shall be submitted to Congress at the session next ensuing the date thereof, for their decision thereon; and if Congress shall be of opinion, that the said Canal may be cut in the manner proposed, as aforesaid, without impeding or injuring the navigation of the Chesapeake and Ohio Canal, the same shall be conclusive thereon."

 [*180]  It is perfectly apparent, that the condition above required by Maryland, was not fulfilled by this act of Congress, for, although, she had generally, given her assent to the law of Virginia, she had coupled that assent with a provision, which, at all times, left it in the power of either branch of Congress, or the executive, to prevent either Maryland, or Virginia, from conducting a canal through the District of Columbia; for whether it was at any time to be made, was to depend upon the fact, whether in the judgment of Congress the contemplated canal would injure or impede the navigation of the main canal; which, in other words, was an entire reservation to herself, of [**311]  granting, or refusing, at any future time, the liberty demanded by the States of Maryland and Virginia, which, instead of being a compliance with the condition demanded by Maryland, that the right to make this lateral canal through the District, should be secured to her, was a direct negation of it. For, how could that right be said, in any manner, to be secured, which was to depend upon the judgment of one of the parties. Maryland, certainly never meant to submit her right, to tap the canal in the District, to either branch of the government, but expressly desired that Congress should secure it. How secure it? Why place it beyond the power of any one branch of the United States' government to impede, obstruct, or prevent her right? It is apparent, that Maryland did not consider the act of March, 1825, passed by Congress, as a fulfilment of her prescribed condition, for upwards of a year after the act of Congress was passed, that State incorporated a company by the name of the Maryland Canal Company, with powers to make a canal through the District, from the Chesapeake and Ohio Canal to Baltimore, and by the same [**312]  law, authorized the subscription of 5,000 shares in the Chesapeake and Ohio Canal Company, but she made that subscription dependent upon the following condition: "that Congress should enact a law expressly securing to the State of Maryland, and to any company incorporated 

 [*181]  by her, the right to take and continue a canal from any point of the Chesapeake and Ohio Canal, through the territory of Columbia, or any other part thereof;" thereby declaring in express terms, that Congress had never theretofore complied with the condition, which she had demanded, of securing to her, the fulfillment of the condition upon which her assent to the act of Virginia had been given; (act of 1826, ch. 211, sec. 21, an act for internal improvement) and insisting on an express recognition of it before her subscription to the Canal Company should be valid. It is true, that at the same session, December, 1826, at which the above demand was made by Maryland, she passed a supplement to the canal charter, which in its first section, recited that the act of Virginia, had been assented to by Maryland, and by Congress. And it is attempted [**313]  to be shown from this, that Maryland had recognized the fulfillment, by Congress, of all the requisitions of her charter. But it is impossible to give such a construction to the words "has been assented to by Congress," when we look at the character of the condition which Maryland prescribed; at the character of its attempted fulfillment by Congress; and the explicit declaration made by Maryland at the same session, that she demanded an express fulfilment of her condition. The words above adverted to, have no reference, by any just construction, to the fulfilment of the condition, but only refer to the general assent given by Congress to the act of Virginia, without in any manner alluding to the compliance of Congress, with the conditions which she had prescribed. And in confirmation of this idea, we find that Congress, looking to the demand made by Maryland, on the 23d day of May, 1828, and not until then, passed a law expressly securing to Maryland, the right which she had demanded, and complying with the condition which Maryland had imposed on the validity of her charter. Neither the condition prescribed by Maryland, nor [**314]  Virginia, had been complied with until that period, for both States required more than the consent of Congress to their acts; they required action on the part of that 

 [*182]  body; Virginia demanded that she should be authorized by that body to make a canal through the District, possessing all the powers and privileges of the Chesapeake and Ohio Canal Company; and Maryland not only demanded this, but insisted, as an express condition of her law, that Congress should secure the right. Yet instead of doing this, although she had in general terms assented to the law of Virginia, her consent became qualified, and remained qualified until 24th May, 1828, with such stipulations in regard to the exercise of the right as to confer no authority, except one, dependent upon the judgment and opinion of a future Congress, and absolutely secured nothing to Maryland.
The general assent given by the act of Congress, of 3d March, 1825, by no means gratified the conditions of Virginia. She desired a law to be passed by Congress, to enable her to make a lateral canal, from the main canal, through the District, to her limits. Was this done? Let [**315]  the first section of the law of Congress answer this question. "Be it enacted, that the act of Virginia entitled, an act incorporating the Chesapeake and Ohio Canal Company, be, and the same is hereby ratified, and confirmed, so far as may be necessary for the purpose of enabling any company, that may hereafter be formed, by the authority of the said act of incorporation, to carry into effect the provisions hereof, in the District of Columbia, within the exclusive jurisdiction of the United States, and no farther." Now, this assent is expressly limited to the right of the Chesapeake and Ohio Canal Company, to construct a canal. Not a word is said or intimated as to the right of Virginia, to make a lateral canal through the District. Indeed this section was not intended by Congress, at all, to have any reference to the proposed lateral canal, but the second section exclusively referred to it, and we have seen, that it was no law authorizing a lateral canal, but a law pointing out a mode by which some future Congress, possibly might see fit to authorize it.

 [*183]  The conditions then prescribed by the States of Virginia and Maryland, [**316]  upon which they had chosen to make their legislation dependent, were never complied with on the part of the United States, until the 23d May, 1828, and consequently, on that day, her law had validity for the first time.
2. At what time was the Canal Company incorporated?
The 3d section of the charter declares, "that whenever one-fourth, or a greater part of the capital stock of 6,000,000 of dollars, shall have been subscribed, then the subscribers, their heirs and assigns, shall be, and are hereby incorporated into a company, by the name of the Chesapeake and Ohio Canal Company."
It becomes then important, for the purpose of fixing the date of the incorporation, to ascertain at what period $ 1,500,000 of the capital stock was subscribed, for it could not, by the express terms of the grant, until that time, have any life and being, for any purpose whatever. On the 14th November, 1827, on the supposition, that the conditions prescribed by Virginia and Maryland had been complied with by the United States, and that the law of Maryland, had consequently gone into operation, books were opened by commissioners, and the sum of $ 416,900, was only obtained of [**317]  valid subscriptions; and upon the 24th day of May, 1828, only $ 562,700, were subscribed by persons, or corporate bodies, having any authority whatever, to subscribe. It is true, that in addition to those sums, the corporations of Washington, Alexandria, and Georgetown, had subscribed $ 1,500,000, but those subscriptions were entirely invalid, not having been authorized by either of their charters, and within the meaning of the act, which certainly looks solely to an effective subscription, were, until some curative law was passed, absolute nullities. Such a law was passed by Congress, but not until the 24th day of May, 1828, at which period of time, and not before, the amount of subscribed stock, necessary within the charter, to bring the company into being, was obtained. The 24th day of May, 1828, constitutes 

 [*184]  the day, then, of the actual incorporation. If it be said, that the act of Congress, of that day, had retroactive operation, and gave validity to the subscriptions, from the 14th November, 1827, the day on which they were made, so as to give a being to the corporation on that day, the answer is obvious, and is of a two-fold character. 1st. There [**318]  could be no subscriptions which could give life to a corporation, until the law existed creating the corporation, and we have just seen, that no law existed on the 14th November, 1827, nor at any period before the 23d May, 1828, for it was on that day, that the Maryland and Virginia acts went into operation. Congress then, for the first time, having complied with the conditions, upon which those States had thought proper to make their laws dependent. And 2dly. If the law of Maryland, on the 14th November, 1827, had been an effective law, the act of Congress validating the subscriptions, could have no other retroactive operation, than as against the municipal corporations, which it would bind from that day; but it could not operate retroactively, against the rights of third persons, or bodies corporate, which had come into existence, and been vested, in the intermediate time, between the date of the subscription, and the date of its validation, which we shall hereafter see, would be the effect of such retrospective action, upon the interests and vested rights of the Rail Road Company, and its effect upon the legislative power of Maryland, would of itself,  [**319]  conclusively show that such a doctrine could not exist. The charter of Maryland, may be considered as a mere offer to incorporate, and until the offer is accepted, according to her intent in making the offer, she may recall or repeal her offer. Thus, she offers to incorporate, if a sufficient prescribed number of subscribers accept. No valid subscribers within the intent of the law do accept; she then retains the power to recall the offered grant. Would it be within the power of Congress, by validating those invalid subscriptions, to render null and void all intermediate acts of Maryland? By what provision of her law, has she 

 [*185]  thus stripped herself of power? It is to be found no where, and to give retroactive operation to the law of Congress, would clearly defeat the intent of Maryland, in the enactment of her law. If this validation is to have this effect, it must be sanctioned by Maryland law. A foreign legislative body can give no efficacy, to that, which the domestic law condemns. If this is thought to be correct, and it is not believed to be susceptible of a successful denial, the Canal Company had no corporate existence until the 24th day [**320]  of May, 1828.
3d. To what period had the charter of the Canal Company relation?
Does it date its right and powers from the 23d May, 1828, the day on which, we have seen the charter was enacted? from the day on which the stock was subscribed, according to the requirements of the charter? or from the date of the Maryland act?
The course of Maryland legislation, from the period of the passage of her law, on the 31st January, 1825, until the Canal Company became incorporated by the required subscriptions, and by the entire fulfilment of the conditions upon which she had made her laws dependent, are not meant particularly to be adverted to here. They will be particularized, and commented on, hereafter. It will be sufficient, to bear in mind that Maryland had incorporated the Rail Road Company, and that the company had, anterior to the 23d May, 1828, adopted the contested route, and appropriated considerable portions of it, by actual surveys and locations.
The legislature of Maryland, upon the passage of her law, did not profess to give, or grant any thing. She merely declared, that she would grant a charter to make a canal, on certain conditions, whenever [**321]  they should be complied with, and not before. It was a mere offer then, on her part, to the public, which only became obligatory when it should be accepted, and nothing more.

 [*186]  Relation, in its legal application to deeds, stands on intelligible principles, and is meant to carry into effect the intention of parties, by giving efficacy to such instruments, when they would be, otherwise, without the intended operation. Apply it here, and quite a different result is produced; the intention of the parties is perverted; what was only intended as an offer, is converted into a contract; that which was intended, and by express terms, to take effect at some distant period, when the terms of the act should be complied with, is made to operate against intention, immediately upon the passage of the law. The doctrine of relation, it is believed, has never been held to subserve such a purpose. It is founded always on a principle of equity, and is a fiction of law, introduced for the attainment of justice, and to prevent circuity of action. Courts of law have applied it to uphold an equitable claim, against a subsequent legal title. As in the case of certificates, and payment of composition [**322]  money, the grant is made to relate back to the date of the certificate, and dates the transmission of the legal estate from its birth, so as to override, and defeat all intermediate grants. In this, there is the greatest justice and reason, for what could be more unjust or unreasonable, than to permit the highest and clearest equity--an equity arising from the payment of the purchase money, to be defeated by a subsequent grant, merely because it happened to be clothed with legal solemnities. But in the case before the court, no equity grew up with the enactment of the law, to be protected by relation. No effective act was done under the statute, until the Rail Road Company had obtained a legal existence, and had given to itself a locality. Not only was no effective act done, until this event took place, but nothing of any kind was done by any one, through which he could, by any possibility, sustain any injury. For what purpose then, it may be emphatically asked, should the doctrine of relation be called in? If its aid is sought, it would here subvert all the rules upon which that salutary fiction of law has been established; it would defeat legal 

 [*187]  rights, not for the [**323]  purpose of supporting an anterior equity, but to give a subsequent legal right the preference.
It would be difficult, nay impossible, if the doctrine of relation does exist, and is applicable in the case of offered corporations, to say what would be the limitation to it. Twenty years could be no bar, for although that furnishes the ordinary presumption against a right, yet in the case of an offered corporation, there are no persons in esse, against whom the presumption could operate. The right only begins to exist, when a sufficient quantum of stock is subscribed, and that may be for an indefinite period. In short, the only possible limitation which could exist, would be the arrival of a period, when the inexecution of the law might give rise to the idea, that it had become obsolete, which would in truth extend it to an indefinite period; for courts of justice, it is believed, would hesitate in pronouncing, that from lapse of time alone, a law existing in the statute book, though dormant, and unexecuted through the whole period, had become a dead letter.
In this view of the subject, what would be the result of the application of the doctrine of relation to a subject of [**324]  the character now before the court? An example will illustrate its evil consequences. A law passes, authorizing the formation of an incorporated company, to make a canal from the sources of the Potomac to its mouth. It is to date its charter from the time its capital is subscribed, and it has imparted to it the eminent domain of the States of Virginia, Maryland, and the United States, over the whole country watered by it, or its tributary streams--a district, of at least two hundred and fifty miles square, extending from the Chesapeake to the Alleghany, and from the highest sources of the Shenandoah to the head of the Monocacy. Nothing is done to bring this corporation into existence for half a century. Then it unexpectedly springs into life. What are to be the results? Is it to overreach and defeat all intermediately formed canals, rail roads, and turnpikes; or are all these improvements to be absolutely terminated, and this entire region thus 

 [*188]  condemned, to forego the advantages of the useful progress of legislation, enlightened by the advancement of science--and for what purpose? to gratify this notion of relation, which was never, even in [**325]  the dreams of its framers, considered as applying, or at all referring to such a subject. Besides, its deleterious consequences to a whole region of country, its effects upon legislative action, would be novel and extraordinary.
It would deny to the legislature, in the absence too of all contract, its ordinary power, that of enacting and repealing laws, and under the same circumstances, would confide to one legislative body, the power of binding its successors to abstain from all beneficial and wholesome legislation. No principle which could operate this result, can be tenable.
In order to carry back the rights of the Canal Company to the date of the law, without regard to the time when the subscriptions were obtained, resort is had to abeyance, differing from relation, not in its consequences, but in the mode only of effecting them.
This doctrine of abeyance, like relation, is a fiction of law instituted to subserve the purposes of justice, and to carry into effect the wishes and intentions of the grantor; and has hitherto, only been applied to estates of inheritance, for the purpose of passing over the reversion or remainder to the person designed to take it; as in the [**326]  case of a grant to A, remainder to the heirs of B, B being still living--or of preventing the falling in of such an estate, and its re-investment in the crown; as in the case of the grant of a dignity, when by death of the crown's beneficiary, there exists no representative, capable, by the grant, of taking it; the right is held in abeyance, until some one is in esse, capable of taking it by succession, according to the terms of the original grant. Wherever it has been applied, it has been of necessity. It is said in 3 Cruise Dig. 232, to be a doctrine which the law abhors, and a very distinguished writer on real law, as regards such estates, argues against its existence or necessity, altogether. Fearne, 361. Admitting 

 [*189]  its existence, it is said, in 1 Cru. Dig. 71, that in modern times, abeyance is not favored, because it is in restraint of alienation; and in the case of Perin and Blake, it was declared, that abeyance ought not to be extended, because, it prejudices the public, it ties up property, and leads to perpetuity. Harg. Law Tracts.
The application of the doctrine in this case, would be within none of the principles which gave rise to it.  [**327]  It must be remembered, that it is applied only in cases of necessity. Where a donor selects, as the object of his bounty, a person not in esse, having parted with his estate, there exists a necessity, that it should exist, to vest in the donee, when he comes into being to receive it; there, without either supposing the fee to remain in the donor to gratify his objects, which would be against the grant, or that it is in nubibus, the intentions of the donor must be defeated, and the donee could never take. But here the sovereign power is the grantor, which can impress upon the grant any powers of operation which it pleases: and can mould and modify it against all technical rules, whenever she shall please to do so. She might have pronounced, that the franchise should bear date from the law, without soliciting the aid of judicial fictions, to establish and give efficacy to her intentions.
We have seen that abeyance was introduced to give efficacy to estates, according to the intent of the grantor; this characteristic demonstrates its inapplicability here. The State never thought she had parted with any thing. Unlike the grantor or donor, who, by the words of the grant or gift,  [**328]  manifests a present intention to part with his estate, the State grants nothing, and means at the instant of her grant, to pass no right. She merely declares, that on the happening of some contingency in future, she will grant. She holds her law up, as an offer merely, and declares, that when any portion of her people shall accept that offer, they shall have certain powers imparted to them, and meant to place herself in no different condition, than an individual would 

 [*190]  be placed in, who would offer to contract with another, and who, without any reservation of right, possesses at all times before acceptance, the right and power to withdraw the offer.  4 Wheat. 225. Now, if the doctrine of abeyance is applied, the State is held to her offer against her clear intent; a different rule is meted out to her, from that which would be applied to individual contracts, or offers to contract, and there would thus be an utter perversion of the whole doctrine.
This fiction, like all other legal fictions, originated in that watchful anxiety which the law always manifests to establish justice. Yet it would be made to accomplish injustice, if it could bind the [**329]  legislature against its clear intent, by giving efficacy to its law, as a grant from its first offer, when according to its express terms, it was only to take place in futuro, and that on a possible contingency.
We have seen, that the doctrine of abeyance has, even in its appropriate sphere, met with the disfavor of courts of justice in modern times, as tending to perpetuities, and as prejudicing the public. If in its application to estates of inheritance, it has this obnoxious tendency, how much greater would be its evils, when applied to legislative power? The indelible, constitutional land-mark of legislative power, is, that it shall pass no law impairing the obligation of contracts. Yet this doctrine of abeyance breaks up these constitutional land-marks, by contracting them within much narrower limits. And it says, although you make no contract, yet if you offer to contract, you shall make no law rescinding the offer. Can a technical principle of law, work this change in the fundamental law?
We have seen, that abeyance is a doctrine not favored, and which ought not to be extended, as it prejudices the public. Shall we apply it to a class of cases new in their [**330]  character? To cases of offered corporations, when its consequences are such, that it would, manifestly, greatly impair the public interests. The manner in which this injury may be thus inflicted, we have seen in examining the 

 [*191]  effects of relation, and shall not again advert to them, except to remark, that its establishment in such cases, must infallibly lead to a change in the legislative course which has been adopted since the revolution. The public interest would demand it. For offers of incorporation, although never accepted, would be a negative on the power of making any future, actual grant, in relation to, or interfering with, the offer made.
But it is supposed, that judge Story, in the case of the Dartmouth College vs. Woodward, 4 Wheat. 518, has recognized this doctrine of abeyance, with all its incidents and appendages, as applicable to corporations, such as the one under consideration, and the following language of that learned judge is relied upon for this purpose: "When the corporation is to be brought into existence by some future act of the corporators, the franchises remain in abeyance until such acts are done, and when the corporation [**331]  is brought into life, the franchises instantly attach to it." If the word abeyance, in the above extract, was used in its technical sense, it must be admitted, that the authority of the dictum goes to the whole extent for which it has been cited; but it is apparent from all the reasoning of that officer, that he used the word "abeyance," not in its technical, but in its popular sense, and as synonymous with "suspension." Taken in this sense, it is entirely legitimate, and consistent with reason and authority, and that he does mean so to use it, will appear by what follows in the same paragraph of his opinion. He was endeavoring to establish the principle, "that there might be future springing contracts in respect to persons not now in esse," or in other words, that the legislature might offer to contract, and that at some future time, when the offer was accepted, it would become an indissoluble contract, clothed with constitutional inviolability: His reasoning, which goes to illustrate his meaning, is as follows: "If the legislature were voluntarily to grant land in fee, to the first child of A, to be born thereafter; as soon as such child should be born, the [**332]  estate would vest in it. 

