1 of 41 DOCUMENTS 

DAVID HOFFMAN vs. PETER GOLD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 79; 1836 Md. LEXIS 8 

June, 1836, Decided 

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

On the 16th December, 1835, Peter Gold filed his petition charging that Clement Oakes, a mariner, belonging to the port of Baltimore, shipped as a seaman on board the ship Warren, which sailed out of the aforesaid port in the year 1806, on a voyage to the Pacific Ocean, where the vessel arrived, but was seized by the Spanish authorities, and the crew made prisoners; that wages for said voyage have been recovered for, but not received by said Oakes; that he is dead, intestate and without next of kin, as far as appears in the United States, and that it has become the duty of the court, to grant letters of administration upon his estate, in preference, to some officer of the Charitable Marine Society of Baltimore, upon conditions prescribed in the act of 1819,--that the said Gold is an officer of said society, and has made his application within ten days after notice of the death of said Oakes, has been left at the office of the Register of Wills for Baltimore county, and publication thereof for five days in in one of the daily newspapers, printed in the City of Baltimore. Prayer for letters of administration on the estate of said [**2]  Oakes.

The appellant appeared in the Orphans' court, and filed objections to the granting of letters as prayed to Peter Gold, and insisted that if any letters were granted they should be issued to the appellant.

He admitted Oakes' death, &c. urged in substance, that the claim of Oakes to wages, was prosecuted by him at great expense and cost in the District, Circuit and Supreme Court of the United States, from the years 1810 to 1832, he set forth the various expenses to which he had been put in relation to the claim of this and the other seamen of the ship Warren, exceeding the sum of $ 9,000--that his compensation was contingent; that on the recovery of the claims, he had made great efforts to discover the parties, their heirs and representatives--that he had paid off most of the claimants or their representatives, and was willing and ready to pay the others--that the Marine Society had no claim to the fund, and he claimed to retain the fund subject to his demands for reimbursement of advances made in the prosecution of Oakes' claim for wages, and his compensation as proctor--that in addition to his character of proctor, he was trustee of the fund and had executed a bond [**3]  in the penalty of $ 20,000 for the due performance of the trust--that he claims a preference in the administration of the unsettled estates in his hands--first as creditor and secondly as trustee--that Oakes was a slave--his master's name unknown--that he had settled many of their cases upon highly liberal terms, expecting that others of them would never be called for--in many cases making no charge, &c. that as proctor, trustee and creditor, he is sole owner in law and equity of this fund, until called for by the actual owner and his legally proved heirs--personal representatives, assignees or agents--that the proof of the claimant is defective.

After proof taken on both sides, which is sufficiently adverted to in the opinion of this court, the Orphans' court decreed, that letters ought to be granted to some officer of the Charitable Marine Society of Baltimore, and as it was admitted that Gold, was an officer of that society, letters were decreed to him, on his giving bond with security and taking the oath required by law. From this decree the said David Hoffman appealed.

The act of 1819, ch. 187, declared, that when any seaman or mariner sailing from or residing in the [**4]  port of Baltimore, shall die intestate and without heirs, as far as appears, in the United States, letters of administration upon the estate of such seaman or mariner shall be granted in preference to some officer of The Charitable Marine Society of Baltimore; provided that such officer shall make application for the same within ten days after the notice of the death of such seaman or mariner, shall be left at the office of the Register of Wills for Baltimore county, and publication made thereof at least five days in some newspaper printed in the City of Baltimore.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

The testamentary system admits no power of delegation in any person entitled to administration of the estate of a deceased party.

The act of 1819, ch. 187, which declares that when any seaman, &c. shall die intestate, &c. letters of administration upon his estate shall be granted in preference, to some officer of The Charitable Marine Society, having no words giving it a retrospective operation; there being nothing in the nature of its enactments to demand it; and neither the interests of the Society nor the security of the claim being dependent upon it, can according to its language only have a prospective operation.