 [*192]  Would it be contended that such grant, when it took effect, was revocable, and not an executed contract upon the acceptance of the estate? Take the case of a bank incorporated for a limited period, upon the express condition, that it shall pay out of its corporate funds, a certain sum as the consideration of the charter, and after the corporation is organized, a payment is duly made of the sum out of the corporate funds; will it be contended, that there is not a subsisting contract between the government and the corporation, by the matters thus arising ex post facto, that the charter shall not be revoked during the stipulated period? Suppose an act, declaring that all persons who should thereafter pay into the public treasury a stipulated sum, should be tenant in common of certain lands belonging to the State, in certain proportions. If a person afterwards born, pays the stipulated sum into the treasury, is it less a contract with him, than it would be with a person in esse at the time the act passed?" Now from this quotation from the opinion of the learned judge, it will be perceived, that in every case by him cited, he impliedly [**333]  admits the legislative power to modify or repeal the proposed grant, or contract, until some right has vested under it, or until something has been done, manifesting the grantee's consent, and he selects such a period, as the one which places what the legislature have done, beyond recall. This he could not have done, if he meant any thing else by the use of the word "abeyance," than suspension; for had he used it in its technical sense, he could not have so explicitly admitted, that they were liable to recall before they were vested or accepted. Indeed, if he had used the term abeyance in its technical sense, they would have been liable to recall or repeal at no time after the enactment; but the offer would have been invested with all the sanctity of an actual grant.
That in the case of grants to pious uses, or of grants in the nature of a dedication to public uses, the doctrine of abeyance is permitted, does not aid the case of the Canal Company. The grant is neither for the one purpose nor 

 [*193]  the other. But is a mere offer to grant to a joint stock company, when it shall be formed, certain privileges, with the right to take tolls, as a source of emolument [**334]  to the company. Who enjoy the profits of this company? Its emoluments are to be forever secured to the stockholders. But the canal when completed, is declared to be a public highway, it is still, however, subject to the right of exacting tolls for the benefit of the individual corporators, which strips it of the character ascribed to it, that of a dedication to public uses. The preamble of the charter cannot relieve it from the difficulty. "Whereas the completion of the work will be of great advantage to the people of this, and the neighboring States, may tend to produce a connected navigation between the eastern and western waters, may extend internal commerce and personal intercourse, between the two great sections of the Union, and may tend to consolidate and perpetuate the vital principles of the Union." These are certainly public objects of great importance. But individuals in the pursuit of private emolument and gain, may accomplish works of great benefit to the public; yet it would be scarcely allowable to say, that they had, therefore, dedicated their services to the public. The same thing may be effected by corporations, and from the same motives, and yet where they are [**335]  stimulated by tolls to accomplish these results, who would say, that therefore, their franchises were granted as a dedication to public uses? In the year 1810, a bank was incorporated in the town of Elkton, with the following preamble: "Whereas it is the opinion of this general assembly, that the agricultural, commercial and manufacturing interests of this State, will be promoted by the establishment of a bank, &c." Now here are great public objects developed, and yet, will it be pretended that the bank thus established, was a dedication to public uses? Yet if the preamble operates this result in the canal charter, it must also do it in the case of the bank. But reasoning upon this subject, is unnecessary. The canal charter is no grant, it is a mere offer; and if a case can be found any 

 [*194]  where, where rights were decided to be held in abeyance, upon a mere offer, then it will be time enough to enter into a more minute examination of this alleged dedication to public uses.
The case of the Town of Pawlet vs. Clark, 9 Cranch 292, was no offer to grant, but a grant which professed upon the face of it, to pass from the crown six miles square of land,  [**336]   and all its right and title thereto; and in Lade vs. Shepherd, 2 Strange 1049, the street was actually laid out and dedicated as a public highway, and in all the cases, where this fiction of abeyance has been applied, the grantor has clearly manifested his intention, to part with his interest in the thing granted. He had not merely proposed, or offered to do so, but had actually, by apt terms granted it, and the grant would have been prevented from its intended operation, but for the interposition of this principle.
But apart from all the above considerations, this fiction is incapable, in the nature of things, of application to the franchises of a corporation, not in existence. By the franchises of a corporation are meant, those rights which are in separably incident to it when created, or such rights of eminent domain as the sovereign power may impart to it. The corporation is the principal, the franchises are incidents. The one is the substance, the other the shadow; the latter cannot be without the former. As well might it be said, that a court baron could exist without a manor. The corporation, in the case of the Canal Company [**337]  was not to come into existence until a fourth of its stock was subscribed, nor until all the conditions of the charter should have been complied with; as it was not in being, it could have no incident; there could not be any incidents to be in abeyance, when there was no principal. Existing rights may, by law, be placed in abeyance, but non-entities cannot be in that condition. It would require the famed omnipotence of an English Parliament to give life to incidents or franchises, and put them in abeyance, before the principal or corporation was created--when the inheritance is in 

 [*195]  abeyance, although intangible, it exists. When dignities are in abeyance, the right has in legal contemplation an existence. The doctrine would be perfectly comprehensible, if it could be maintained, that the corporation was itself in abeyance, for then its incidents might also be in the same condition; but when the law passes, it is admitted, that it is not in existence, so that it could be put in abeyance; but it is to spring into life after the law, not by the law itself, but by the conjoint effect of the law, and of acts, aliunde. To avoid this difficulty, it is supposed, that after [**338]  the franchises vest de facto by the creation of the corporation, by a kind of legal magic, or subtle metaphysics, there is a coalescence of the legislative act, which creates the corporation and its franchises, with the corporate act, which produces a party capable of taking the benefit of the grant; and that the franchise relates back to the original grant. But it cannot be perceived, that in order to give efficacy to this grant, it is necessary to resort to this ingenious system of reasoning. It must be conceded, that there may be future springing contracts with persons or bodies not in esse--is it necessary to give them validity, to say, that they must relate to the first proposition, or offer for the date of their creation? By no means. They take their date from the time of their acceptance; because, until then, it is no contract.  4 Wheat. 225. This is the case in ordinary contracts, and must be so in corporations; for charters are compacts between the government and those who assume to act under them. Nor is it necessary to resort to this ingenious refinement, to account for the modus operandi of the offered grant. The offer takes date from its acceptance,  [**339]  and the franchises remain in the grantor until such acceptance, at which period of time they are divested by the offered terms of the law, and vested in the corporate body; and thus remaining in the grantor, at all times before the offer is accepted, they are liable to be actually granted to others.
If there be any truth in the above reasoning, neither the doctrines of relation or abeyance, apply to this grant, and 

 [*196]  consequently, it must look for the first existence of its powers to the date of its incorporation, which period is to be ascertained, in the words of the law, "when one-fourth of its capital shall have been subscribed," which we have seen never did take place, until the 24th day of May, 1828.
3. It is now proposed to examine the course of Maryland legislation, in matters which may affect this company, from the date of her first law in relation to it; and to determine its character and validity, as affecting the rights and interests of the parties to this controversy. In doing this, it may become necessary occasionally to advert to some proceedings under these laws.
On the 28th February, 1827, a charter was offered to the Rail Road Company. On the 31st [**340]  March, 1827, it became incorporated; the quantity of stock demanded by the charter, as preliminary to her incorporation, having been subscribed. Thus, the Rail Road Company was an actual incorporated body, nearly eight months before even an effort was made by the Canal Company to become incorporated, by obtaining subscribers to one-fourth of her capital; for it was not until the 14th November, 1827, that the latter company made any attempt to give existence to her charter, and then we have seen, that the attempt was unavailing, the subscribers to the extent demanded by the law, having no authority to subscribe. And a period of nearly fourteen months elapsed, from the time of the incorporation of the rail road, before the Canal Company was incorporated; which never took place, as we have seen, until the 24th of May, 1828. Anterior to this period, the Rail Road Company was not only incorporated, but had selected the very route in controversy, and had appropriated the greater part of it, by obtaining conveyances for some portions, and agreements for the transfers of other parts, and actually causing locations and surveys to be made. On the 3d of March, 1828, Maryland [**341]  , by a supplement to the act for the promotion of internal improvement, passed the following enactment: "Be it enacted that the treasurer of the Western 

 [*197]  Shore, be, and he is hereby authorized and directed to subscribe for, and on behalf of the State of Maryland, for five thousand shares of stock," with the following proviso: "Provided, that the said company shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of Monocacy river and the town of Cumberland, in Alleghany, and that it shall go into Washington, Frederick, and Alleghany counties." Which provision we have heretofore seen, the Rail Road Company adopted, by causing her route to strike the river Potomac, at the Point of Rocks above the mouth of the Monocacy, and designating her route towards the town of Cumberland, on the margin of the Potomac river, through the counties of Washington, Frederick, and Alleghany. All these laws were enacted, and these proceedings had, before the Canal Company was incorporated; and when it was not known, and could not be known, whether she ever would be incorporated. For then [**342]  it was uncertain, whether the necessary quantity of stock would be taken by valid subscribers, and whether the act of Maryland would ever go into operation, by a compliance by the United States, with the conditions upon which Maryland had made her act dependent, that is authorizing Maryland to make a lateral canal through the District of Columbia, and directing some safe mode by which the right should be secured to her.
Now, if the view already taken be correct, that the company was not incorporated until the 24th May, 1828, and that the Maryland law by its express conditions, never became an operative law until the 23d May, 1828; it is undeniably certain, that the grant to the Rail Road Company, not only in its general terms, was a valid grant, but would have been equally valid, had the general assembly of Maryland, in the charter of the Rail Road Company itself, designated the very route in controversy, and that all the acts of the Rail Road Company designating and selecting this contested ground, are entitled to protection, as prior vested rights under her grant, which in this view would be anterior 

 [*198]  to the rights of the Canal  [**343]   Company, and therefore entitled to priority and protection. These positions are asserted on the hypothesis, that until the grant of the Canal Company was perfected by acceptance, it was always within the competency of the legislature, to repeal or modify her offered charter, or to grant rights and franchises inconsistent with the offered grants, remaining unaccepted, or which may become so in their ordinary and legitimate exercise.
All grants offered merely to existing or non-existing bodies, or to persons in esse or not esse, are liable to be resumed at the will of the power or sovereign offering the grant, at any time before acceptance, and to be re granted to other and different individuals. I do not, it is perceived, here speak of those cases where there exists a present intention to grant, and where the instrument purports on its face to be a grant to pious or public uses; and where such instruments are upheld against the general rule of law, that there must be a grantee, as well as a grantor, or a corpus to be granted, and which are held an extinguishment of the grantor's right in the thing granted, and constitute exceptions to the general rule, but [**344]  as will be perceived, of mere offers to grant--such offers (and all charters like the canal charter are offers merely,) are not contracts which cannot be violated or impaired by any kind of legislation. Any body of men, therefore, who shall become corporations under such offer, take and accept it, subject to the known power of the legislature, by any act anterior to such acceptance, to modify it, and can only hold it subject to such modification; or if the offer have been repealed, the acceptance is a nullity, and confers no rights. Such is the settled and undoubted law in private contracts, and the reasons which demands its application to grants from the public, are of a much more weighty and imperious character, as we have heretofore seen. That there may be future springing contracts, which do not take effect instanter, but grow up, and become binding upon the happening of 

 [*199]  some future event or contingency, is not attempted to be denied, or the principle at all impaired. But until that event or contingency does happen, (I speak of cases where no interest has or could vest,) it is insisted, that the proffered contract is liable to a partial or total recall. It could [**345]  not, for example, be denied, that a grant to the unborn son of A, might at any time before the grant had vested by the birth of the grantee, be entirely abrogated. Nor could it be doubted, that the grant of lands by the legislature to any citizens of the State, who should do certain acts, could be resumed before any citizen had actually entered into a contract with the State, by the performance of the act. It is equally clear, that all the rights proposed to be granted by the canal charter, were liable to the like resumption, at any time before that charter went into legal operation according to its terms. And these rights were all resumed and re-granted by the State; or at least rights and franchises were granted by the State to the Rail Road Company of so general and comprehensive a character,--the power to construct a road in any direction, from Baltimore to the Ohio, that in their rightful exercise they became inconsistent with the offered rights, proposed to be granted to the Canal Company. And these rights had actually vested by grant and selection, before the Canal Company had come into being, nor would the principle be at all altered, by so construing the [**346]  offered grant to the Canal Company, as to give it a special and designated location along the valley of the Potomac, or to make it still stronger, along the left bank of the Potomac; for the grant is still, but an offered, unaccepted grant, and the anterior accepted grant to the rail road, being general, broad, and comprehensive, without exception, or limitation, to make a road any where between the designated points mentioned in her charter, clothes her with the right to take any route, not before actually granted.
The intention of the legislature, to make this grant to the rail road, without any limitation or reservation of any rights offered to be granted to the Canal Company, is not susceptible 

 [*200]  of successful contestation. The terms are as comprehensive as our language could make them; the grant is without any express reservation or exception, and without any words from which might be implied, any intention to make any exception. The construction then, admits of no ambiguity, and becomes imperative. We can nowhere look for legislative intention out of the grant, but must confine ourselves in the ascertainment of intention, to the terms used by the [**347]  contracting parties, in the instrument or charter by which they stipulate. Are we to construe this grant, general in its terms, as if it had contained an express exception of the offered rights, to the Canal Company? If it were capable of a double construction, one limited, and the other general, it may be conceded, that we should take that which would be limited, for the purpose of upholding the anterior law. But we cannot give it a construction to produce this effect, because its phraseology is unambiguous, and should, by so doing, limit that which is unlimited, and meant to be so, if language is any just interpreter of intention.
But the legislative intention is manifested if possible, in more direct and specific terms, by the law of 3d March, 1828. By the charter of the Rail Road Company, in 1827, she had contracted, as we have seen, in general terms. By her subsequent law, she enters into a new contract with the Rail Road Company. She agreed to subscribe for $ 500,000 worth of the stock of that company, on condition that the Rail Road Company would locate her route, so as to strike the river Potomac, above the mouth of the Monocacy, and afterwards go through [**348]  the counties of Washington, Frederick, and Alleghany. This proposition is acceded to; the rail road receives the money; the State becomes stockholders; and the company lay down their road, so as to go to, or strike the Potomac, and in pursuance of their contract, locate their road onward, through the counties of Washington, Frederick, and Alleghany, by the margin of the river. Here is a contract, as explicit and as binding as the 

 [*201]  original charter, and is in truth a modification, by a subsequent agreement of the original contract; for the grant in the original charter gave an umlimited and undefined range, at the will of the company, to select her route where she pleased; but this new contract restricted her to one designated and particular route; she must strike the Potomac, and go through Washington, Frederick, and Alleghany. Now, if the Canal Company had no route designated in her law, it must be admitted, that so far as this law fixes the route of the rail road, the Canal Company's right, however general before the selection, would be gone as to this particular course; and if it was actually located by the law to follow [**349]  the valley of the Potomac, on its left margin, so far as this route interfered with that, it would pro tanto be a repeal of the law creating the Canal Company. And what was the route to which she was confined by this new contract with the Rail Road Company? The rail road must "strike the Potomac." Now if this must be done, in the point of contact with the river, there is a direct and unequivocal interference with the route of the canal, and an equally clear interference throughout the whole controverted ground. Can it be believed that the legislature, through mere caprice and frivolity, would order this company to strike the river, and then go through the counties of Washington, Frederick, and Alleghany, without meaning that they should then take the margin? For what purpose are they brought to the river, and made to strike it? Was it merely that they might have their hopes of the most eligible route up the margin of the river defeated? Did they mean to invite them there merely to look at the route, then the more cruelly to frustrate their excited expectations; order them to retrace their steps; pass with immense cost and difficulty the elevated ridges [**350]  of the Catoctin mountain, and its parallel ranges in their progress to the western country? Such an imputation, would I am sure, be doing great injustice to the intention of the legislature. Indeed the intention that they should take the margin, is apparent from 

 [*202]  the history of the proceedings of the Rail Road Company, in evidence in this cause. Engineers had been appointed 20th June, 1827, who proceeded to examine the routes proper for the rail road, and all the routes had been examined (among the rest, this,) before the passage of the law compelling the company to strike the river; for the engineers report, in a month afterwards, this route by the Potomac. It is fair to presume, that it was as well known to the legislature, as to the company, that two or more routes were in contemplation. The one by the margin of the river, and the other in a different direction through the three counties. Knowing this, the legislature invite them to the Potomac; they must strike it, and go through the counties of Washington, Frederick, and Alleghany. The legislature were anxious that they should not cross the river, but that they should keep on the Maryland [**351]  side the whole way--they must go through the three Maryland counties. It is therefore conceived, that the canal charter was modified to the whole extent of the route designated by the Rail Road Company, in consequence of the contract made by this law with it. The subscription of $ 500,000, by Maryland to the Canal Company, furnishes no argument against the views which have been taken of the intention of the legislature. If indeed it was contended, that the rail road charter had actually repealed the whole charter of the Canal Company, this subscription might well be resorted to, for the purpose of showing, that the State never meant to annihilate it, and of demonstrating her intention, not only, that it should continue to have life and being, but that it should go on and prosper. But no repeal is attempted to be shown; a modification and limitation of its range of choice, is all that is urged, as growing out of the rail road laws. Notwithstanding the limitation thus imposed, she had a right under her charter from Maryland and Virginia, to have taken the Virginia shore of the Potomac, from the mouth of Savage river to tide, and under the operation [**352]  of the combined charters from Maryland and Virginia, she might have pursued 