The testamentary laws have made provision for every case to insure an administration with promptness. If a party dies leaving very near relations, they are to be summoned, if within the State, or an effort is to be made to summon them; more remote relations and creditors next have the preference, if they apply. In the absence of such application, the court can exercise a discretion, and in doing so, should undoubtedly, as a general rule pursue the policy of the system, and commit administration to the person having the greatest interest in the estate.

In 1835, application was made by an officer of The Charitable Marine Society, for letters of administration on the estate of a seaman, who died abroad in    . This was resisted by H, having the funds of the deceased in his hands, and claiming to retain a portion of it for services rendered. The deceased having no kindred. Held, that H, on proving himself to be a creditor would be entitled to administration; and that in the absence of such proof, the Orphans' Court could grant letters in their discretion.

The presumption of slavery arising from colour, upon an application for administration of an estate, is sufficiently rebutted in relation to the grant of letters, by the fact that the deceased engaged in a voyage to foreign ports as a sailor, that his wages which constituted the known part of his estate had been recovered at law in his name, and not been claimed by any owner after the lapse of many years.

The master or owner of a slave may recover from one to whom letters of administration had been granted, and who had recovered in that character property due for the services of such slave. 

COUNSEL:
MAYER and R. JOHNSON, for the appellant, contended:

1. That there was no sufficient evidence of a dying intestate and without heirs of the said Charles Oakes, within the meaning of the act of 1819, ch. 187, as entitled the appellee to administration on his estate; nor any evidence of a general or habitual sailing by him from the port of Baltimore, which proof it is insisted is essential to the appellee's claim for letters.

2. That under the circumstances of the case, the appellant was entitled to administration.

3. That the evidence shows that Oakes died a slave, and of course that [**5]  no administration could be granted on his estate.

4. That the act of 1819, under which alone the Marine Society can and do claim the administration, is altogether prospective and applicable only to cases of mariners dying intestate and without heirs, subsequent to the passage of that act; and of course admitting, that there is a sufficiency of evidence, that Oakes died intestate and without heirs, as it also proves that the death was long prior to that act, the right of administration is to be decided independent of it, and under the general testamentary act, and consequently that appellee was not entitled to the administration.

WILLIAMS (District Atty. U. S.) for the appellee, contended.

1. That there is sufficient evidence of the dying intestate and without heirs, as far as appears in the United States, and that they sailed from the port of Baltimore.

2. That the appellant has shown no claim to administration--because the prior right of the society prevails against creditors--because no evidence that the appellant is a creditor--and his answer admits he is a debtor.

3. That there is evidence that Oakes was a free man and none that he was a slave.

4.  [**6]  That the society are entitled by the act of 1807, ch. 123, to the property left by said seaman; and in being so entitled the Orphans' court ought to grant the letters of administration to an officer of that society, because of its superior interest in his estate.

5. That the act of 1819, ch. 187, is not prospective only.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*83]  CHAMBERS, Judge, delivered the opinion of the court.
The only question brought before this court by the record, is, whether the Orphans' court under the circumstances of this cause, should have passed the decree ordering letters to be delivered to the appellee.
In the view we have taken of the cause, it will be entirely unnecessary to decide upon the right of The Charitable Marine Society, to be considered as sole distributee, but that right may be assumed, to give the utmost effect to the appellee's argument.
It is contended, that the appellee is entitled to letters as matter of right. That the act of 1807, ch. 123, gives the estate of the deceased to the society. That by the policy of 

 [*84]  the testamentary system, as adopted [**7]  and declared by this court, the right of administration should follow the right to the estate, and therefore the appellee is entitled of right, as the appointee and agent of the society. We cannot admit the conclusion.
The testamentary system admits no power of delegation in any person entitled, and if it cannot be exercised by the nearest of kin, who is most favoured in this respect, it will be difficult to sustain a claim for such a power by this corporation.
It is said however, that the act of 1819, ch. 187, expressly confers the right of administration upon an officer of the society appointed for that purpose, and that the object and language of that act, will justify its application to a case originating before its passage.
There are no words it that act giving it in terms a retrospective operation; there is nothing in the nature of its enactments to demand it, nor are the interests of the society, or the security of the claim dependent upon such a construction. On the contrary, the act professes to provide a rule for cases, in which the death of the party should thereafter occur, and by considering it entirely prospective, its letter is gratified; the established rule of construction [**8]  obeyed, and the society for any demand it may have, can resort to the ample security--the administration bond; which the Orphans' court is bound to exact in every case, for the very purpose of protecting both creditors and distributees.
We do not think therefore, that by any positive provision, or any constructive principle of law, the appellee can demand letters as matter of right. Neither was it a case for the discretion of the court. The testamentary laws have made provision for every case, to insure an administration with promptness. If the party died leaving very near relations, they are to be summoned if within the State, or an effort is to be made to summon them; more remote relations and creditors next have the preference, if they apply. In the absence of such application, the court can exercise a discretion, 

 [*85]  and in doing so, should undoubtedly as a general rule, pursue the policy of the system and commit administration to the person having the greatest interest in the estate.
The peculiar language of the paper filed in the Orphans' court by the appellant, makes it doubtful whether he intended it as an application for letters. It would rather seem to be [**9]  a caveat against the grant of letters to the appellee, upon the grounds distinctly stated in the fifth of his reasons, and which relate to the title of the fund claimed by the appellee as the agent of the society.
The title to that fund was not a proper subject for that court, in that form, at that time.
Conceding that the case is within the act of 1807, so as to entitle the society to the estate ultimately, yet as the death of the party occurred before 1819, the creditor, "if he applied," was entitled to letters in preference to an agent or officer of the society.
There would seem however to have been an error in this respect, common to the court and to both the parties.
Letters were claimed by the officer and agent of the society, upon the ground of their title to the estate of the deceased. The application was resisted upon the ground that the society had no legal claim to the fund in the hands of the appellant, and the decree of the court, although it does not in terms declare the title of the society to be the reason why letters are ordered to be granted to the appellee, does allege expressly, that letters ought to be granted to some officer of the society, and orders [**10]  them to be issued to the appellee, because he is admitted to be one of its officers.
This erroneous assumption may account for the fact, that there is no proof given to shew, that the appellant is a creditor, although it is manifest from the statement filed by him in the Orphans' court, that he must have expended large sums of money, and much time and labour in establishing the claims of the deceased, the proceeds of which claims, constitute the funds in his hands.

 [*86]  But the nature of the appellant's claim upon these funds, or the trust in virtue of which he holds them, cannot affect the question now before us.
This court cannot know, nor can the Orphans' court, whether there be other property or effects of the deceased, nor can any litigated question affecting the right to these funds be determined in this mode.
If the appellant shall insist on his right to letters as a creditor, he will not lose the opportunity to protect the rights of property, in, or over this fund, and if failing to apply or to prove himself a creditor, letters shall be granted to the appellee, the question of property will still be open to both parties, and all the rights of the appellant may be [**11]  defended without prejudice from the act of the court granting letters.
The cases so nearly resemble each other, that we have deemed it unnecessary to remark on either, separately. The most material point of distinction which was taken in the argument, was in relation to Clement Oakes, who is proved to be a coloured man, and in regard to whom, it is thence urged that his colour is presumptive evidence of his being a slave. Whatever might be said, if the issue was a direct one, as to his slavery or freedom, upon which we mean not to express an opinion, we think that the fact of his engaging in the voyage as a sailor, the absence of any claim by an owner, and the recovery of wages in his name stated by the petition, and not denied by the caveat, are facts sufficient to repel that presumption, so far as to justify an administration to be had of his effects; considering that the rights of his master or owner may be enforced, if any such rights exist against the administrator.
Believing as we do, that the death of the parties is sufficiently established, we shall remand the case, with directions to the Orphans' court to grant letters to the appellant, if he shall apply for the [**12]  same and prove himself a creditor--otherwise to grant letters at their discretion.
Decree of the Orphans' court reversed with costs, and record remanded accordingly.
DECREE REVERSED.  