 [*203]  the Virginia shores, until she arrived at a point opposite the Monocacy, or opposite any point which the Rail Road Company might select on the Potomac, as the point at which she would strike the river, then cross, and take the Maryland shore the whole distance to tide water. There is nothing unreasonable in the supposition, that Maryland thus intended to limit the Canal Company, to the one or the other of these routes, either of which, would have left the company in the possession of her chartered rights, subject to no other limitation, except what had been carved out and granted to the Rail Road Company. The canal practicability of either of the above routes is not capable of denial. The Maryland side throughout may have been more advantageous, but this will not in the least advance the argument on the other side; the practicability of other routes was foreseen; and all the State says, by her agreement with the Rail Road Company, is this, we choose to constitute you a favorite company, by giving you this route; we insist on your striking the  [**353]  Potomac; the Canal Company has other routes, let her pursue one of them. Maryland may have even thought it probable, that she might not materially interfere with the Canal Company, and she would not, if that company had fallen upon either of the other routes spoken of. Pennsylvania in her act of 9th of February, 1826, looked to this probability, when she demands the consent of Virginia to certain provisions of her act, provided the Chesapeake and Ohio Canal should be located on the south side of the Potomac. Maryland may have done the same; but whether she did or did not, it was sufficient for her to know, that it was perfectly practicable for the canal, to take one of her other routes, and it is apparent by thus interfering with her offered grant to that company, she did mean to throw the Canal Company upon such routes.
The assent of the Potomac Company did not at all interfere with Maryland legislation. Her assent was asked, because the Maryland offer of a charter would be in vain, unless she consented to the offer. If she professed a willingness 

 [*204]  to waive her rights, then, and not until then, could it have been of any utility [**354]  to have opened the subscription. But her assent subjected her to no inconvenience, nor bound her to any legal consequence. She could have withdrawn it at any time she pleased, anterior to the vesting of any legal rights. The whole charter was in fieri until the conditions which the law demanded, were complied with. And she could, and had a right at any moment before the 23d May, 1828, to have rescinded her assent, for it was not until that period of time, that the charter became valid. The anterior subscriptions on the 14th of November, 1827, were of no consequence, for they were not justified by the charter. It had not become a law, and not being such, they were null and void, and bound no one. The Potomac Company was, therefore, in every respect, in statu quo, as long as the grants of Maryland and Virginia stood as offers, and had not become binding, operative grants. She was precisely in the situation of either of these Staets; she could rescind her assent, as they could repeal their laws. It strikes me, that it would be a proposition entirely untenable, to say, that her assent placed her in the same attitude, as if she had actually surrendered her charter. The [**355]  States had made no contract with the company. She had made none with them, for they had not even a potential existence--nor had she entered into any contract any where, incurred any obligation, forfeited any rights, or done any act, which by possibility could affect her, unless it was her subscription, and that we have seen, was utterly void.
The legislature then, had the power to modify her offered grant to the Canal Company, has so modified it, and spoken her intention in this respect, in language too intelligible to be misunderstood, and by such modification and partial resumption, and re-granting of a portion of her eminent domain, has given a perfect right and priority to the Rail Road Company in what she demands.
We have been hitherto examining the foundation of the claims of the Canal Company, standing alone, on the basis 

 [*205]  of Maryland law. But the same conclusions result, and the rights of the parties, as ascertained, remain fixed and undisturbed, even although a compact existed between the various grantors of the canal charter. If a compact exists, it is certainly only binding and effectual from the period when such compact was consummated. It cannot [**356]  ante-date its power to the time when negotiations between the parties commenced, and so derive a capacity to avoid and annul all acts done by the parties, or either of them, in the intermediate time between the first offer by either, and the acceptance of it by all. Each party was bound to know, that neither, by her mere offer, was stripped of her constitutional powers of legislation, and if she accepted such offer after legislative interferences, she must necessarily make her acceptance subject to all resulting consequences, and all intermediate grants. If this be true, (and it is not perceived how it can be denied,) and if it be also true, as has been attempted to be shown, that the conditions imposed by Virginia and Maryland, were never, in their letter or spirit complied with until the 23d of May, 1828, then it follows, ex consequenti, that the compact, if any, was never until that day formed by the contracting parties; and Maryland having in the mean time, granted certain rights and franchises to the rail road, which had become vested and valid contracts, such compact, when formed, was necessarily subject to the due and legal operation of such grant and contract;  [**357]  and became obligatory in every other respect according to its terms.
Whether Maryland, in this intermediate grant, acted in perfect good faith, might not perhaps be the subject of judicial inquiry. But in this, as in all other portions of her political history, her character stands unblemished, and is susceptible of entire vindication, even considering the grant in the light of a compact, and her first offer as intended to bring about mutual and binding stipulations. Her first law was passed on the 31st January, 1825, and her conditions were never complied with, until 23d May, 1828,--a period 

 [*206]  of three years and four months. In the mean time we find her complaining of the inefficient character of the first act of Congress, and in effect demanding the just and entire fulfilment of her conditions, by her law of 6th March, 1826, entitled, an act for the promotion of internal improvements; and even after this, upwards of two years are suffered to expire, before the United States complies. In the mean time, all efforts to organize the company, legitimately, had failed, and she herself had, by her law of December session, 1827, entitled, "a further supplement to the [**358]  act entitled, an act for the promotion of internal improvement," expressed her doubts, whether the work would ever commence. Indeed it must be admitted, that the whole work was entirely contingent on the possible subscription by the United States of $ 1,000,000. And when the uncertainty of such an event was looked to, it must have been doubted by all, even the most sanguine, whether it ever could progress. Under such discouraging circumstances, from the combined causes above adverted to, can it be said that there could be any breach of faith in the State undertaking to make her grants to the Rail Road Company, as she has done, and of interfering with her previous offer to the extent which she did do by that grant? How long was she to wait for the fulfilment of her conditions? She had in effect twice reiterated to Congress, the necessity of complying with her conditions by the act of 1826, above adverted to, and by a further supplement to the same law, passed the next year; a deaf ear was turned to these solicitations, and the case of the Canal Company was utterly hopeless. She was not bound to wait for ever, and a just respect for the rights and interests of her people,  [**359]  demanded of her, that she should not longer be restrained in the march of improvement. She had waited as long as reason and propriety demanded, and nothing further could be sought by the most scrupulous adherent of good faith.
If it be urged, that the relations of Maryland with the Potomac Company should have prevented her modifying 

 [*207]  the canal charter, the answer is in substance found in the previous part of these views. Her complaint against Maryland would probably be, that she had assented, and that she had become a subscriber to the stock of this company, and that she ought to have been in good faith consulted. But such a complaint would obviously have no just foundation. She assented to the law, as Maryland made her offer. Her assent was not binding; it could at any time have been withdrawn, and such being the law, it will be intended that the parties so understood these transactions. There was nothing therefore, to prevent her, after the enactment of the rail road charter, from withdrawing her approbation; and not having done so, it is fair to consider her as yielding to any modification which Maryland had made in the canal charter; at all events,  [**360]  after the modification her assent, became subject to it. As to the subscriptions of the Potomac Company, they were utterly void, there being at that time no law to justify them, and of course the Potomac Company was under no obligations.
The above views of the whole case would entirely relieve me from the necessity of examining the question, whether any compact did, at all, exist between the State of Virginia, Maryland, the United States, and the Potomac Company, in relation to the Canal Company. But I will proceed to present my views upon that subject.
1. Was there any compact between the States of Maryland and Virginia, in relation to the Potomac Company.
2. Was there any compact between the United States, Virginia, Maryland, and the Potomac Company, in the formation of the charter of the Canal Company.
In the exposition of grants, as we have seen, the grant itself is the only index of the thing granted, and that matters aliunde cannot be resorted to, for the purpose of limiting or enlarging the express terms of the grant. But where the enactment of two States is resorted to, for the purpose, not of showing an express compact, [**361]  but of raising one by implication, a resort to some matters aliunde, may be governed 

 [*208]  by different considerations. In such case, the supposed compact rests only on inference and intendment, and the acts, usage and practice of the States, it may not be unfair to bring into review, to show the character which the parties meant to impress upon their laws. With these remarks the above questions will be separately examined.
1. Was there any compact between the States of Maryland and Virginia, in relation to the Potomac Company.
Anterior to the passage of the laws by which the Potomac Company was chartered, conferees, as we have heretofore seen, were appointed by the legislatures of the respective States, for the purpose of inquiring into the proper mode of improving the navigation of the Potomac river. This conference resulted, not in any compact, nor in any recommendations that any compact should be formed by the States, but merely in recommendations that a similar law should be passed by each State to establish a company for opening the river, and similar laws of incorporation were passed by each State, chartering the Potomac Company [**362]  , for the purpose of promoting an object no doubt greatly beneficial to both. The law of Virginia does not appear to have been of a dependent character, but the charter of Maryland rested on the condition, not that Virginia should enter into any agreement with her in relation thereto, but that she would pass a similar law, granting the same company the like privileges, and authorized a subscription for fifty shares of its stock, on condition that Virginia would subscribe the same. With these exceptions the charters of the two States were identical.
Besides the provision above adverted to, as contained in the Maryland law, each charter contained the two following sections, which are the only ones which have any relation to this subject:
"SEC. 10. And be it enacted, That the said river, and the works to be erected thereon in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway, free for the transportation of 

 [*209]  all goods, commodities or produce whatsoever, on payment of the tolls imposed by this act; and no other toll or tax whatsoever, for the use of the water of the said river, and the [**363]  works thereon erected, shall at any time hereafter, be imposed by both, or either of the said States; subject, nevertheless, to such regulations as the legislatures of the said States may concur in, to prevent the importation of prohibited goods, or to prevent fraud in evading the payment of duties imposed in both, or either of the said States, on goods imported into either of them.
"SEC. 19. And be it enacted, That all commodities of the produce of either of the said States, or of the western country, which may be carried or transported through the said locks, canals, and river, may be landed, sold, or otherwise disposed of, free from any other duties, impositions, regulations, or restrictions of any kind, than the like commodities of the produce of the State in which the same may happen to be so landed, sold, shipped, or disposed of."
By these references to the charters, it is insisted by the appellant, that a compact grows out of one, or all of the following circumstances.
1. The dependent character of the Maryland charter.
2. That the river and canals were declared highways.
3. The prohibition on both States to impose the tolls.
4. The concurrent character of all [**364]  laws to be passed, to prevent the evasion of the revenue laws of the respective States.
5. The exemption of all produce from any tax, other than what is imposed on the like produce, by the State where it shall be sold or shipped.
1. From the dependent character of the Maryland law, it must be obvious, that no idea of a compact can arise. A State may affix any condition to her law, which she may think proper, however arbitrary, or seemingly destitute of reason it may be, as to make any law affecting the rights of her citizens, dependent upon a law of a similar character being passed by a foreign State, operating upon her citizens, 

 [*210]  as a trespass law--a law regulating replevins, or any other law; yet who could say that if such foreign State complied with the condition, that there would exist an irrevocable, or any other contract between the two States, neither to repeal their law without the consent of the other? Whether the condition arises from caprice, or from high motives of interest or state policy, cannot alter the question.
Maryland had in truth high objects to gratify, by her enactment that her law should be inoperative, till Virginia passed a similar [**365]  law. The Potomac river was a border stream; each State had great interest in the improvement of its navigation. She proposed to establish a company, and also to aid it with her funds; but why should she do this unless Virginia would do the same? Why should she exhaust her resources, if Virginia would not lend a helping hand. She therefore chose to make her charter dependent. Her objects by doing so were, as she anticipated, all accomplished. Virginia was by this dependent system of legislation, stimulated to grant a charter, and also to subscribe her funds. These were the sole motives and objects of the legislature, in pursuing this peculiar course and manner of legislation.
Before proceeding to the examination of the other clauses in the charter, which have been relied upon, as creating a compact, it may be assumed, that a court of justice would in no case be justified in deducing inferentially, a contract, or compact, between sovereign States, from their mutual enactments, unless the existence of such compact would be necessary to give efficacy to their laws, and this assumption is founded on a reason so obvious, as that it need only be stated, to receive assent. [**366]  By making concurrent laws, compacts, the sovereign power of the States would, most generally, be restrained in their accustomed power of legislation, over the subject matter of such laws, for in every case, each would be obliged to seek the assent of the other, to make valid any repeal or amendments. Such consequences ought therefore only to flow from clear expressions, and 

 [*211]  unequivocal indications of intention. Now when we are able distinctly to ascertain, that no motive could exist for a compact producing such results, and that the whole object which each State had in view, was effectually brought about without supposing such a compact, by a separate course of legislation, unfettered by any State agreement, there is no ground left for the inference of an intention to make an agreement. With these views, let us ascertain whether those clauses, which are considered as compacts, are not as effectually secured to the States without, as with a compact, and by the separate laws which they have enacted.
2, 3, 5. The charters declare that the river and canals shall be highways. The object of this provision was effectually established by the creation of a charter to the company [**367]  in each State, and could never thereafter be violated, either by the company, or by the company and one of the States combined, or by both States acting together, without the consent of the company, or by either State acting separately, and alone. The company could not violate it, because such a course would violate her charter. Neither State acting separately, nor both acting together, could violate it, because it would be in breach of their respective grants to the company; nor could one of the States, acting with the assent of the company, repeal this provision of the charter, because it would be in direct violation of the charter granted by the other to the company, and would work a forfeiture of the grant in that State; and such a consequence, from the very character of the work, would utterly destroy the value of the subsisting charter; and would just as effectually guard one of the States, against such an injurious combination between the other State and the company, as any compact could possibly do. The same course of reasoning applies to the prohibition on each State, to impose other tolls, and to the clause exempting all produce from any tax other than what is imposed on [**368]  the like produce, by the State where it shall be sold or shipped.

 [*212]  4. No deduction favorable to the idea of a compact, can justifiably be drawn from that clause, in each charter, which demands concurrent legislation, in all laws passed to prevent the evasion of the revenue laws of the respective States. Each State agrees with the company, that it will pass no such law by force of its own legislation, but that it shall at all times, be contingent upon the concurrence of the other. This is the contract with the company, for its security. And can it be doubted but that she has a perfect capacity to make such a contract, and that she never could violate it, if there was no compact?
A fact in the history of these States will be adverted to, for the purpose of showing the entire improbability, that in the grants to this company, any compact was ever contemplated by the States to be made with each other. At the very sessions of the legislatures of Maryland and Virginia, at which these charters were passed, commissioners of these States were holding their sessions at Mount Vernon, negotiating a compact in relation to the navigation of this river. It was concluded in [**369]  March, 1785, and in March, 1786, it was formally ratified as an irrevocable compact between the two States. Two of the articles are, that the river should forever be a highway for the commerce of the two States, and that all laws creating any obstructions, in, or to, the navigation of the river, were prohibited to each State, without the consent of the other. No clause in it, is found having relation to the Potomac Company, or to any previous compact having ever existed between them in relation to this subject, although they were engaged in making agreements in relation to the very subject to which the Potomac Company applied. If the charters were compacts, it is astonishing they should not have been adverted to in any way; and if they were compacts, it is not to be credited, that they would in the short space of three months, have again negotiated about the subject of making the river a highway, and should have shortly after ratified that compact, when they had but just previously made one in relation to the very 

 [*213]  subject. The truth is, the States never dreamed that in chartering the Potomac Company, they had made any compact. This idea has been a modern discovery [**370]  by the appellants.
This is clearly proved by their practice. Emendation after emendation has been made by the respective States, in the charter of this company, in great and important particulars, without asking the consent of the other. Is it probable this would have been done, had the assemblies of the States, or the company, believed, or thought, that any agreement had been made between the States, in relation to the subject?
2. Has any compact been formed between the United States, the States of Virginia and Maryland, and the Potomac Company? This compact between the States is supposed to grow out of the following provisions.
1. The extra-territorial character of the legislation.
2. Its dependent character.
3. That the canal shall be a highway, &c.
4. That water rights are reserved to the respective States.
5. That each State has reserved the right to make a lateral canal in the District of Columbia.
1. The extra-territorial character of the laws. This can have no bearing on the question. Virginia could not legislate for Maryland or its territory, and certainly did not mean to do so, even with the consent of Maryland. She must have contemplated [**371]  the entire re-enactment of her law in Maryland, to give it efficacy, and her wishes, in this respect, were carried into effect. It was foreseen, that the object to be created by her law, might at one time occupy her own territory, and again the territory of her neighbor, and would lie along the borders of each, hence this law assumed this character. She too, passed the first law, and it properly assumed the shape of one perfect and entire grant, as a fundamental law for the company, which, when by a re-enactment in the several States, it became a valid 

 [*214]  law, all might appeal to it where it could be seen at one view, instead of being obliged to look for disjointed fragments of the grant, in the statute books of four States.
2. The dependent character of the laws chartering the Canal Company. Most of the reasons urged for the shape which the Potomac charter assumed, in this respect, will apply to the one now under consideration. But in addition to the fact of the canal running into both States, and so requiring legislation on the part of Maryland, to give full efficacy to all the objects and views of Virginia, neither Virginia, Maryland, nor the  [**372]  United States, could have acted in this matter for their own peculiar territories, without obtaining the assent of the other. Their anterior history shows, they had lost all absolute powers of legislation in relation to the river, and could only again resume them, with the consent of the other. A reference to the compact between Virginia and Maryland, agreed upon in 1785, and finally settled in 1786, will show that it had been stipulated, that the river was forever to be a common highway for the citizens of those States, that neither State could obstruct, in any manner its navigation, and that all laws to be enacted by either, upon this subject, were to be invalid, unless assented to by the other. This ancient compact, satisfactorily accounts for Virginia demanding the assent of the two other powers, even if her law had been entirely in its form extra-territorial. For she was enacting a law, the consequence of which, in abstracting so large a quantity of water from the bed of the river, might in dry, nay in ordinary seasons, have had a tendency, by rendering the river less navigable, to have materially interfered with its value, as a public highway for the commerce of [**373]  the two States, and interfered with the spirit of that agreement, which prohibited either State from obstructing the navigation of the river. The same considerations which induced the demand of the assent of Maryland, occasioned the same requisition on the United States, and the Potomac Company. The former had, by the session of the District, succeeded to all the rights of Maryland on the left 