2 of 41 DOCUMENTS 

THE PATAPSCO INSURANCE COMPANY vs. JAMES BISCOE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 293; 1835 Md. LEXIS 28 

December, 1835, Decided 

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

This was an action of Covenant, instituted by the appellee, against the appellant, on the 20th of March, 1834, on a valued policy of insurance on freight.

The defendant pleaded performance of the covenants, and issue was joined upon the plea, and the case was submitted to the county court, upon the following statement:

On the first day of October, 1822, James Biscoe, the plaintiff, being the owner of the schooner Fame, lying in the port of Baltimore, directed to the defendants, the following offer for an insurance upon the freight of said schooner.

"James Biscoe wants insurance against all risks, for the schooner Fame, J. Whittington, master, her freight and cargo from Baltimore to Aux Cayes, with the privilege of one other port in the island of St. Domingo, and at and from either of them, back to Baltimore.

________________________________________________________________________________
Say on vessel valued at	$ 2,000	
   " Freight	1,000	
   " Cargo	4,575	
	
	$ 7,575	
________________________________________________________________________________

Please name the premium round, and what return if the second port is not used."

Which was accepted by the defendants upon the terms mentioned in the following policy, dated first of October, 1822.

"This [**2]  Policy of Insurance witnesseth, that the Patapsco Insurance Company have insured and hereby do insure, James Biscoe, &c. in part, or in whole, lost or not lost, at and from Baltimore to Aux Cayes, with the privilege of one other port in the island of St. Domingo, and at and from either of them back to Baltimore; one thousand dollars on the freight upon all kinds of lawful goods, &c. laden, or to be laden on board the schooner called the Fame, whereof is master, &c. Beginning the adventure upon the said freight, from the loading thereof on board the said vessel at Baltimore, and continuing the same, until the said goods and merchandise shall be safely landed at the ports aforesaid. The said freight for so much as concerns this insurance, by agreement between the insured, and insurers, are and shall be valued at the sum hereby insured, &c., and so the said insurers are contented, and stand bound to the insured, his executors, administrators and assigns, for the true performance of the premises, confessing themselves paid the consideration for the insurance, by the insured, at, and after the rate of two and three quarters per cent., to return one quarter per cent. if the second port is [**3]  not used."

That shortly after the execution of the policy, the said schooner, in good condition and properly equipped, sailed on the voyage described in the policy, with a cargo on board from Baltimore to Aux Cayes, where she arrived in safety, and carried freight for the plaintiff, which was received by him to the amount of $ 500. That at Aux Cayes, the schooner took in another cargo on freight, and without using her privilege for another port, sailed in good condition, &c. from Aux Cayes, on her return to the port of Baltimore, and that on said return voyage, the said schooner, and her cargo, were totally lost, by one of the perils insured against by the defendants, in consequence whereof, no freight was earned or received by the plaintiff on the said return voyage. That the plaintiff continued, the owner of the schooner until the period of her loss, and that if she had accomplished her said return voyage from Aux Cayes to Baltimore, she would have earned for the plaintiff on such voyage, freight to the amount of at least $ 500.

Upon the above statement of facts it is admitted, that the plaintiff is entitled to recover of the defendants, the sum of $ 500, one half the amount [**4]  insured, with interest from the first of September, 1823; and it is submitted to the court to determine upon said statement, whether the plaintiff is not entitled to recover of the defendants, the whole sum or valuation mentioned in said policy." Judgment to be entered according to the opinion of the court, with liberty to either party to prosecute an appeal to the court of Appeals.

The county court upon this statement, gave judgment for the plaintiff, for the whole sum insured, and the defendants thereupon brought the record before this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

An insurance for a premium for the voyage round, at and from B to C, with the privilege of one other port in the same Island with C, and at and from either of them back to B, on freight laden, or to be laden, valued at the sum insured, is upon separate and distinct voyages, during the prosecution of which, distinct freights were at risk; and to each of which, as they successively came into existence, the whole valuation in the policy ought to be applied, and a total loss on the homeward voyage paid for accordingly.

In the construction of a policy of insurance, as in other contracts, courts are governed by the intention of the parties at the time of making the contract, when it does not conflict with the principles of the law.

Freight is a compensation received for the transportation of goods and merchandise from port to port, and is never claimable by the owner of the vessel until the voyage has been performed.

A valuation in a policy, unless a fraudulent one, is always binding and conclusive on the parties. In case of a claim for a total loss upon such a policy, the only legitimate inquiry is, has such a loss occurred, and has it been occasioned by one of the perils insured against, while the policy was operating on the subject matter insured by it.

An abandonment can only operate upon the property or thing saved at the time a loss occurs; not upon that which is safe and no longer exposed to the perils insured against.  

COUNSEL:
MAYER for the appellant.

The contract of insurance being a contract of indemnity, there should have been abated from the policy, the amount received for freight; the difference only being the amount of the injury sustained by the assured. 3 Caine's 16.

There is no difference between open and valued policies, except in the case of a total loss. In that event, if the policy is a valued one, the amount is fixed and certain, but in cases of partial loss, whether the policy be open or valued, the amount of the loss must be the subject of inquiry. Livingston vs. The Columbian Ins. Co. 3 John. Rep. 49. Forbes [**5]  vs. Aspinall, 13 East, 323. Phillips' Ins. 312, 372.

In the present case, the correctness of the judgment of the county court, depends upon the intention of the parties. If the $ 1000 was the amount insured upon the whole voyage, out and home, then clearly the amount received at the outward port should be deducted. But if, on the contrary, the intention was to insure $ 1000 out, and $ 1000 back, then the judgment should be affirmed. He insisted that the obvious intent and effect of the policy was, to insure the amount of $ 1000 on the freight out and home, upon the whole circuit of the voyage, and consequently, what was actually received at the outward port should be deducted, because that ceased to be at risk; and so ceasing, the responsibility of the underwriter to that extent was at an end. 3 Caines, 210. Coolidge vs. et al. vs. the Gloucester Mar. Ins. Co. 15 Mass. 341. Haven et al. vs. Gray, 12 Ib. 71. Forbes vs. Aspinall, 13 East, 323. 3 Caine's Cases, 21.

If the loss had occurred upon the outward voyage, then a recovery for the whole value might have been had, because then the whole was at risk, but that could not be the case, when the outward freight had been earned [**6]  and received. At all events, the plaintiff cannot recover the whole value, as he has not shown that the vessel would have earned that amount of freight on her homeward voyage. This was indispensable to his right to recover for the full value, or otherwise, the contract is carried beyond a contract of indemnity, which is never allowed. There is nothing to show that a premium was charged on the whole value, out and home.

MCMAHON for the appellee.

This is a valued policy, and consequently the proof of the extent of the loss is dispensed with, which was the great motive for preferring policies of this description to open policies, which were attended with great inconvenience. The valuation closes all disputes, with reference to the extent of the loss, and for that reason, they are favoured by the courts, unless they be assailed upon the ground of fraud. The value is never examined, unless the disproportion between it and the thing insured is so glaring, as to excite suspicion of unfairness or gambling. 1 Phillips' Ins. 306. Coolidge et al. the Gloucester Mar. Ins. Co. 15 Mass. 341, 344.

In the present case, the disproportion is not such as to give rise to the slightest suspicion.  [**7]  

The voyages out and home were perfectly distinct and independent of each other. There was no charter party to give it entirety, and the fact that the freight out was paid at the foreign port, shows that the voyage out terminated upon the arrival of the vessel there. If the voyage out and home had been considered one entire voyage, then the freight would not have been paid until the arrival of the vessel home. The insurance was upon two distinct and successive freights, and the valuation on the policy was of the aggregate value of each risk, and not both conjointly.

A policy of insurance only attaches upon the thing at risk, at the time of the loss. Here the outward freight was earned, before the cargo was on board, upon which the inward freight was to be charged; and therefore, while the outward freight was earning, the inward was not at risk. The two freights never could be at risk at the same time, which, if the position on the other side is correct, is attended with this advantage to the insurers, that whilst they are getting a premium on $ 1000 all round, cannot be exposed to a loss of more than $ 500; and should the freight out be equal to the whole amount of the policy,  [**8]  then they would be at no risk whatever upon the homeward voyage.