 [*215]  bank of the river, so far as the same was within her territory, whether those rights grew out of the territorial sovereignty of Maryland, or by treaties, or compacts with other States: and the Potomac Company's assent was also necessary to be asked, before the Virginia law could be operative, for the grant to her gave her rights over the river, and preferences in its navigation, which the new law materially interfered with. The demand of this "assent" on the part of Virginia, is then put upon the sound and proper principles, when it is placed on the combined facts, that the canal might be extra-territorial, and that consent to any legislation was a direct compliance with anterior stipulations; Maryland and the United States yield their consent.  [**374]  The form in which this has been done, has been seized upon by the solicitors for the appellant, as indicating a contract by appropriate terms. Maryland spreads on her statute book, the whole Virginia charter, and then declares that it is "accepted, ratified, and confirmed." The United States refer to the act, and say "it is ratified and confirmed so far as to enable the company to make their canal in the District." Now if it has been shown, that Virginia, by her proposition never meant to make the offer of a contract, but merely to ask consent, as she was bound to do, to give efficacy to her law; then it is immaterial what were the intentions of Maryland, and the United States; they could not by any terms, make that a contract, which was never, by the State offering, intended to be such. There must, in every contract, be an aggregatio mentium--both must agree to contract, or there can be no contract; and here I might permit this branch of the subject to rest; but neither Maryland nor the United States believed they were entering into any compact, instead of re-enacting the whole Virginia law, section by section, and causing it to appear [**375]  as an ordinary statute, as was done by the States in the organization of the Potomac Company, they ratify, confirm and accept the Virginia law, as their law. A difference is only created in the mode of legislation, none in its consequences. It is 

 [*216]  still a Maryland law; and as far as the United States and Virginia, or the Potomac Company were concerned, was liable like all her other statutes, to repeal, or modification, until the grant proposed to be made, had actually sprung into a contract, by the organization and acceptance of the company proposed to be created.
3. That the canal to be constructed shall be a common highway, and no other toll shall be imposed, &c. This branch of the subject has been fully examined, when inquiring into the character of the grant to the Potomac Company, and having shown that it constituted no compact, no further observation need be made in relation to it.
And 5. That water rights are reserved to the respective States for the canal, both in the States of Maryland, Virginia, and the District of Columbia. These reservations are so clearly restrictive of the general grant to the company, and a maintenance [**376]  of the power of each State over the subject matter of the grant, that it is difficult to perceive how a compact is created; they are but conditions annexed to the grant, which run with it. Liberties reserved out of the grant, which the grantor could not defeat, nor could either State; for such attempted defeat would work a forfeiture of the grant, and neither State could do any act, or exercise any power, which would annul an actually vested grant. We have heretofore seen, that every judicial tribunal is impelled by the highest considerations, not to make a compact of acts which are entirely susceptible of accomplishment without, nor to call in the aid of a compact, unless there is (if I may be permitted to use the phrase,) a "dignus vindice nodus." The right of the States to tap this canal, any and every where, according to the charter, will forever exist without a compact, in virtue of the mere grant. For, let us suppose that one State attempts to interfere, to prevent the other from making a lateral canal, is not the whole charter forfeited in such other State? Certainly; for it is the condition of the grant, that this liberty shall exist, and the very fact that a forfeiture [**377]  would thus 

 [*217]  take place, secures the observance of this branch of the charter. But a State could not thus act, for it would be a violation of the grant to the company: she adopts and sanctions her grant, seeing and knowing all the conditions and reservations attached to it, and by thus sanctioning it, all the conditions are adopted, and the company could hold such State to a strict compliance with them.
Instead of there being any just foundation for the supposition of a compact, the inferences are all the other way.
These States were never known to leave their compacts, to inference from equivocal acts, but frame them with the precision which all governments do, when they enter into solemn treaties or compacts with each other. Is such the habit of the United States? Look at her compact with Georgia for the cession of her western lands. Look at all her compacts with the new States, when admitted into the Union, in relation to the public domain, within the limits of such new State. Every thing is framed with certainty and precision, and the only doubt which could possibly arise would be, not whether a contract existed, but perhaps on the construction of the contract.  [**378]  What has been the course of Maryland and Virginia? The only instance in which they ever framed a compact, we find that it was regularly negotiated by commissioners, and formally sanctioned by legislative enactments. It is not intended to be asserted, that these governments might not have made a pact, by a less solemn mode of proceeding; but their practice is resorted to, to rebut the inference of a contract in this case.
Their legislation too, in this particular instance, one would suppose, was guarded with some caution, for the very purpose of avoiding the possibility, that a compact should be supposed to exist. If Virginia had supposed she was about entering into a contract with Maryland, she would have contended herself with a simple, unqualified, demand of assent, which as the legislature of the nation, Congress was empowered by the constitution to give. But she evidently 

 [*218]  never looked to this kind of assent. She says expressly, "I only want your assent in virtue of your authority to legislate over the District." Virginia looked to the local and peculiar powers of Congress, as a mere territorial legislature, and not to her great constitutional [**379]  powers, to overlook and guard agreements made by the sovereign States of the Union, with each other. If such was not the object of the provision, what was expected to be obtained by it? Why thus limit her assent? Her assent in the form in which it was asked, was indispensably necessary, as we have seen, not only to gratify her objects in granting the charter, but in the fulfilment of her obligations, and it was not necessary to go beyond this, as she contemplated no compact, to which her general constitutional power of assent was necessary, thereby leaving nothing to inference, but clearly demonstrating that she proposed nothing else, than separate legislation on the part of each government; making the offered grant dependent only on similar grants, by other powers. But it is said by the appellants' solicitors, ex cathedra, that this peculiar phraseology of the Virginia law, grew out of a desire on the part of that State, to exclude the conclusion, that by asking the consent of Congress in general terms, she would admit the powers of that body, constitutionally to legislate on subjects of internal improvement. If this were indeed her intention, there must have been an extraordinary [**380]  portion of metaphysical subtlety engaged in the structure of her law; for who could ever dream, that a State in asking the assent of Congress to a compact between States, by the most distant implication, admitted the existence of power in Congress, to legislate over the subject matter of the compact? But the ascription of such intention to her, does not in the least degree, prove, it was the desire of Virginia to have the consent of Congress to a compact, but she asks it, that by virtue of legislation on the part of Congress, the canal might be extended through the District, by a similar grant to the same company, and that thereby the objects of her grant might be effectuated.

 [*219]  Again, is no inference to to be drawn against the idea of a compact, from the fact, that no visitorial power has been created over this corporation? Is it to be conceived that sovereigns entering into a contract, to give birth to a perpetual corporation, would have provided no common tribunal to guard the sanctity of its grant; or who might be enabled, when the corporation was transcending its limits, or from mis-user or non-user, had failed to gratify the objects of those [**381]  who gave it life, to restore to them the repossession of their imparted sovereignty? Yet, here is a corporation without a visitor. They could not have left this matter to future stipulation; and it is unreasonable to suppose, that so grave and important a matter, had escaped the observation of the contracting parties. There being no provision on this subject, it is not unfair to conclude, that the States never thought of a compact, but looking solely to their acts, as separate grants of independent sovereignties, its legal supervision was supposed to be where that of every other corporation is, in the courts of the State creating it.
But who is it that complains of this violation of compact? If there be a compact, it must be admitted that it is with parties always vigilant of their rights, and ever ready to maintain them. Has the history of the country furnished us with any evidence of remonstrances on the part of Virginia, or the United States, of an infraction of her contract by Maryland? Not a murmur has been heard; on the contrary, the Rail Road Company have grants, from both Virginia, and the United States. Is no deduction to be made from this, of what [**382]  were the intentions of the governments? Is not the inference satisfactory, that they never supposed any compact had been made to be violated, and that Maryland had done nothing, except what she had a right to do.
Having thus shown, that the Chesapeake and Ohio Canal Company had no derivative rights, which over-reached the Ohio Rail Road Company, acquired from the Potomac 

 [*220]  Company, and that the Rail Road Company has in the adoption of her route, done nothing which could interfere with the rights of that company if it were yet in being, and consequently with the right of the Chesapeake and Ohio Canal Company derived by assignment from it.
Having shown, that the Chesapeake and Ohio Canal Company could only date its charter from the 23d May, 1828, when Congress complied with the provisions and conditions upon which the States had made their charter legislation to depend, and that it must date its incorporation from the day when the subscriptions of the corporations of the District were confirmed by Congress, both of which periods were subsequent to the charter of the rail road, and its adoption of a route.
Having shown, that the  [**383]  Rail Road Company could not be over-reached by any supposed relation or abeyance of the rights of the Canal Company, and that there existed nothing to prevent the State of Maryland, at any period anterior to the vesting of any rights under her offer of a grant to the Canal Company, from either repealing it in toto, or modifying it, whether its charter be considered either as the offering of Maryland law, or growing out of her concurrent legislation with other States.
Having shown, that the State of Maryland has restricted the Canal Company in her choice of her route, and fixed the route of the Rail Road Company therein, that the law is constitutional, and gives the latter company a priority.
And finally, having shown that there exists no compact between Maryland and Virginia, in relation to the Potomac Company, or between the United States, Virginia, Maryland, and the Potomac Company, in the creation of the Canal Company, which could prevent the legislation of Maryland, or interfere with the rights of the Rail Road Company, acquired under such legislation.
I shall proceed in conclusion, to make some observations [**384]  on the comparative equities of the respective parties.

 [*221]  It is objected against the equity of the complainants, that they hastily fastened themselves upon their route on the left bank of the Potomac, during a period of time when the Canal Company was unable, from a want of organization, to select that route, and their conduct in this respect, has been assimilated to one who takes advantage of the inability, or minority of a feme covert or infant, by seizing upon, and appropriating their property; and it is emphatically asked, whether equity in such a case would not interfere?
But it is not perceived, that this haste emanated from a desire to oust the canal of its rights or privileges, but to appropriate that which she believed she had a right to occupy; and if she had the right to occupy it, it would be difficult to impute to it, the want of equity in its proceedings, in endeavoring to gain possession of the right, whatever knowledge she might have of the movements of her antagonist. But let us trace the history of this matter a little farther, and its developments will show the futility of the argument. On the 7th December, 1826, General Bernard had reported [**385]  to Congress, that the proposed canal would cost 22,000,000 of dollars. Maryland, at the session of its legislature of that year, had expressed her doubts, whether the canal would ever go into operation. Maryland had made her subscription to depend on the subscription by Congress, of a million of dollars, and it must be admitted that when the magnitude of its cost was taken into consideration, together with the uncertainty that Congress would ever give her aid, that the circumstances which surrounded the proposed corporation, were such as to make the most sanguine doubt of its success. In this state of things, the project of a rail road was started, as one the most likely to accomplish the object in view; and the history of all the legislation in relation to it, as well as all its proceedings from its organization, manifest that there was no tardiness or delay at any time. The same expedition existed in the commencement of the undertaking, as at the period when the conduct of the company is considered so objectionable. A brief 

 [*222]  reference to these laws and proceedings, will show the activity of all concerned, and at a period too, when that company could [**386]  have anticipated no collision with the Canal Company. On the 28th February, 1827, the rail road was incorporated by Maryland. On the 8th March, 1827, it was incorporated by Virginia. On the 31st March, 1827, the whole amount of stock was subscribed. On the 23d April, 1827, the company was organized. On the 20th June, 1827, engineers commenced their surveys to the Ohio from Baltimore. On the 5th April, 1828, the engineers report the route by the Potomac. On the 5th May, the board of engineers adopt the above report. On the 9th May, 1828, advice of counsel is asked, as to the mode of acquiring title to the adopted route. On the 12th May, 1828, the board of engineers were directed to proceed on the adopted route, preparatory to construction; and on the 14th May, 1828, agents were despatched to obtain title to the adopted route.
Thus, we perceive that this company moved with celerity from the very beginning. Even at a period of time when no one would have dreamed of any collision, only ten days was suffered to elapse after the passage of the Maryland charter, before one was also procured from Virginia, and in less than six weeks thereafter, notices had [**387]  been given of the meetings of commissioners to take stock. The stock had been subscribed, and the company duly organized. No greater expedition was used afterwards than before. If there had been any alteration in the conduct of the company, if from being dilatory, it had become active and energetic, there would have been greater force in the argument. But where its character has been marked with energy and dispatch throughout, it would be difficult to impute that dispatch at any given period to inequitable motives, when, at one period at least, it would have been impossible to ascribe such considerations to the same actions.
But this conduct of the Rail Road Company is susceptible of other views, which make the course they pursued entirely justifiable, On the 3d of March, 1828, Maryland 

 [*223]  had subscribed $ 500,000 to the company, on the condition that she would go to the Potomac--or in other words, the State, as we have seen, not only gave her liberty to take that course, but invited it by the strongest considerations, and having thus manifested her wishes, and conditionally fixed her route, could there be a want of equity in pursuing that course, and appropriating [**388]  it to herself? Her creator, and that of the Canal Company, the fountain of law and justice within the territories of Maryland, its legislature, had invited it to this course, and in obeying so high a manifestation of the public will, the charge of inequity against her, would seem to be entirely destitute of any just foundation.
But let us look at the picture on the other side, and we shall find that imputations of a want of equity are made upon much more solid foundations. While the charter of the Canal Company was yet in fieri, its stock, as we have seen, not subscribed for within its charter, and of course its route not designated, the State of Maryland, by a supplement to the very law, subscribing $ 500,000 to the Canal Company, subscribed the same sum to the Rail Road Company, on condition that she went to the Potomac river, and through the counties of Washington, Frederick and Alleghany. Notwithstanding this appropriation of the Potomac route by the legislature of Maryland to the Rail Road Company, the Canal Company take the subscription of Maryland, and still insist upon having the very route, thus otherwise appropriated,  [**389]  under the supplement of the law, which gives her the money. Had the Canal Company acted with perfect good faith to the State of Maryland, after taking her money, she ought to have considered herself, whatever were her absolute rights, as having waived her right to take that course which Maryland had appropriated to the Rail Road Company. It is true, Maryland had in fact only assumed the character of a stockholder in both these companies; but it is impossible to lose sight of the idea, that she never looked to her own emoluments as a stockholder, in 

 [*224]  making these subscriptions, but acted the part of a generous patron to those works, both of which she was, no doubt, anxious to see accomplished, and that for this purpose she generously and liberally advanced the public funds. Was it just and equitable therefore, in the Canal Company accepting this bounty, thus munificently bestowed, with full notice of the wishes and views of her creator and benefactor, to frustrate and defeat the only object the State had in view in extending her aid to the rival company, by declaring that she would have the very route, upon the selection of which alone the State had [**390]  declared, she would bestow her bounty on the Rail Road Company? Her course was too plain to admit of hesitation. She ought either to have refunded the money, or have abandoned the route.
Before closing this opinion, I beg leave to subjoin a few remarks in relation to the derivative rights of this company, which were neglected to be made under the appropriate head.
If the Canal Company, as the assignee of the Potomac Company, still possesses the power of condemnation, it is not a power in aid of the Chesapeake and Ohio Canal, but in furtherance of the objects of the Potomac Company. If land is condemned under her powers, derived as assignee, these lands must be applied to the objects designed by the charter of the Potomac Company, and not to the objects designed by the Canal Company. In other words, she has no right to condemn under one charter, for the benefit of the other. Now the Canal Company have adopted the left margin of the Potomac for the canal, and can have authority to condemn for such a purpose, under that charter, and for that only. As long as she adheres to her route, her rights of condemnation, under her Potomac charter, are gone.  [**391]  So far from intimating a desire to abandon such route, she is insisting upon it here. It is clear, that all her condemnations must be made under her canal charter, or they cannot subserve her purposes; for she cannot use them for her canal, if they are condemned under the Potomac Company's charter. 

 [*225]  She presents herself to the court in the attitude of an entire abandonment of the Potomac charter--Why? Because she has adopted the route of one continuous canal from tide to the mouth of Savage river, under her new charter, and so far at least as the left bank of the river is concerned, looks entirely to the new, and not to the old Potomac charter. If she means to exercise rights under the Potomac charter, they must now be in the bed of the river or on the Virginia shore. In this point of view, her rights from the assignment would be of no consequence to her in this controversy.
From all these views, it appears to me, that in point of law and equity, the Rail Road Company is entitled to the route she has selected, and I am therefore for affirming the decree of the Chancellor.
DORSEY, J., also dissented, and delivered the following opinion:  [**392]  
In forming an opinion on the various questions presented for determination, by the argument in this case, I shall endeavor to divest my mind of every impression, which may have been made by the eloquent and forcible appeal, preferred to the patriotism and sympathies of this court, by the appellant, to induce them to urge on the argument of this case against the consent of the appellees, out of its regular order. And this, I am the more easily enabled to do, by finding, on a careful examination of the record, that the harsh and uncharitable remarks made on the conduct of the President and Directors of the Baltimore and Ohio Rail Road Company, according to my view of the subject, are wholly unwarranted by any unprejudiced consideration of the facts in the case; and that the appeal made to stimulate the patriotic energies of the court, to an unwonted expedition, for the avowed purpose of removing the alleged "only obstacle" to the speedy completion of the greatest of national objects, the consolidation and perpetuation of the vital principles of the Union, and 

 [*226]  the establishment of a connected navigation between the eastern and western waters, cannot be followed by the [**393]  contemplated result; as the counsel for the Canal Company, in his concluding argument, has distinctly announced to us, that this company has not been chartered by Pennsylvania; not having agreed to accept the act of assembly of that State, by reason of the numerous conditions on which it was granted. That under present circumstances, more favorable terms could be obtained by them, is an event, in my estimation, not to be anticipated. So that this magnificent and stupendous enterprise is disrobed of its national character, and consequently, high prerogatives, and sinks into a mere "local" canal, whose extension is limited by the confines of Maryland. I shall also view this case, unprejudiced by the assertion, that the canal being a public highway, its charter should be most liberally and favorably construed; whereas, that of the rail road establishing "a close," "odious," and "enormous monopoly," should be visited with a most rigorous interpretation. Because, I regard a rail road, practically and beneficially, as great a convenience to the community, as any public highway; and those features of monopoly, so much complained of, are the inseparable attributes of that mode [**394]  of internal improvement, deprived of which, it would lose all its value, and could no longer be esteemed as of public utility.
The first inquiry, which I shall examine, is that, most elaborately and ably discussed on both sides: at what time did the rights of the Chesapeake and Ohio Canal Company accrue? Are they to relate to the date of their charter, or to the period at which, by the terms of that charter, they became a body corporate? As to the Rail Road Company, in this respect, there has been no controversy. Whether the accrual of their franchises be carried back to the time of the adoption of their charter, or to the time of their organization under it, is immaterial, as far as this first inquiry is concerned. The time, at which they assumed their corporate charter, were duly organized, and made the location 