A valuation on freight is not that the vessel shall earn the amount by the voyage. It is merely a guide in case of loss, to measure the totality of the loss at the time. Here the loss was the freight upon the homeward voyage, the totality of which the parties agreed should be $ 1000. Columbian Ins. Co. vs. Catlett, 12 Wheat. 383. Ib. 394. Whitney vs. Am. Ins. Co. 3 Cowen, 210. Crowley et al. vs. Cohen, 23 Serg. and Low. 125. Haven et al. vs. Gray, 12 Massa. 71.

The test of the right to have the freight deducted depends upon the right of the assured to abandon. If the right of abandonment did not exist, then there can be no right to have a deduction, and as an abandonment must be of something at risk, and the freight out could not be at risk, after having been earned and received, there could be nothing to abandon. 1 Phillips' Ins. 382, 458

The policy in this case could not be upon the voyage round, because when the vessel sailed from Baltimore, no freight was engaged at the outward port, and there was nothing therefore but the freight out, upon which it could operate. It could only attach upon the risks [**9]  separately as they came into existence, and not upon both at the same time, because both could not exist at the same time. If the valuation in the policy is not regarded as the standard in case of loss, what standard could be adopted in case the loss had occurred upon the outward voyage. Then it could not possibly be known what proportion the return freight would bear to the whole risk.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*299]  STEPHEN, Judge, delivered the opinion of the court.
The decision of the question involved in this case, depends upon the true construction of the contract of insurance entered into between the parties; and that construction must essentially depend upon their intention at the time the contract was made; for such intention, when it does not violate, or conflict with the principles of law, ought to be respected and carried into effect, as well in a contract of this description, as in all others which may be made in the various dealings and intercourse between man and man. What then is the legal effect, and operation of the contract of insurance in this case, in relation to the freight [**10]  covered by it? Was it an insurance separately of the freight of each voyage marked out and described in the policy, at the valuation of $ 1000; or was it an insurance of the aggregate freights of both voyages at that valuation? Whether the one or the other of these constructions shall prevail is deeply interesting to the parties, whose rights are involved in the determination of this controversy, and therefore demands the careful and attentive examination of this court; and more especially as the principle involved in the decision of their rights, will have an important bearing upon the law of insurance generally, and the interests of the mercantile community at large. After the best consideration which we have been 

 [*300]  able to bestow upon the subject, we have come to the conclusion that the voyage in this case, is not to be considered as one entire voyage from Baltimore to Aux Cayes, and at and from Aux Cayes, with the privilege mentioned in the policy, back to Baltimore; but that it is a case of separate and distinct voyages, during the prosecution of which distinct freights were at risk; to each of which, as they successively came into existence, the valuation [**11]  in the policy ought to be applied. It is admitted in the case stated, that freight to the amount of $ 500 was earned on the outward voyage to Aux Cayes, and received by the assured; and that the vessel there took on board a full cargo, and was lost on her homeward passage to Baltimore. From this admission it would seem to follow as a necessary consequence, that the vessel was not engaged in one continuous and entire voyage for the whole circuit, from Baltimore to Aux Cayes and back again to her port of departure; and consequently that the risk assumed by the policy was not an unbroken and entire risk; but that the voyages were separate and distinct in their character, and that separate and distinct freights were at risk during each voyage; for it appears to be clear, that upon no other hypothesis, than that the voyages were distinct, could freight have been earned and received at the port of Aux Cayes, where she first arrived. Freight is a compensation received for the transportation of goods and merchandise from port to port; and is never claimable by the owner of the vessel until the voyage has been performed and terminated. The admission of the fact that the [**12]  vessel earned freight, by the transportation of the outward cargo to the port of Aux Cayes, is an admission that the outward voyage there terminated; and consequently that when she there took on board her homeward cargo, for the purpose of returning with the same back to Baltimore, she was engaged in the earning of a new freight, the right to which would have been consummated on her safe arrival at that port. If the voyages were separate and distinct, the freights to be earned by the prosecution and completion of them, must, we think, partake of the same 

 [*301]  character; and the question then arises, could the policy attach and operate upon the freight to be earned by the completion of the second voyage, before the cargo was laden on board at the outward port, or as far as appears from the case stated, had even been contracted for.
We think it could not, because at the time the policy was executed, the assured had not such an interest in the freight, as would make it the subject matter of an insurance, according to the well established principles of the law. In 1 Phillips on Insurance, 52, in treating upon the subject of insurable interest in freight, the principle [**13]  is stated to be, that "if the freight be derivable from the transportation of merchandise, the right commences when the goods are put on board; or at farthest, when a part have been received, and the rest are ready to be shipped," and in support of such principle, the author refers to the case of Riley vs. The Hartford Insurance Company, 2 Conn. 368. So, in the same book and same page, he says, "the freight of goods laden, or to be laden, being insured, a part of the cargo was taken on board at Gibraltar, and the ship was proceeding towards the Cape de Verd Islands, with funds on board to purchase salt there to make up the cargo, when she was lost. It was held, that the insurable interest had commenced only in respect to the goods shipped at Gibraltar." From these cases, it appears, that in the case of an insurance upon freight, the assured had no right to call upon the underwriters for an indemnity, unless the goods have been put on board, or at least have been contracted for, and are ready to be put on board when the loss occurs.
In the case now pending before this court, when the contract of insurance was entered into, no part of the homeward cargo [**14]  had been put on board, or contracted for, consequently the assured had not at that time such an interest in the freight to be earned in the homeward voyage, as could legally be made the subject matter of an insurance. In giving then a legal construction to this contract, the valuation in the policy must be understood to apply in the first instance, only 

 [*302]  to the freight in which he then had an insurable interest, and that as to the freight on the homeward voyage from Aux Cayes to Baltimore, it was prospective in its operation, and could only attach upon the homeward freight, when the assured acquired an insurable interest therein. A premium was taken for the freight at a valuation of a thousand dollars for the voyage round, of course the policy covered both risks, and must, we think, be construed in such a manner, as to give it an operation, that will make it harmonize with the established principles of law. This can only be done by expounding it to be a contract of indemnity for the freights of each voyage, terminating in its operation upon the freight of the first voyage, upon the safe arrival of the vessel at Aux Cayes, and attaching upon the freight of [**15]  the return cargo, so soon as the assured had acquired an insurable interest therein. Upon the earning of freight by the transportation of the outward cargo to its destined port, the policy had performed its office for that voyage, and then commenced its operation as a contract of indemnity upon the freight of the homeward voyage.
In a treatise on Average and Marine Insurance by Stevens and Benecke, 37, it is said "a question has arisen, whether a valuation of freight for a voyage consisting of successive passages, from and to successive ports of loading and discharge, is applicable to the aggregate freight of the successive passages, or to the freight pending at any one time. For example, freight is insured and valued on a voyage to the West Indies and back, and the ship earns freight outward, and is lost on the homeward voyage. Does the assured recover one half, or the whole amount insured in the policy? It was held in New York that he was entitled to recover the whole amount."
Davis vs. Hallett, 3 Caine 16.--"In a case that arose in Boston, on an open policy on freight, for a similar voyage, in which the outward freight was earned, and the vessel then [**16]  lost, it was decided by a referee skilled in insurance, 