 [*227]  of their rail road, being conceded. With respect to the Chesapeake and Ohio Canal Company, a preliminary question is presented: at what time, agreeably to the provisions of their charter, was the amount of stock subscribed for, requisite to give them a corporate existence? By the 3d section of that law, it is enacted, "that whenever one-fourth, or [**395]  a greater part of the said stock, shall have been subscribed, in the manner aforesaid, then the subscribers, their heirs and assigns, shall be, and are hereby declared to be, incorporated into a company, by the name of the "Chesapeake and Ohio Canal Company." The object of the legislature, in imposing this condition precedent, to my mind is most manifest; they designed that the powers and privileges created by their charter, never should vest, until the number of subscribers was such, as to afford a guaranty, or strong probability of the completion of the work, of which the company were to assume the execution. Nothing but a subscription by bona fide, competent subscribers, could gratify this postulate of the canal charter. If for a proposition, so undeniable, an authority were required, one, of the most conclusive character, may be found, in the case of the Salem Mill Dam Corporation vs. Joseph Ropes, 9 Pick. 187.
One-fourth part of the capital stock of the Chesapeake and Ohio Canal Company, is $ 1,500,000. In November, 1827, the whole amount of subscription, for the canal stock, by competent subscribers, was $ 416,900. In January, 1828, it was $ 562,700.  [**396]  In these estimates are excluded the subscriptions of $ 100,000 by the corporation of the city of Washington; of $ 250,000 by the corporation of Georgetown; and the like sum by the corporation of Alexandria; because, by reference to the charters of those cities, it will be seen, that they were incompetent to make such subscriptions: their powers being all of a strictly limited, municipal character; and by no possibility of construction, could they be made to convey an authority to bind those cities for the amounts which had been subscribed. They 

 [*228]  could levy money on the property within their respective jurisdictions, only to a very small amount; and such levies, they were enjoined, to apply to defraying the expenditures, incident to the execution of the specially enumerated powers with which they were invested by their charters. The subscriptions of stock, by the corporations of Georgetown, Washington and Alexandria, as before stated, formed therefore, no part of that subscription, which was required by the charter of the Chesapeake and Ohio Canal Company, to give that company a legal entity. And, that such was the admitted fact, anterior to the present [**397]  controversy, is demonstrated by the act of the Congress of the United States, passed May 24th, 1828, entitled "An act to enlarge the powers of the several corporations of the District of Coiumbia, and for other purposes:" by which it is enacted "that the corporation of Washington, the corporation of Georgetown, and the corporation of Alexandria, within the District of Columbia, shall, severally, have full power and authority to subscribe and pay for shares of the stock of the Chesapeake and Ohio Canal Company; and all such subscriptions as shall have been already made, by either of the said corporations, shall, and the same are hereby declared to be valid, and binding on the said corporations respectively." If these corporations, anterior to May, 1828, possessed the power of subscribing for canal stock, why the necessity for an act of Congress expressly creating this power, and declaring valid and binding on the said corporations respectively, subscriptions, by them, antecedently made?
But it is contended, that conceding the invalidity of these subscriptions, prior to the passage of the act of Congress, to constitute the amount of stock, requisite [**398]  to the existence of the contemplated corporation; yet, that by the act of Congress, they were rendered valid, to all intents and purposes, in the same manner, as if this act of Congress had simultaneously passed. There is nothing in the act of Congress itself, in the principles of justice or the analogies 

 [*229]  of the law, to sustain this position. There are no words, in the act of Congress to favor such a construction. The terms used, are as precise, unequivocal, and comprehensive, for the purpose designed, as language could make them--the subscriptions were to be valid and binding, on the said corporations, respectively; and on them only. Not as is now insisted, to be "valid and binding" to the destruction of rights, legally and intermediately invested in third persons. Retrospective laws, upon every principle of sound interpretation, are to be construed strictly, and not extended beyond their obvious, natural import. Upon what grounds, then, can it be seriously urged, that the meaning of Congress, in this case, is, not only to be carried to the fullest extent, which the import of the terms used will bear; but that you are to add to the enacting clause,  [**399]  without one word or circumstance indicating such a legislative design, "that those subscriptions should be as valid and binding upon all persons whatsoever, as if those corporations, at the time of subscribing, possessed the power then given them by this act of Congress?" To have passed such a law, to operate in a contest like the present, was not within the powers of Congress, had they designed to exercise such a right. Even though it should be conceded that they could have made the subscriptions, from their date, valid and binding on the State of Maryland, which I deny; yet they could not have made them so, on the Baltimore and Ohio Rail Road Company, whose intermediate rights were lawfully acquired from the State of Maryland. Such an attempt would, not only have been inconsistent with the plainest dictates of justice, but subversive of the fundamental principles of civil government; and in spirit, a violation of that principle of the constitution, which forbids the passage of laws impairing the obligation of contracts. To impute to Congress, such an outrage, from an act of legislation, like that now before us, would be, to say the least of it, so uncourteous [**400]  an extension of judicial 

 [*230]  power, that no court of judicature entertaining a just respect for themselves, would ever sanction it.
That a statute, affecting a corporation in esse, is only operative thereon from the time of its acceptance, is abundantly shown, by the authorities cited on the part of the appellees; if authorities for such a proposition could be deemed necessary. It is an assumption which needs no authorities, that the organization of a company under such a law, as that constituting the Chesapeake and Ohio Canal Company, is per se its acceptance. If then the rights of this corporation accrue at the instant they accept their charter, or in other words become a corporate body, it follows that the accrual of their rights did not occur prior to the 24th of May, 1828, and that, as far as mere priority is concerned, they must yield precedence to the Rail Road Company. But to evade the force of this sound, natural, and common sense inference; it is contended that as soon as the Chesapeake and Ohio Canal Company springs into being, they are invested with all the rights and powers designed to be conferred on them, not from the date of their actual [**401]  existence and investiture, but from the date of their charter. And this doctrine has been insisted on, upon two grounds; on one or the other of which it is said to be clearly sustainable. First, it is contended that from the nature of the franchises, about to be erected, they must be regarded from the date of the charter, as "rights sui generis, with a latent and indefeasible capacity of future attachment," &c. To sustain the legal recognition of this class of "rights," unintelligible, to minds not perverted by the most subtle refinements of legal technicalities, it was to have been expected, that at least some adjudication would have been adduced. In this expectation however, I have been disappointed. And being, in accordance with the spirit of the times, opposed to innovations on the common law not resting on reason and justice, but the offspring of abstruse refinement and incomprehensible subtilties, I cannot prevail on myself, without stronger reasons 

 [*231]  than exist for it in the present case, to admit the existence of this novel species of rights.
The ground which was next relied on in support of the principle of relation, was, that from the date of the charter [**402]  of the Chesapeake and Ohio Canal Company, all the rights with which it was intended to invest them, passed out of the States of Maryland and Virginia, and remained in abeyance, until the company was formed in whom they might legally vest: and that among these rights, passed that of eminent domain, over the whole section of country, watered by the Potomac and its tributaries, above tide water: comprehending perhaps a territory of two or three hundred thousand square miles. That the grant by Maryland, therefore, of any portion of this right to the Rail Road Company, was inoperative and void--she possessing no such power, could not communicate it to others. To support this doctrine, so astounding in its enunciation, nothing like an express adjudication has been produced; but it has been argued so much at length, and with so much earnestness on both sides, that it might from that circumstance, be well imagined to be a question of great difficulty and doubt, on the decision of which the whole merits of the controversy depended. It was attempted to be sustained upon principles of reason and justice, of policy, of intention in the legislature, of dedication to pious [**403]  and public uses, and as being clearly within the principle of abeyance. This state of abeyance, it did appear to me when the idea was started, in the argument, and subsequent reflection has confirmed my first impressions, was so wholly irrelevant and inapplicable to the circumstances of this case, that I regarded the invocation of its aid, as the last effort of extreme ingenuity, contending with difficulties insurmountable, by which it was threatened to be overwhelmed. This "absurd and unintelligible fiction," as it is denominated by one of the most profoundly learned and able jurists, that has ever written upon the laws of England, is always odious and never tolerated, but from necessity. From necessity, because, without its admission 

 [*232]  the grant must fail to take effect; upon no other legal principles could it be sustained: without it, the intention of the grantor would be wholly defeated. 4 Kent Com. 252. Is this the condition of the grant made to the Chesapeake and Ohio Canal Company. Can no company be organized, under the law, unless you adopt this wild notion of abeyance? Might not every letter, word and object of the legislature have been gratified, and [**404]  yet the right of eminent domain have remained in the State of Maryland until the Chesapeake and Ohio Canal Company were in being, and competent to exert it. If so, and it is impossible to deny it, the essential ingredient, that which is inseparable from the doctrine of abeyance, the necessity of resorting to it, as the only means of effectuating the grant, is wanting; and the principle is therefore wholly inapplicable to the case. This necessity does not depend on subsequent contingencies; it must exist at the instant the grant is made, or it can never exist at all. If the States of Maryland and Virginia had, in express terms of present grant, given to the Chesapeake and Ohio Canal Company the power of eminent domain, as now claimed; thus evincing a determination immediately to divest themselves of that right, there might have been some apology, for resorting to this far-fetched absurdity called abeyance. Because, the States having in express terms, parted with this right, and the Chesapeake and Ohio Canal Company, not being competent to take it, there is some pretext for saying, according to the fictions of abeyance, that it passed into the clouds, there to [**405]  remain until the Chesapeake and Ohio Canal Company should spring into life, when it would descend upon them. But have Maryland and Virginia attempted the commission of such an act of rashness and folly, conceding to them the right to do so? which however, I deny. Nothing bearing to it the most remote resemblance is to be found in their law. The 15th section, is the only one to be found on the subject. That simply declares that, "whereas it is necessary for the making of the 

 [*233]  said canal, locks, dams, ponds, feeders and other works, that provision should be made for condemning a quantity of land for the purpose; "be it enacted, that it shall and may be lawful for the said president and directors, or a majority of them, to agree with the owners of any land, through which the said canal is intended to pass, for the purchase or use and occupation thereof; and in case of disagreement, or in case the owner thereof shall be a feme-covert, under age, non compos, or out of the State or county, on application to a justice of the peace of the county in which such land shall lie, &c. he shall issue his warrant to the sheriff, to summon a jury to value such lands,  [**406]  and upon payment of the valuation, the Canal Company are to be invested with the title thereto." It is the intention of the legislature, to be collected from what they have said, that must control the construction of their act; so far as they have disclosed an intention to bind themselves, or part with their privileges, and no farther, can we hold them bound. There is nothing in the language of the act of assembly; or the subject matter to which it applies; or the nature of the corporation or franchises, which it was designed to create, tending to give a momentary countenance to the intent imputed to the general assembly, or to the interpolation of this extraordinary principle of abeyance. On the contrary, every clause and sentence of this act of assembly is in accordance with the common sense, sound legal axiom of the law, that those rights which pass not to the grantees, remain in the grantors. What motive could have induced the legislature, in this case, to have acted in reference to a different rule? If their object were, as no doubt it was, to expedite the formation of the Canal Company, would it have been, with most certainty effected, by the measures imputed to them?  [**407]  Would any individual have more willingly subscribed for stock, because the rights, which he thereby acquired, passed to him, not by immediate transition from the State, but in a way, which none but minds strongly imbued with legal subtleties, not to say absurdities, could 

 [*234]  comprehend? Would it not have had a tendency to delay the filling of the subscription list, when those who were peculiarly interested in the subject, saw there was no motive for haste, that they might await their own convenience; as all power of revoking or impairing the grant, or creating a rival enterprise, had passed from the hands of the State. There was then no motive for inconvenient dispatch; they might with safety wait, and speculate on events. Had the legislature designed to seal up their powers, in this incomprehensible mysterious abeyance, would they not have limited some period, at the expiration of which, they should be restored to them, in case the contemplated corporation should never be in a capacity to exert them? It cannot be said, that their omission to do so was the result of an entire confidence, that such a contingency could not occur. The reverse is the truth, as is demonstrated [**408]  by their legislating for such an emergency, and declaring, that if the requisite amount of stock were not subscribed, the subscribers should be released from their engagements: thus sedulously providing for the protection of the interests of all parties concerned, but of themselves and their constituents. Is it fair to impute to our public functionaries such unpardonable negligence, or intentional violation of their duties? Should we not in candor presume, that the legislature never intended to divest themselves, to our injury, of those powers which were confided to them for our benefit, until that corporation came into esse, by which they were to be beneficially exercised--that until then, their sovereign power of legislation remained unimpaired, and needed no statutory reservation to preserve it? If such were the conceptions and designs of the legislature, and the language they have used, as it is, be in accordance with them, is there any stern, unbending rule of law, by which, in a case like the present, the manifest intention is to be frustrated, and sovereignty disrobed of its characteristic and noblest attribute, by the seal of abeyance being stamped on its powers? If in [**409]  the constitutional code of laws of any civilized nation, the application 

 [*235]  of such a principle be tolerated, it should not find its way into the free and enlightened institutions of this country, by judicial legislation. From its introduction through any other source we have nothing to fear.
The right of eminent domain is only vested in the State, and can only be exercised by it, for the promotion of the public welfare. No transfer, or disposition can be made of it, for any other purpose. It is a power which is of the essence of sovereign government: and must always remain in a state, capable of being exerted for the public good. Such is the inherent, inviolable condition of its tenure. The State can pass no law, either utterly annulling the right, or suspending its exertion for an indefinite period, which could in anywise control subsequent legislation; until the right vests elsewhere, to be used for the public benefit, it always remains in the State. And even where the power to exercise it, is confided to others, they are not to be regarded in the character of its owners or possessors, but the instruments or agents, through whom its execution is effected by the State.  [**410]  Upon these grounds, the right depends, according to the fundamental principles of our government; and the interests of the community are deeply concerned in their inviolate preservation. In conformity thereto, should all legislative enactments on the subject, be presumed to have been made, unless such presumption be conclusively rebutted, by the terms of the laws themselves. The provisions of the charter of the Canal Company are in strict unison with such a construction; and are only made to violate it by an unnatural, wild, and strained interpretation; or rather by ingrafting on the act, an entirely new provision, unnecessary, impolitic, and improper in its operation, and which never entered into the imagination of the general assembly. And for what purpose are we urged to do this? That we may give to the Canal Company powers and priorities with which the law has not invested them; and convict a subsequent legislature of a breach of faith, and of duty, and of a violation of the constitution of the United 

 [*236]  States, which they had sworn to support. The rail road charter does impair, or designs to impair, the rights secured to the Canal Company, if any of the [**411]  positions of the appellants be sustained, except that which relates to the true construction of the rail road charter itself. The rule is and should be, omnia rite acta fuisse praesumuntur." It applies, more strongly, to the acts of co-ordinate branches of the government, than to those of courts of judicature. The power of courts of justice, of declaring an act of the legislature unconstitutional, in this State is drawn from necessity: and whilst I admit its existence, I am firm in the conviction, that it should never be exercised, but in a clear case, where the usurpation of authority stands free from doubt. If this high and delicate power be lightly or wantonly exerted, or in any other than cases where the mind harbors no reasonable doubts, as to the infringement of constitutional principles, it will lead to consequences, more ruinous to the public interests, than would attend its non-existence.
But where the necessity of introducing into this case, the magical term "abeyance?" Its introduction, in construing the act of the legislature relative to the Canal Company, serves but to perplex and confound what is otherwise simple and unambiguous. The cases, referred to in support [**412]  of it, are those of present grant, not where a mere mode of creating a franchise or right, is provided for by law. They are cases where the grant must operate in presenti or never. Here there is no absolute, or immediate grant of a franchise, which must take effect instanter or never: nor is it a grant on a condition precedent or subsequent, by which irrevocable rights instantly pass from the grantors. But it is, as it were the mere offer of a bargain, a naked authority, which, until accepted in the mode prescribed, is revocable at the discretion of the party from whom it emanates. This, surely, would be its condition, if this charter were the act of a private individual. Can a reason be assigned, why a different construction should be placed upon it, when regarded as the act of a legislative body? What is a statute, or order 

 [*237]  of assembly, but the mere expression of the will of the legislature?
The adoption of the notion of abeyance makes the legislature to do, what is inconsistent with their duty, and irreconcilable with the attributes of sovereign legislative power: and imposes on them this absurdity, without motive or object; whereas their duty [**413]  to their constituents, the interests of the community, and all sound legislative policy should have prompted them to a course of conduct, the reverse of that which is ascribed to them. They would be binding themselves for a period indefinite, when no equivalent obligation was imposed on the party with whom they designed ultimately to form a contract. No time was limited for the organization of the Chesapeake and Ohio Canal Company; none prescribed, when the important prerogative of legislating for the public good, according to the exigencies of the times, and the improved lights of science, might descend from the clouds, and light again on the sovereign legislature of the State. No human foresight could with certainty predict such a reinvestment of power. It could not be effected by limitations or length of time, until there be a party in esse, whose right might be impaired by such a positive or presumptive bar. If, therefore, a thousand years were to elapse, before any company were formed under the canal charter, the State, though enjoying none of the contemplated advantages, which formed the consideration for the cession of their rights, would still be hung up in this state [**414]  of abeyance. It could not in any part of the territory, watered by the Potomac and its tributaries, open a public highway; authorize the construction of a turnpike road; condemn, as is usual, the site of a town, or sanction any other internal improvement; not even grant to the United States or to itself, the land necessary to erect a fort or arsenal, no matter how urgent a necessity therefor, may have been produced by a state of war. Can a court of justice, unless impelled by a force of language which leaves no alternative, which admits of no other rational 

 [*238]  construction, be induced for a moment to countenance such a theory. According to my view of the subject, without violating the plainest principles of reason, justice, policy, the express words of the law, and the manifest intent of its framers, it is impossible to do so. What motive could have prompted the legislature to such a suicidal act? May not every rational design, which can be imputed to them, be as effectually accomplished by their retaining the power, till it vested elsewhere in a capacity to be exerted.
And this state of abeyance, if once endured, must be interminable, unless, per chance, a Chesapeake  [**415]   and Ohio Canal Company should spring into existence: and consequently presents this strange incongruity; if no body corporate comes into being, in whom, by the terms of the grant, they can vest, the rights of the State are irrecoverably gone; by no possibility can they be re-acquired; but, if those rights vest in the grantees, there is some hope for the State. It may be restored to its lost inheritance, which it sold for less than a pot of porridge, by purchase, by forfeiture, or by the Chesapeake and Ohio Canal Company ceasing to have further occasion for its use. Such an absurdity has no analogy in the law to sustain it: no reason, resting on expediency or necessity. It was suggested, that such a construction was necessary, in order to protect the Canal Company from the effects of conflicting, unjust, and inconsistent legislation. Has the constitution made any provision against such acts? If not, can a court of justice do so? Can they mould laws and constitutions as suits their pleasure? And for what purpose are they now asked to do so? To prevent the legislature from exercising their inherent rights, lest according to the court's notions on the subject, they may exert [**416]  them unwisely, unnecessarily, or inconsistently. Of their conduct, in this respect, they are themselves the sole, the exclusive judges. The constitution has imposed on them no such interdict: it is neither our province, nor within our powers to prescribe it. To interpret their acts, or adjudicate on such a presumption, would be an indignity 

 [*239]  to the legislature, that this court could not permit themselves to offer. Were we to do so, it would be but a consistent extension of the same principle, to determine, that the general assembly having once legislated, their power of future legislation on the same subject, was in abeyance, lest they should act unwisely, unjustly, or inconsistently.
As respects the right of eminent domain, the same power has always been given to the turnpike road companies, that is conferred on the Chesapeake and Ohio Canal Company. Was it ever before suggested, that until the location of those roads were made, the right of eminent domain over the whole section of country in which their location was authorized, had passed out the State; and that no public highway could be laid out through it, until those turnpike roads were definitively located. On [**417]  the contrary, have not the legislature, under such circumstances, been in the constant habit of opening public roads, as if no restriction had been laid on their powers: thus giving a legislative interpretation to their acts, and announcing their intention to be, the reverse of that which it is now insisted to have been.
According to this doctrine of abeyance too, if, immediately after the passage of the canal charter, and the assent to it by the Potomac Company, and before one share of stock had been subscribed, Virginia, Maryland, Congress, and the Potomac Company, had for reasons the most cogent, determined that the charter of the Chesapeake and Ohio Canal Company should be annulled; and in pursuance of such determination, the Potomac Company had revoked their assent, and Maryland, Virginia, and Congress, had repealed their laws, yet it was competent to have proceeded and organized the Chesapeake and Ohio Canal Company; and when organized, they would have been clothed with the same powers and immunities, as if those repeals and revocation had never taken place: and this without the aid of any constitutional provision. Does this appear to be either [**418]  reasonable or just? is it such an intention as ought to be imputed to the parties to this charter? Unless restrained 

 [*240]  by some constitutional or fundamental principle of civil government, what one legislature enacts, the same, or its succeeding legislature, may modify or repeal, either in whole or in part. Until the corporate franchise was acquired in the mode pointed out by the canal charter; Congress and the legislatures of Maryland and Virginia, or either of them, as far as their respective interests were concerned, might at discretion have exerted this power. The right appears to me incontrovertible: the only question could have been the expediency of its exercise; and of this the legislature are the uncontrolled, exclusive judges. To restrain the legislative power, in the manner here attempted, is to fetter it with a restriction which no principle of constitutional law, of civil government, of reason, or of public policy, either authorizes or requires. It is essential to our well being and prosperity, as a nation, that they who legislate for our benefit, should be left free to act, as their wisdom, prudence, and sense of justice, may dictate. And that in [**419]  their sphere of action, in providing for the public weal, no restraints should be imposed on their powers, which are not to be found in our constitutional code, or in those fundamental principles which are the basis of all civil society. If, from misrepresentation, or ignorance of facts, or misconception of our rights or interests, they are led into error; they should be permitted to retrace their steps, to correct their mistakes. The existence of such a privilege is of the essence of legislative power: to withhold it would be productive of ruinous consequences. What is there in the charter of the Chesapeake and Ohio Canal Company to make it an exception to this general rule? Considered in its proper light, it is nothing more than the offer of a bargain by three States, which, upon its acceptance, forms the contracting party on one side; the grantors. Until such acceptance, either of those States might revoke or alter its proposals at pleasure. It is in no wise distinguishable from a similar offer made by a private individual in reference to his own domain. And the same right of amendment, modification, 

 [*241]  or revocation of such offer would exist in the one case, as the [**420]  other. With as much propriety may you apply this doctrine of abeyance, to the common cases of unaccepted contracts between individuals. As if A proposed to B to go to Washington, or pay me £  10, and you shall have my horse, although B make no engagement to do either; yet A's right to his horse is put in abeyance, and he cannot be restored to his right of property, by withdrawing his proposition.
The argument is, "that when the corporation comes into life, the franchise which existed before de jure, then vests de facto, and relates back to the date of the charter, having the same operation as if the Canal Company had then been in existence." If this position can be sustained, there could be no such thing, as seniority in grants of land in Maryland, issued under the same order of the Lord Proprietary, or of the Governor and Council, or of the same act of the General Assembly of Maryland. And if by a subsequent order, a particular manor were granted, and afterwards a part thereof granted under a survey, authorized by the prior orders, the junior grant would have priority over the senior: contrary to the repeated decisions of all the courts in Maryland [**421]  upon that subject. Indeed it would follow, that after the acts of assembly, or orders of the executive council, have, upon the terms and conditions therein specified, authorized the citizens of the United States to acquire title to all, or any of the vacant lands in the State, that those acts of assembly, or the orders of council, could not subsequently be changed or repealed; the rights of the State having been thereby, put in abeyance. And yet such repeals and modifications have uniformly been made, and it never entered into the imagination of man, to question their legality, or to carry back a title, beyond the period at which the grantee acquired an equitable title, by locating his land warrant.
Under our act of assembly, entitled "an act to incorporate certain persons in every Christian church or congregation 

 [*242]  in this State," every religious denomination may become incorporated, by complying with the prescribed requisitions. By this notion, of relation to the date of the law authorizing an incorporation, all of those corporate bodies come into existence at the same instant of time: there is no such thing as seniority amongst them; although, in point of fact,  [**422]  some of those Christian congregations had been duly incorporated, twenty years before others ever existed, or were known as a religious sect, or denomination of Christians. And if 500 years had intervened, it would not vary the principle. Should the State, for the encouragement of religion, direct its treasurer to divide $ 10,000 on the 1st January, 1833, amongst all the religious societies, incorporated under that act; a christian congregation, conforming to the provisions of the law, fifty years afterwards, might, by this retrospective operation, claim its distribution of that, of which it was never designed to be a participant.
If the Chesapeake and Ohio Canal Company, by this doctrine of abeyance and relation, is, upon its being ushered into life, to be considered as clothed with the rights of the State from the date of its charter; upon the same principle, the proposition is incontrovertible, that they are invested with all the rights and property of the Potomac Company, from the time of their assent to the canal charter: which assent was given, as it was designed to be, soon after the passage of the act of assembly under which it was made. They could no longer collect [**423]  tolls, or do any other act authorized by their charter. Was such the design of the legislature? Could they have intended, to prompt the Potomac Company to such an act of folly, and ruinous injustice to themselves? That all their dearly bought rights and privileges should be suspended; the public deprived of the enjoyment of the canals and locks constructed for their benefit, to gratify an absurd, unnecessary, technical fiction, which in truth, has no application to such a subject. If the States are to be held as having made this wanton, useless sacrifice of their rights, human ingenuity cannot 

 [*243]  suggest a ground, on which, the Potomac Company can be rescued from a similar fate. Abeyance is equally applicable; if it does not more strongly apply to acts of individuals and corporations, than to those of a sovereign State.
If, then, fifty or a hundred years had elapsed (as it well might and probably would, but for the subscription of $ 1,000,000 obtained from the United States, at a moment the most auspicious,) before the Chesapeake and Ohio Canal Company had been warmed into life, and during that interval, the profits received by the Potomac Company, if [**424]  any they could receive, had been millions; the whole of it would have vested in the Chesapeake and Ohio Canal Company: and no interest would be allowed the Potomac Company on their capital during this period. Would this be justice? Could it have been the intention of the legislature, or the understanding of the Potomac Company, when their assent was given? Had the Canal Company been immediately organized by the terms of their charter, the stockholders in the Potomac Company, at the par, or nominal value of their stock, were to be adopted as stockholders in the Canal Company. In this situation of the parties, the proposed substitution administered justice to both sides; but can it be conceived, that either the legislature or Potomac Company intended, that if the organization of the Canal Company were delayed for a century, and during this period, the profits of the Potomac Company were four times the amount of its stock, yet it all became the property of the Canal Company. Such glaring injustice finds no support in the express words of the law, upon no principle of construction or implication does it receive the slightest sanction. Of the use [**425]  and profits of their stock, the Potomac Company remained in the enjoyment, until they were substituted to an equivalent, by the organization of the Canal Company. So, upon the most extended idea of the transfer of the right of eminent domain, which can be insisted on with the semblance of plausibility, to support 

 [*244]  it, the State continued in possession of it, until it vested in a being, in esse, competent to exert it for the purpose for which it exists. As was before remarked, the power of eminent domain is the inseparable attribute of sovereignty; and is held as a high and sacred trust, delegated exclusively, and to be exerted only for the public good. It is a right, in its nature unalienable, except to those, who, exercising it in consummation of the designs for which it was granted, are regarded, pro hac vice, as the agents or instruments of government. It cannot be granted to those who are incompetent to exert it: neither can the sovereign power disrobe itself of this, its noblest prerogative, nor place it in abeyance, or in any condition in which it is incapable of being exercised, where the interests of the public demand its exertion. These are implied [**426]  conditions inherent in the nature of the power, and indissolubly attendant on its possession.
By the act of the general assembly of Maryland, passed in 1704, the vestry of every parish in the State, are empowered, upon the same principles that the Canal Company are authorized to exercise a similar right, to condemn two acres of land, for the building of a church or chapel of ease. And by an act passed in 1719, for the encouragement of iron manufacture, any person or persons were authorized, in like manner, to procure the condemnation of sites for forge mills, and iron works, each condemnation to embrace 100 acres of land. If the doctrines of the appellants be sustained, it follows, that, by these acts of assembly, the right of eminent domain over all the lands in the State was put in abeyance, until every suitable site for such a purpose should be improved, which will not be the case, in all probability, for centuries to come. The State, therefore, after the year 1719, had no more power to pass any right of eminent domain to the Chesapeake and Ohio Canal Company, than after the passage of the charter of that company, it could communicate it to the Baltimore and Ohio  [**427]   Rail Road Company. Their argument proves too 

 [*245]  much; it annihilates their own rights, whilst it destroys those of the rail road; it involves both companies in one common ruin. The same remarks are applicable to the act of assembly passed in 1704, to encourage the building of water mills, by condemning ten acres of land for each site. And, notwithstanding these acts of assembly, that banished to the clouds or the moon, the right of eminent domain, which only returned to earth, as the exigencies under those laws demanded its re-appearance, yet, at every session of the general assembly, from the year 1704, to the present time, that power had been exerted in opening public highways, &c.; and such, the exercise of this power, had produced at various times before the legislature, in court and out of court, controversies of the most important and warmly contested character; yet, wonderful to tell, neither the legislature by whom the laws were enacted, nor the lawyers, nor the judges by whom they were scrutinized and sustained, until the present trial, ever dreamed of the discovery, now made: that all their proceedings were erroneous, being founded on the right of eminent domain,  [**428]  which did not exist in the State, having taken its flight from Maryland in 1704.
The appellants say, it is comparatively unimportant "when and how the company was organized as a body corporate, and acquired a capacity to be fully invested with their corporate franchises; whether in November, 1827, when the required quota of stock was subscribed; or in May, 1828, when the subscriptions of the district corporations were confirmed by Congress;" their rights take date not from that period, but from the day of the passage of the charter of incorporation; and are, to all intents and purposes, the same, as if the corporation had been brought into immediate existence, by the charter itself. This is extending the principle of "relation," in utter disregard of the reasons on which it is founded; and to an extent which is authorized by no previous adjudication. The cases to which it is applicable, as I have always understood the rule; are where 

 [*246]  clear equitable rights are acquired, which cannot be defeated by him, in whom the legal title remains, but by an act of fraud or injustice; there a junior grant, in conformity to such prior equities, shall exclude or postpone a [**429]  prior intermediate grant. To illustrate the principle, by the case of common occurrence in Maryland: A locates his warrant on Black Acre; returns his certificate; pays his composition money; but omits to consummate his title, by obtaining his patent. B afterwards executes his warrant on the same land; and, having complied with all the requisitions of the land office, receives his grant. A patent subsequently issues to A on his certificate. In contesting their rights, standing alone upon their patents, B has the prior and better title: but the court, looking to the anterior equities of A, regard his patent as coeval therewith; and to prevent fraud or injustice upon the principle of equitable "relation," the prior equity and junior grant have precedence of the junior equity and senior grant. But what equities had the appellants, simply on the passage of their charter? What fraud or injustice, would they have suffered by a repeal of the law, or any such modification of it, as the legislature might have seen fit to adopt? None. No rights, either legal or equitable, were conferred on the appellants, but by the requisite acts done in conformity to the act of assembly. Then their [**430]  equities first arose; and to no more remote period, upon any principle of relation, can they possibly be carried. The appellants seek to apply a new doctrine of "relation," never heretofore recognized, which needs no prior equity to support it: thus dispensing with that which has always heretofore been of the very essence, the fundamental basis, of the rule. And what injustice, inconvenience, and confusion would result from such an innovation, may readily be imagined, by its application to the case before us, under a probable variation of its circumstances, which would not in any wise change the principle. Suppose the Chesapeake and Ohio Canal Company not to be in existence until ten years hence and 

 [*247]  that during that period, under the faith of their charter, the Rail Road Company had completed their entire enterprise to the banks of the Ohio. What, upon this new and extraordinary doctrine of relation, would be their predicament? Why, the Canal Company, then, for the first moment, coming into being, might locate their works upon the identical ground occupied by the rail road, from Parr's Spring Ridge to the waters of the Ohio, and not allow the  [**431]  Rail Road Company one dollar, for the millions expended in the execution of their work. If such be the doctrine of relation, founded on equity, I am at a loss to conceive, what would be termed "relation," founded on iniquity.
But if "relation" be admitted into the case, to what period are the rights of the Canal Company to be translated? Is it to 1823, when Virginia passed the law, or to 1824, when Maryland adopted it, or to the date when Congress sanctioned it, or to the time when any of its supplements were passed? The difficulties and absurdities attending an affirmative answer to either of these questions, unequivocally show, that, to neither of those periods can it be carried: but, that you must go back to the common sense of the case, and fix the time of their acceptance of their charter, as the origin of their rights. The legal subscription of the requisite amount of stock being such acceptance.
It is contended, also, that this charter making the canal a public highway, forms an exception to the general rule applicable to such subjects; and must be regarded as a dedication to public uses: and therefore, effects the immediate transit of the powers of the [**432]  State. The answer to this suggestion is the same, that was given to the alleged operation of the principle of abeyance. The doctrine of the dedication to public uses is founded on the same necessity, which must exist to support abeyance. It is only resorted to, where the thing granted was intended to pass immediately from the grantor; where its remaining in him, was utterly inconsistent with the grant. Is that the case before us? Was any thing more designed by the legislature, than 

 [*248]  an eventual grant; a transfer of rights upon the formation of the corporation? Until that event occurred, nothing passed; neither the operation of the grant, in the fullest extent of its terms, and expressions, nor the intention of the grantors, nor any principle of law, require that it should. But would this discriminating feature, if admitted, be of service to the appellants? Concede, that so far as the public are concerned, the rights of the State vest in them. Does that exclude the power of future legislation on the subject? Nay, is it not the very circumstance that gives to the legislature full power and control over it? It is a concessum in all the cases of this character, where the [**433]  power of the legislature has been drawn in question, that over a grant affecting public rights and privileges, the right of future legislation is undeniable, and uncontrolled. The constitutional prohibition, as to impairing the obligation of contracts, has no application to such a grant. It is only to private, not rights in their nature public, that this salutary safeguard was designed as a protection. If then, for these public purposes, the rights of the State passed into immediate dedication, at the date of the act of assembly, there being no intervention of private vested rights to prevent it; the legislature might at any time resume its powers, or pass any law upon the subject, which its discretion might suggest. Until such private rights intervene, this dedication to public purposes, which is but the creature of the legislative will, exists but at its pleasure. Suppose, by act of assembly commissioners were appointed, to condemn and open a designated road, and hold the same for ever after, as a highway, for the use of the public. Could not the legislature, by any subsequent law, limit, change, or repeal their powers? It cannot be denied.
I have been insensibly drawn into unnecessary [**434]  prolixity and detail, in the examination of this part of the case, because it appeared to me from the efforts made upon it by both parties, that it was considered the prominent point in 

 [*249]  the cause. The other questions, I shall treat with more brevity.
Assuming, that I am right in the views I have thus far taken of this case; the pretensions of the appellant are attempted to be sustained on the ground, that Maryland, Virginia, and the United States, entered into a contract, and were bound to each other, that the Chesapeake and Ohio Canal might be made upon the terms stipulated in its charter; and that any attempt, therefore, by either of those contracting parties, separately to repeal, change, or modify, any of its provisions, was unconstitutional and void, as impairing the obligation of a contract. If in truth, there be such a breach of faith on the part of Maryland, as is complained of, it might, with some show of reason, be said that it is Virginia only, which has a right to complain. The Chesapeake and Ohio Canal Company having accepted their charter, with a knowledge of its qualification, as made by Maryland, stands not with a good grace [**435]  before a court of equity, as the voluntary asserter of Virginia's rights: who for ought that appears, acquiesces in those acts, which form the subject of complaint. Nay, she has actually assented to them, by passing the rail road charter. Having accepted the charter in the condition in which they found it, they have no equities, by which they can be subrogated to the rights of Virginia, if she had any. The United States not having complied with the conditions, on which alone Maryland consented to be bound, until after the alleged violation of the contract, there would be but little equity on their part, to which the Canal Company could fall heir.
But where is the evidence, that such a contract was ever made by these sovereign States? It is, say the learned counsel, the necessary inference to be drawn from their acts of legislation. This is not the mode in which independent governments make compacts. Their engagements with each other, are not entered into in the same loose, unauthentic manner, in which the ordinary transactions of mankind are conducted, where much rests on parol, and depends 

 [*250]  on inference and conjecture. But all their contracts are matters [**436]  of express stipulation, formally drawn up by learned and skilful agents, fully disclosing the character of their agreements; and for the most part, preserved in their public archives, as matters of record. Whether there be a contract between them, is never a question depending on remote inference, or vague implication; but is ever a subject of express declaration. Where then is the evidence, of the negotiation on which this alleged compact is founded? It is not even insinuated that it exists any where, unless it appears on the face of their acts of legislation. Does it so appear; let me ask? Is there a word or syllable in any of those laws, which intimates such an agreement? Does the preamble recite it? Do any of the enactments affirm it? Or is there, in their numerous statutes relating to this canal, a word or sentence, which does not receive its full and natural import upon the assumed fact, that there was no such compact? And are not all their enactments in relation to the canal, with their various forms and qualifications, consistent and natural, as the regular offspring or result of spontaneous, concurrent legislation, modified by the peculiar circumstances, and combination of [**437]  interests, in which the parties were situated, independently of all compact on the subject? But stamp on their acts the character of contract, and how stand the legislatures of Virginia and Maryland? Convicted of a wanton and wilful violation of the constitution of the United States, which they had sworn to support. They not only, do not ask the assent of the United States to their compact, as it is now called, but expressly declared that Congress shall not assent to their act upon any other authority, than "as the legislature of the District of Columbia." And the Congress of the United States, represented as one of the three sovereign parties to this unconstitutional compact, and consequently, alike cognizant of its nature and unconstitutionality, in violation of their duty and their oaths," as the legislature for the District of Columbia, sanction and affirm it. Can more conclusive evidence be 

 [*251]  desired, that there never existed such a contract as is alleged, between the three governments, than the bare statement of the consequences, which would follow such an unnatural presumption? Could any thing short of the most irrefragable proof of [**438]  the fact, induce any court of justice, much less this grave and reflecting tribunal, to cast such an imputation, not only on their own legislature, the high and predominating co-ordinate branch of their own government; but upon the legislature of the Union, and also upon that of one of the most enlightened States in it?
It has heretofore been a maxim, as well of ethics as of law, that presumptions are to be raised in favor of innocency of intention. But in this case, it does appear to me, that we are called on, in favor of the Canal Company, to invert the order of every thing which stands in the way of the accomplishment of their designs.
It is urged, that it must be the contract of the sovereign States, because each State legislates for the canal, through its whole extent: as well on subjects within its own limits and jurisdiction, as those in other States through which it passes. But is this conclusion warranted by the charter? Did Maryland intend, in virtue of her legislation, to give title to the Chesapeake and Ohio Canal Company, to lands or other property in Virginia, or vice versa? Where the necessity? What the object of the States in mutually delegating,  [**439]  or exercising such an anomalous, if not incommunicable power: even upon the supposition, of the canal charter, being a compact between them? None can be suggested. The common sense, the legal interpretation of their acts, is, that the legislation of each State should operate to the extent of its limits, and no farther, as regards the rights and powers transferred to the Canal Company. But that each State, as they well might do, (independently of all authority, interchangeably communicated,) did impose restrictions, by way of condition, extending beyond its territorial limits. As for example; that no higher toll should be exacted on any part of the canal, than that specified in the 

 [*252]  law. With as much propriety, may it be said, that the rail road charter is a compact between the States, through which it must pass; the 4th section, enacting, "that the president and directors of said company shall be, and are hereby invested with all the rights and powers necessary to the construction and repair of a road, from the city of Baltimore to some suitable point on the Ohio river, to be by them determined;" the 15th section, authorizing the acquisition of title to the site,  [**440]  &c. of the road, by agreement or condemnation, through the entire route; and the 18th section, containing a similar restriction, as to tolls; and providing, that the capital stock of this company "shall be exempt from the imposition of any tax or burden by the States, assenting to this law." Thus continuing the similitude by showing, that the assent to it, was to be given by other States than Maryland. And Virginia did assent to this law. Yet I believe the idea never entered the imagination of man, that a compact was thus formed between Maryland and Virginia.
So far from the restriction in the canal charter, as to tolls, indicating a contract between the States, because each, in passing the law, thus undertakes to establish a rate of tolls, beyond its proper territorial jurisdiction, it shows the reverse. If the charter was a compact between the States, then the limitation in its 10th section, that the tariff of tolls shall not exceed "an average of two cents per ton per mile;" was all sufficient to prevent its ever exceeding that limit: and bound, and protected all the parties. No further provision on the subject was necessary: because, it being the contract of the [**441]  three sovereigns, the assent of all was indispensable to any change or modification of its terms. And had it been attempted, under the legislative sanction of either of the States, the article of the constitution of the United States, forbidding the State to pass a law impairing the obligation of the contracts, would at once have checked such unconstitutional exercise of power. But not having entered, nor designing to enter into any such compact; and 

 [*253]  knowing, therefore, that without some further enactment, the company could by consent of any of the States, within their respective limits, raise or alter the tolls, in any way they pleased, they wisely added the following prohibition, to the 14th section; "and no other toll or tax whatsoever, for the use of the said canal, and the works thereon erected, shall at any time hereafter be imposed, but by consent of the said States, and of the United States." Construe this a compact between the States, and this sage addition to their law becomes superfluous, unmeaning tautology. Can you, under circumstances like the present, upon any rule of construction ever heretofore adopted, cause it to be so regarded? The compact in [**442]  this section, and throughout the charter, is not between the States themselves, but between the Chesapeake and Ohio Canal Company, when it shall spring into life, as the one contracting party, and the three several States or sovereignties, as the other. If a compact between the States themselves had been intended, the application for the assent of Congress, agreeably to the requisition of the constitution of the United States, would have followed as a matter of course. For the necessity of such assent, authorities need not be cited. If such assent be necessary to a cession of part of its territory, by one State to another, as has been adjudicated, and is admitted; it is equally necessary, when two States enter into a contract, by which they bind themselves to each other, to cede to a corporation, highly important streams of navigable water within their limits, and authorize the cutting of canals, &c. in either State: and for that purpose, to exercise the right of eminent domain in both States.
Suppose A, B, and C to be proprietors of three contiguous farms, through which D is about to construct a turnpike road, or any other improvement, that if completed throughout, would [**443]  be highly beneficial to all; but, if not so completed, so far from being a benefit, it would be injurious to those through whose lands it might be made; and might be the means of defeating the accomplishment of some similar 

 [*254]  work, which would otherwise have been ultimately effected. D first applies to A, for permission to make the road, who grants it on condition, that no greater toll than one cent per mile be demanded: and further, that B and C assent to the making of the road through their farms on the same terms. B and C on being separately applied to, give such assent. Between A, B and C, no communication on the subject, of any nature or description ever passes. Before the work commenced, A by the consent of D, or under circumstances in which D's rights were not violated, withdraws his permission. Can he not lawfully do so? Has B or C any right to complain, that he has broken any contract, made with them? Unquestionably not. Can the human mind, aided by all the discriminating acumen and subtlety of the profession, draw a distinction in principle, between the case supposed, and that we are now called on to decide, except that the latter is much the stronger case? What [**444]  A, B and C did, Virginia, Maryland, and the United States have done; and nothing more. The decision in both cases, must be the same. In confirmation of this idea of a contract between the three sovereigns, it may be asked; if after the completion of the said canal, Congress had repealed their law, assenting that a lateral canal be made by Maryland through the District of Columbia, could not Maryland have proceeded to make such lateral canal, in despite of such repealing law, on the ground that it was a nullity, being a law impairing the obligation of a contract? Unquestionably it might. But what contract did it impair? Not any contract between Congress and the State of Maryland; for none such existed; but the contract between Congress and the Canal Company. And the State of Maryland having the right to make such lateral canal, by their contract with the Canal Company, and Congress having been bound by their contract with the Canal Company, to permit Maryland to make such lateral canal, in contemplation of a court of equity, to prevent circuity of action, Maryland is subrogated to all the rights of the Canal Company [**445]  

 [*255]  on this subject, and standing in the stead thereof, may assert the unconstitutionality of the repealing law of Congress. Or may, in such character, to the extent of their injury, prosecute in a Court of Chancery, any other remedy for the breach of such contract, which the Canal Company could there maintain. This is so familiar a principle of a court of equity, that to sustain it by further illustration or authorities, cannot be necessary. But Maryland could be relieved against this repealing law, either in a court of law or equity, on the ground of fraud, (which would avoid it,) independently of any contract between Congress and Maryland. Congress had by contract with the Canal Company, agreed that Maryland should exercise the power. Upon this assent the conditional contract of Maryland with the Canal Company became absolute; the Canal Company, as they were authorized to do, finished the canal. A subsequent revocation of this power by Congress, independently of all idea of their contracting with Maryland, would be a rampant fraud, which no court of law or equity would tolerate. Let us imagine, that in the preceding hypothetical [**446]  case of A, B, C and D, there was not only no contract between A, B and C, but they severally refused to hold any intercourse or contract in any shape, with each other yet, after the road was finished through the farms of A and B, that C refused to permit D to progress with the road through his farm, to the great injury of A and B. Can it be doubted, that A and B, independently of contract between them and C, but upon the several contracts by A, B and C, with D, might obtain an injunction against C, to prevent his obstructing D in the completion of the road. It is a proposition that admits not of denial. So if, under the repealing law of Congress, any of their agents, or those who were bound by their legislation, prevented the opening of the lateral canal, in the mode prescribed by the repealed acts of Congress, a similar injunction would issue against them.
In confirmation of the remarks I have made, as to the clear and unambiguous language used by sovereign States, 

 [*256]  in contracting with each other, or in consummating a contract by legislation, look to the act of assembly of Maryland, passed at November session, 1785, ch. 1; and, comparing it with the charter [**447]  of the Chesapeake and Ohio Canal Company, see whether the evidence of compact, on the face of both laws, be in character the same. As to the canal charter, the inference of compact is reached by a forced unnatural construction, not deducible from the objects of the law, or the circumstances under which it passed, nor necessary to gratify one word or expression in it; and involving consequences, which every principle of courtesy, candor, and sound judicial interpretation, prompt us to avoid, by the rejection of such an inference. But turn to the former law, and the compact is so conclusively demonstrated by its title, its preamble, the terms and expressions of its enactments, that nothing is left for inference or conjecture. This is the mode in which sovereign States treat, or form compacts with each other. The title expressly announces "the compact;" the preamble most minutely recites it; and the enacting clause ratifies and confirms it, and declares that, "as soon as the said compact shall be approved, confirmed and ratified, by the general assembly of the commonwealth of Virginia, thereupon, and immediately thereafter, every article, clause, matter and thing, in the said [**448]  compact contained, shall be obligatory on this State, and the citizens thereof, and shall be forever, faithfully and inviolably observed, and kept by this government and all its citizens, according to the true intent and meaning of the said compact; and the faith and honor of this State is hereby solemnly pledged and engaged to the general assembly of the commonwealth of Virginia, and the government and citizens thereof, that this law shall never be repealed or altered by the legislature of this government, without the consent of the government of Virginia." If the same inference of compact is drawn from these two acts of assembly, so utterly dissimilar, in that respect, in every feature and provision, the old legal axiom, "et sic de 

 [*257]  similibus," should be changed, and it should now be "et sic de insimilibus."
The appellants have also insisted, that their charter, upon the assent to be given, in the mode prescribed by the Potomac Company, was a contract between the Potomac Company and the States, of which the charter of the Baltimore and Ohio Rail Road Company was a violation. How many contracts, this charter, so prolific of contracts and litigation,  [**449]  may be alleged to contain, when passing through the ordeal of such professional ingenuity as has been applied to it, on the present trial, I am at a loss to conjecture. But, it appears to me, that the same arguments which have been urged against a compact between the States, for the most part, apply with equal force, against any such implication with the Potomac Company. The assent of that company, in reason and justice, can be regarded in no other light, than as an offer of a bargain to the Chesapeake and Ohio Canal Company, which, like all similar propositions, until accepted, was revocable, at the pleasure of the Potomac Company. To construe it otherwise, would be an act of unexampled, cruel injustice to that company. The Chesapeake and Ohio Canal Company could not be formed, until the Potomac Company had given their assent; they might not have been organized for a hundred years afterwards. Yet during all this period, the Potomac Company were to go on, expending their money in removing obstructions in the river, and improving its navigation by locks and canals; and, when, perhaps by dint of these expenditures to facilitate transportation, they are about to [**450]  be reimbursed, without the power of extricating themselves from their dilemma, they are to be divested of all the fruits of such their labors and disbursements, and for which no reimbursement or indemnity in any shape, is allowed. And what equivalent are they to receive for this? A mere possibility; remote and improbable, as to any beneficial result; the chance, that after all other stockholders receive ten per cent., there may be 

 [*258]  something left for them. Some possible dividend may be made on their capital stock, but nothing on such their disbursements. It may be said, that they ought not (their assent being given) to have continued such expenditures. But what was their alternative? Why, to forfeit their charter, and all that had theretofore been expended. Draw from such their assent, the inference of contract, and they cannot escape the consequences I have mentioned. Should a court of equity, as we now are, be astute and technical, in seeking out a construction fraught with such injustice?
It has also been insisted, that, a subscription to the stock of the Chesapeake and Ohio Canal Company having been commenced, no matter to what amount such subscribers had acquired [**451]  rights, which could not be impaired by any act of the legislature of Maryland, affecting the terms and conditions on which such subscription was made. This is true, so far as regards the coercion of the subscribers, to comply with the obligations assumed by subscription, but no further. There is no contract, under the charter of that company, between the State and the subscribers, qua, individual subscribers. The only contract that could arise, was between the State and the Chesapeake and Ohio Canal Company, when brought into being by the subscription of the requisite amount of stock. Before that took place, every thing was in fieri. Then, and not till then, are the legislative powers of the State suspended by the constitutional interdiction; then, and not before, does it impliedly contract, not to revoke, or impair the rights and privileges it has granted. To this extent, and no further, have the Supreme Court gone in the Dartmouth College, and other cases on the subject. The acts, done at the time of subscribing for stock, are, of themselves, nothing more than a compliance with the mode, by which the assent, to become members of the corporation, is given; and [**452]  never were designed to create a contract between the State and the individual subscribers. With as much propriety, may it be said, that, if any article of property 

 [*259]  were offered at public auction, and by the terms of sale, no bid were to be received, unless he who made it, in assurance of his punctuality, should deposit with the auctioneer, one dollar,--that upon such bid being made, and payment of the dollar, the owner could not decline proceeding with the sale, or offering it upon new, or different conditions.
It has been said, that "the charter of the Chesapeake and Ohio Canal Company, was granted upon individual application; that individuals had spent their time and money, in procuring the information, upon which the legislature acted, in granting it: and that this expenditure was a consideration, which was sufficient to make the contract binding on the State, from the date of the charter; that these individuals were, in fact, the parties interested, and not the persons who subsequently subscribed, and became corporators under the law." This argument is, I believe, at least entitled to the merit of novelty; but, it passes no encomium upon the strength of a cause,  [**453]  which, in a court of last resort, finds it necessary to invoke it to its aid. If the State be thus bound to these persons, then, have they, under the canal charter, rights above all others: and consequently, a prior right of subscription? Yet no such priority exists. Or if so entitled, the contract, I presume, is mutually obligatory, and they are bound to become members of the corporation. Can they be compelled to become so? And how? Is it possible, that this court, on grounds like these, would venture to declare an act of the general assembly of Maryland, unconstitutional?
But it has been alleged, that although the appellants should fail on all the other grounds, on which they have attempted to sustain their asserted priorities; yet, that they are clearly sustainable, under the powers long since granted to the Potomac Company, and to which they have been substituted. Before I enter on the examination of this question, let it be premised, that what I say on this subject, relates not to the rights of the Potomac Company, or 

 [*260]  their successors; to the bed of the river, or to any canals or works which they have constructed. The location of the rail road, as I understand [**454]  it, interfering with no such rights. The preliminary inquiry arises, what was the character and design of the Potomac Company's charter? What were the powers granted? And for what purpose given? On these heads a glance at the act of assembly would satisfy any reasonable mind: but to obtain demonstration on these subjects, all that is necessary, is to compare it with that of the charter of the Chesapeake and Ohio Canal Company. The preamble to the charter of the Potomac Company gives us the design of its authors, in the following words: "Whereas the extension of the navigation of the Potomac river, from tide water to the highest place practicable on the north branch, will be of great public utility: And whereas it may be necessary to cut canals, and erect locks and other works on both sides of the river," &c. That a continuous canal between the termini of this navigation, was not designed by the legislature: that a delegation of the powers necessary to its construction, was never intended, is to my mind a proposition so manifest, that I can hardly prevail on myself to believe, that arguments are necessary to throw light, as to this subject, on the mind of the [**455]  most superficial interpreter of the law. The preamble declares, "it may be necessary to cut canals." For what? "The extension of the navigation of the Potomac river." And in conformity herewith, the 4th section of the law transfers to the company the authority "to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary for opening, improving, and extending the navigation of the said river." The 10th section enacts, that the said river, and the works to be erected thereon, in virtue of this act, when completed, shall forever thereafter be esteemed and taken as a public highway, on payment of the tolls imposed by this act. The 17th section declares, "that the tolls herein before allowed to be demanded and received at the nearest convenient place below the mouth of the south branch, are granted, 

 [*261]  and shall be paid on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the place on the north branch, at which a road shall set off to the Cheat river, agreeably to the determination of the general [**456]  assemblies of Virginia and Maryland, to and through the place which may be fixed on, below the mouth of the south branch, for the receipt of the tolls aforesaid; but if the said river is only made navigable as aforesaid, from Fort Cumberland, to and through the said place below the mouth of the south branch, then only two-thirds of the said tolls shall be there received; that the tolls hereafter allowed to be demanded and received at or near Payne's falls, are granted, and shall be payable on condition only, that the said Potomac Company shall make the said river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the said place of collection, near the mouth of the south branch, to and through Payne's falls aforesaid; that the tolls hereinafter allowed to be demanded and received, at the Great Falls are granted, and shall be payable on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, from Payne's falls to the Great Falls, by vessels drawing one foot water, and from the Great Falls to tide water; and shall, at or near the Great  [**457]   Falls, make a cut or canal, twenty-five feet wide, and four deep, with sufficient locks, if necessary, each of eighty feet in length, sixteen feet in breadth, and capable of conveying vessels or rafts, drawing four feet water at the least; and shall make at or near the Little Falls, such canal and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid, into tide water, or render the said river navigable in the natural course." And the 18th section provides, "that in case the said company shall not begin the said work, within one year after the company shall be formed, or if the navigation shall not be made and improved between he Great Falls and Fort Cumbertand, in the manner herein 

 [*262]  before mentioned, within three years after the said company shall be formed, that then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation, through and from the Great Falls to tide water as aforesaid, within ten years after the said company shall be formed, then shall all the interest of said company, and all preference in their favor,  [**458]  as to the navigation and tolls at, through, and from the Great Falls to tide water, be forever forfeited." Adverting to the language of this charter, that the thing to be made navigable and a public highway forever, was the river of one foot depth: to the time within which the work was to be completed, viz: in three years, from the Great Falls to Cumberland; and ten years, from the Great Falls to tide water; (thus giving where one or more canals were to be cut, more than thrice the time that was allowed to complete the residue of the work, where no cannalling of any moment was required or anticipated, but where the distance was ten times as great, and the labor and expense necessary to the completion of a continuous canal, tenfold greater,) and adverting to the power given to cut canals, which was of such only, as were "necessary" to render the "river" navigable; to the original subscription $ 220,000, (by which it was contemplated to accomplish the object, for which the company was organized,) an amount insufficient to construct the canal for three miles, at many of the difficult passes between the Great Falls and Cumberland. Can it be believed that [**459]  the design of the legislature was, that a continuous canal should be made throughout the whole course of the navigation to be improved? Or that they gave such a power, when they authorized the cutting of "such canals" as were "necessary" to make the "Potomac river," a navigable public highway. When such power is given, the language of the legislature discloses their intention. As in the preamble to the Chesapeake and Ohio Canal Company's charter, the first words of which are, "whereas a navigable canal, from the tide water of the river 

 [*263]  Potomac, in the District of Columbia, to the mouth of Savage creek, on the north branch of said river," &c. "will be a work of great profit and advantage," &c. Not a work throughout the law, about the extension or improvement of the navigation of the "river." The cutting the continuous canal, and erecting its appurtenant works, were objects for which the legislature designed to provide: and for their accomplishment, ample powers were given.
By the 13th section of the charter of the Chesapeake and Ohio Canal Company, that company are invested with all the property, rights and privileges of the Potomac  [**460]   Company, "in the same manner and to the same effect as the said Potomac Company now hold, possess, and occupy the same by law." In no other way, for no other "effect," or purpose, can the Canal Company exercise the "rights and privileges" of the Potomac Company, but for the effects and purposes, contemplated by the charter of the Potomac Company. The same interests and powers, and nothing more, accrue to the Canal Company, exerting the "rights and privileges of the Potomac Company" in cutting an occasional canal, or making any improvement in the navigation of the river, as would, before the charter of the Canal Company, have accrued to the Potomac Company, performing the same work. Although the property of the Potomac Company passes to the Canal Company, to be used as they see fit, taking care that their rights are not forfeited under the provisions of the Potomac charter; yet they have no right under that charter to cut a canal, not necessary to improve the navigation of the river as there provided for, but with a view of using it as the canal authorized by the charter of the Chesapeake and Ohio Canal Company. Such a fraudulent device [**461]  to over-reach the prior rights of the appellees; such deceitful trickery, would not for a moment be tolerated by a court of equity. If, after completion of the Chesapeake and Ohio Canal, or pending the execution of the work, the Canal Company keeping the "river Potomac" navigable, as required by the Potomac charter, were to 

 [*264]  collect the tolls authorized thereby; their right to do so could not be the subject of a doubt. If, to effectuate such navigability, it should be necessary to cut a canal at any difficult pass of the river, (putting out of view, the time limited for the completion of their work,) their power to do so could not be brought in question. But what tolls could be demanded for the use of such a canal? None other than those specified in the Potomac charter. Was it the intention of the Chesapeake and Ohio Canal Company to collect, for the use of that part of the canal they were locating, in collision with the location of the Baltimore and Ohio Rail Road Company, no other tolls than those sanctioned by the Potomac charter? Was it their design, merely to cut a canal, necessary to make navigable the "river," in the mode contemplated [**462]  by the canal charter? If so, then, it may, in fairness be said, they were acting under the powers, possessed by the Potomac Company. But would the candor of their counsel permit them to throw out such an insinuation? Would the Canal Company for a moment, entertain the idea of making the canal from the Point of Rocks to Cumberland, (the battle ground) on such a condition? Nobody can believe it. Suppose the Canal Company, to draw the whole trade of the river into the canal, (after its completion) or for any other motive, were to suffer obstructions to accumulate in the river, until it ceased to be navigable, as provided for in the Potomac charter, and that charter, in consequence thereof, by judgment of a court of law, were forfeited; would the Canal Company, thereby, lose all title to that part of the canal, between the Point of Rocks and Cumberland. If it were made under the powers given by that charter, the consequence is inevitable; it must be conceded. Do the Canal Company admit it? They would hesitate long, before they did so. The undeniable fact is, that the Canal Company were locating that grand canal, provided for by the Chesapeake  [**463]   and Ohio Canal charter, and not any canal, contemplated by the charter of the Potomac Company. 

 [*265]  How then can they be regarded as acting, under the powers delegated by the Potomac Company's charter? In my humble apprehension, it is impossible to sustain them, under this, their last expedient to defeat the well established rights of the Baltimore and Ohio Rail Road Company. To do so, would be to strain, beyond all reason, the letter of the statute, for the purpose of violating its spirit and obvious import: to give countenance; nay, encouragement, to fraudulent contrivances and ingenious deceits, which they have never yet received in any tribunal of equity.
The inquiry on this point, the answer to which, settles this question, is most simple. Were the acts of the Canal Company, against which the injunction issued in this case, done in execution of the enterprise contemplated by the Potomac charter? or in execution of the great work, provided for by the charter of the Chesapeake and Ohio Canal Company? If the former, then the Potomac Company being first legally constituted, it may be contended, that they are entitled to priority in the selection [**464]  and appropriation of the route; and the injunction granted to the Rail Road Company should be dissolved. But, on the other hand, if the acts of the Chesapeake and Ohio Canal Company, complained of, were done, not in completion of the works provided for by the charter of the Potomac Canal, but in execution of that stupendous canal, alone contemplated, and authorized by the charter of the Chesapeake and Ohio Canal Company, then the Rail Road Company, being the senior corporation, and having first made their location, are clearly entitled to all the priorities they claim; and the injunction of the Chancellor should be made perpetual.
But, suppose the Potomac Company had, as insisted, originally, under their charter, a power either to have made a continuous canal, or to have improved the navigation of the river by occasional canals, or wholly by sluice navigation. Having once made their selection of the mode, and exercised, as they have done, the right of eminent domain, 

 [*266]  in cutting occasional canals, that power cannot be again exerted, in the making of a continuous canal. The desired improvement being made in one mode, this transcendent power cannot [**465]  afterwards be exerted in affecting it in another; otherwise, a continuous, and an occasional canal, might both be cut through the lands of the same individual: an invasion of private rights, a wanton oppression, which the public exigencies at that time, did not require, and which, the framers of the Potomac charter never designed to give to that company.
Feeling entire confidence in this view of the subject, that no such power was derived from the Potomac Company, as that which brought the Chesapeake and Ohio Canal and Baltimore and Ohio Rail Road Companies in collision, I deem it unnecessary to examine the much vexed question, whether, if the Potomac Company originally possessed such a power, it could be exerted after the time limited by the 18th section of their charter, for the completion of the improvement of the navigation of the river.
On the part of the appellants, it has been further urged, that the acts of the general assembly of Maryland, in relation to the route of the rail road, conferring a general power of location, uncontrolled by localities, are to be so restricted, in their interpretation, as to exclude the right of interfering with the site of [**466]  the canal; which, by its charter, is specifically located, on the eastern bank of the Potomac. But this position is untenable, because it is wholly unfounded, in fact. It is not true, that in the Chesapeake and Ohio Canal charter, there is any specific location given to the canal, confining it to the eastern or western bank of the Potomac, or to either of the banks of that river. The 19th section of the law, which alone defines the route and termini of the canal, declares, "that the first, or eastern section, shall begin at the District of Columbia, on tide water, and terminate at, or near the bank of Savage river or creek, which empties into the north branch of the Potomac, at the base of the Alleghany mountain." 

 [*267]  Can human ingenuity torture this into any more definite location of this section of the canal, (which only, is involved in the present controversy,) than as fixing its termini? Can it be possible, judicially to determine, that the true import of these expressions, is, that the canal shall commence at tide water, in the District of Columbia, and thence follow the ravine of the Potomac to the bank of Savage creek?  [**467]  Is there any think in the law, or the reason of the law, that could thus fetter its construction? Suppose it had been ascertained, by actual surveys and calculations, made by experienced engineers, aided by the superior and extended lights of science of the present day, as applied to the art of canalling; that, after receiving into the canal the waters of the Potomac, at the Great Falls, instead of following the sinuosities of that river, by means of its tributaries, and through the interior of the country, on its eastern shore, the canal could be conducted to the bank of Savage river, by one-half the distance--at one-third of the expense of labor and money--and in a way to give transportation to three times the quantity of produce, that it would otherwise have borne; could the power of the company, so to construct it, be the subject of a momentary doubt? Admit this power, as you must do, and all this notion of a specific location of the canal, by its charter, of which we have heard so much, vanishes in a moment. For, if the canal be located by its charter, the company possesses no discretion to depart from it. Nor does the preamble, as was supposed by the argument, sustain,  [**468]  in the slightest degree, this doctrine of specific location. Every letter of it is complied with, in exercising the discretion used in the suppositive case, I have suggested.
But it is alleged, that this specific location of the canal by its charter, is demonstrated, by reference to that mass of surveys, reports, dissertations, resolutions, &c. with which the record has been loaded. Or, in other words, that we are to collect the meaning of the legislature, not from the terms used by them, which are explicit, unambiguous, and 

 [*268]  full in a pre-eminent degree; but by imputing to them a knowledge of facts, of which there is no evidence, (nor indeed could there be,) that they ever possessed, or if they did, upon what part of it they acted; we are to infer they meant the very reverse of what they have said. This would be stretching the power of judicial legislation, rather farther than the most zealous admirers of the maxim, "est boni judicis ampliare jurisdictionem," has ever yet extended it. It would be enacting, not expounding the law. Conceding, however, that we possess the power to do so; and, that upon these voluminous documents, we are now about to declare, the legislature [**469]  to have done, what, according to our opinion, they ought to have done; and what is that? Why, to give to the Canal Company that discretion which they ought to possess, of locating the canal where the lights of improved science, expediency, the great interests of the community, and the successful accomplishment of the enterprize, would dictate: and not tie them down to a location recommended by resolutions passed by conventions, less interested and enlightened, perhaps, than themselves: or recommended by surveys made ten, twenty, or fifty years before. This is the course, pursued by the legislature in this instance; and according to my view of it, is the only action on the subject, which an independent, and enlightened legislative body could have adopted. Indeed, from these documents, no certain, and specific location of the canal could well have been made, as scarcely any two of them agree in that respect. Some confining the canal, on one side of the river Potomac; some on another; some crossing the river often; some seldom; and perhaps some in one place, and some in another. Had a definite location been given to the canal, it would have been of a piece, with the practice so [**470]  generally complained of, in locating turnpikes, and great public highways, with calls for all the little towns or villages, in the vicinity of which, they might probably pass. Had the legislature intended to make a peremptory location of the canal, they would have used apt words for 

 [*269]  that purpose; as they did, in providing for the second or western section, (in the clause immediately following that before recited;) which say they, "shall commence at the said termination, and extending along the valley of Savage creek, so far as the same," &c. In not doing so as to the first, and doing so as to second, they distinctly announce the discrimination they designed to make, in the locations of the two sections. The utter silence of the law, as to any designated site, of the first section of the canal; its omission to select or adopt any of the numerous surveys, that had been made; is conclusive of the fact, that the Canal Company were left, as they should have been, to an unlimited freedom of choice. In which, they might be influenced by every circumstance, tending to control their choice: whether it related to the obstructions to be removed; the time and expense, necessary [**471]  to be consumed in doing so; the length of the route; the commercial or transporting facilities to be afforded; their pecuniary ability to accomplish the object, or any like consideration.
But it is insisted, that, although, this court should be of opinion, there is by the charter of the Canal Company, no precise location of the canal, confining it to the margin of the river Potomac, yet that it is specifically located in the territory, watered by the Potomac, and attaches upon all the lands within such territory, and so continues, until the actual location of the canal. To recognize the principle of abeyance, as asserted, would be mercy to the landholders of that immense section of country; when we advert to their condition under the notion of this immense canal: whose location occupies the space for a sea, instead of a canal. The effect of abeyance of the power of eminent domain, would be to prevent the laying out of public highways, or the condemnation of land, for any improvement whatever: in the individual improvement and enjoyment of their lands, the owners were left unrestricted as heretofore. But, the effect of this sort of legislative location of a canal, which [**472]  is to spread over a section of country of perhaps two hundred 

 [*270]  miles in length, and more than one hundred in breadth, to the exclusion of all acquirements of intermediate rights, is to me a proposition so new and incomprehensible in its character; so appalling in its consequences, that I can with difficulty persuade myself, that it was "put forth in sober earnest." If it be sustainable, not only is the State bound by it, but no landholder within the sequestered district, could lawfully do any act by which this franchise of the Canal Company could be changed or impaired. To the whole extent of country then, watered by the Potomac and its tributaries, containing two or three hundred thousand square miles, this right of the Canal Company so attaches, that after the date of their charter, no proprietor of land can build a dwelling house, or mill, or erect any building or improvement upon his property, without incurring the risk of having his buildings and improvements razed to the ground, without any compensation or indemnity, other than what he would have been entitled to, had his property remained in the condition in which it was at the time the act of assembly [**473]  passed. And where is he to look for indemnity for this suspension of his proprietary rights? The law does not provide it. The contemplated corporation might not have been formed for a hundred years, after the date of its charter, and although during all that time, his hands are tied, he is deprived of the beneficial use and enjoyment of his property; yet for this sacrifice no remuneration is allowed him. But even after the organization of the corporation, and the accomplishment of the object for which they were incorporated; who are compensated? All whose rights have been ruinously suspended? No. Not one in ten thousand. Perhaps the property of not one, in a still greater number, would be touched by the canal or its appendages; and for those only is any indemnity provided.
Have the legislature of Maryland a power to pass such a law, had they so designed? Certainly not. They can divest no man, agreeably to our constitutional safeguards, of 

 [*271]  the beneficial enjoyment of his property; but upon making adequate compensation therefor.
If, however, it were shown that the canal, by its charter was specifically located, or in any way located, the rail road charter with the acts [**474]  done thereunder, is a repeal of it, so far as their locations interfere, above the mouth of the Monocacy; the rights of the Rail Road Company having been conferred on them by the legislature of Maryland, whilst their powers over the canal charter, were unrestricted by any constitutional prohibition. The Canal Company, not being then in existence, could be invested with no rights, nor be a party to any contract, which the legislature of Maryland could impair, or violate. The selection of the route for the rail road, had been adopted before the Canal Company had been ushered into being.
Nor is it true, as has been assumed in the argument for the appellants, that there is no power given to the Baltimore and Ohio Rail Road Company, so to locate their road, as to interfere with the location, now claimed by the Canal Company. The charter of the Rail Road Company, passed at December session, 1826, gives to the company the power of locating the road, in terms as unlimited as could be devised. They are "invested with all the rights and powers necessary to the construction and repair of a rail road, from the city of Baltimore to some suitable point on [**475]  the Ohio river, to be by them determined: and they, their agents, and those with whom they may contract for making any part of the same, or their agents may enter upon, use, and excavate any land, which may be wanted for the site of said road." If a power of location without restriction or exception of place, were designed to be given; expressions more comprehensive for that purpose, could not have been selected. But it is not alone upon these broad and general expressions, that the rights of the Rail Road Company rests. By the 2d section of the act of 1826, the State of Maryland reserved the privilege of taking stock in the Rail Road Company, to the amount of 10,000 shares. 

 [*272]  By the 3d section of the act of 1827, passed the 3d March, 1828, the general assembly direct their treasurer to subscribe in their behalf, for 5000 shares of this reserved rail road stock, on condition, that the president and directors of the Rail Road Company "shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of the Monocacy river, and the town of Cumberland in Alleghany; and that it shall go into [**476]  Frederick, Washington and Alleghany counties." To this condition, the president, directors and company of the rail road, assent: the stock is accordingly subscribed for, the money of the State received, and the rail road located accordingly. Yet, it is said under these circumstances, that the location of the rail road, "to go to, or strike" the Potomac in the manner aforesaid, was a power not designed to be given to the Rail Road Company. It is impossible to go to, or strike the river, without interfering with the route claimed by the Canal Company. Having reached the river, the continuing the rail road up the same, is the natural, practically speaking, the necessary consequence, in order to comply with the requisition of the act of assembly, that the rail road should pass through Frederick, Washington, and Alleghany counties. If there could be any doubt, as to the operation of the act of 1826, when construed alone; it appears to me, that the legislative interpretation thereof, by the act of 1827, when no conflicting rights were in esse, to be affected by it, must forever remove such doubt. The act of 1827, acknowledges the power in question, to be in [**477]  the Rail Road Company, by the act of 1826. These acts of the same legislature, in pari materia, are "to be construed together as one system." In this view of the subject, can there be a question as to their construction on this point? But let it be conceded for the moment, that there were no words in the act of 1826, by which this power could be transferred. I hold it a matter, too clear for argument or illustration, that this power is fully delegated by the act of 1827. At the time of its passage, the legislature were fully 

 [*273]  authorized to have granted this power. They agree to pay $ 500,000, on condition of its exercise by the Rail Road Company. Is not the inference irresistible, the implication of necessity, that they authorized the Rail Road Company to exert it? To give to this act of assembly any other construction, would be to convict the legislature of Maryland, of an act of absurdity, prodigality and folly, which is without a parallel in the annals of rational men; they intended this, and could have intended nothing else. As well might it be said that if A pay to B $ 500, on condition that he would cut down, and haul off all the timber from fifty [**478]  acres of A's wood-land, that A gave to B no powers under such contract, but that he could sue B as a trespasser or wrong doer, and recover of him damages for every tree he should cut or haul off.
Having by the views already expressed, disposed of the material points in this case, so far as is necessary, to the final decision thereof, I forbear to express any opinion on the point so elaborately, I was about to say unanswerably, argued by the counsel for the appellees, that conceding to the Canal Company, seniority of corporate existence, that their charter per se gave to them no priority of right, in any particular route for their canal. That such superiority of right, rested entirely on priority of selection, and that therefore the rights of the Rail Road Company were paramount. I am therefore of opinion that the decree of the Chancellor, making the injunction perpetual, ought to be affirmed.
DECREE REVERSED AND BILL DISMISSED.