 [*303]  that the insurers was liable, for the whole amount insured by them. This was in conformity to the above case."
The case above referred to, of Davis vs. Hallett, was an insurance on the freight of the sloop Hannah, valued at $ 2000, at, and from Philadelphia to Omoa and Gol fo Dulee, and at, and from thence to Philadelphia. The vessel sailed on the voyage insured, and arrived in safety at Gol fo Dulee, having earned freight to the amount of $ 2000. She there took in a return cargo for Philadelphia, the freight of which was equal to $ 2000 more, and sailed on her homeward voyage, during which she was captured by a British man-of-war. This case would be identical with the case now pending before this court, but for two distinguishing features, which it is supposed mainly influence the decision of it. The freight at risk in that case, both upon the outward, and the homeward voyage, was fully equal to the valuation in the policy, and it was admitted, that the premium on the outward voyage only, would have been about one half of that paid. These, it is true, are circumstances, which might [**17]  have had an influence upon the minds of the court, in the exposition which they gave to the policy in that case; but it by no means follows, we think, that the decision would not have been the same, in the absence of those circumstances.
Kent, Chief Justice, says, "in the present instance there was, when the vessel was captured, an inchoate freight attached, equal to $ 2000. There was some freight already earned, when the capture took place; but the amount of it becomes immaterial, as the valuation in the policy precludes inquiry into the value; and this valuation is to be adhered to, if the case be fair and honest between the parties, notwithstanding events in the course of the voyage may render the loss even advantageous to the assured. It is sufficient, if there be freight at risk equal to the sum insured, when the loss happens, and that some freight has been already earned for the insured.
If we were to sustain an inquiry into the value of the 

 [*304]  freight, it would be doing away the effect of the valued policy." Again he says--"To apportion the loss and gain in this case, so as to make the gain of one moiety of the outward freight enure to the insurer, and the loss [**18]  of one moiety of the homeward freight to fall upon the insured, would be an arbitrary rule, and would not give the plaintiff his just indemnity. It would be changing the legal operation of this contract, and making it an insurance of one moiety only of the outward, and one moiety of the homeward freight; instead of an insurance to the amount of the valuation, on so much freight pending when the loss arose. The payment of the double premium is a pretty sure index to the intent of the parties, that the policy should attach on the outward or homeward freight, according to events. The policy was to be valid and operative as long as there was aliment to keep it alive."
It is true that the judge relies upon the double premium as aiding in the construction of the contract, and as indicative of the intention of the contracting parties; but we do not think that it would be doing justice to the decision, to consider it as founded exclusively upon these considerations.
He says an apportionment of the loss and gain between the insurers and insured, would be an arbitrary rule, and would not give the plaintiff his just indemnity. It would be changing the legal operation of the contract, and making [**19]  it an insurance of one moiety only of the outward, and one moiety of the homeward freight, instead of an insurance to the amount of the valuation on so much freight pending when the loss arose.
The policy was to be valid and operative as long as there was aliment to keep it alive. It must be borne in mind, that he was then deciding upon the case of a valued policy. That the valuation unless a fraudulent one, is always binding and conclusive upon the parties, and that unless it be a case of fraud, the valuation agreed upon estops the parties from looking behind it for the purpose of changing the legal 

 [*305]  operation of the contract. In case of a claim for a total loss upon such policy, the only legitimate inquiry is, has such a loss occurred, and has it been occasioned by one of the perils insured against, while the policy was operating upon the subject matter insured by it. Upon any other principle of construction, it would be divested of all the attributes of a valued policy, and the door would be open to an inquiry, unwarranted by the solemn agreement of the parties, and which is only admissible in the case of an open one.
It would be subjecting the assured to all the delay,  [**20]  expense, and inconvenience, which the valuation in the policy was intended to prevent, and would be at war with the best established principles of the law of insurance.
If the title of the underwriters to the freight earned upon the outward voyage, is to be tested by the law of abandonment, it is clear beyond controversy, that they can establish no title to it, because an abandonment can only operate upon the property or thing saved, at the time the loss occurs, and not upon that which is safe, and no longer exposed to the perils insured against. In 1st Phillips, 356, it is said--"In regard to freight, as far as the freight insured has been earned, and become absolutely due, the contract of insurance has been satisfied. If freights between different ports successively, and becoming absolutely due at the several ports of delivery, are insured in one policy, and after one or more of the freights is earned, a total loss upon this interest takes place, an abandonment can have relation only to the freight pending at the time of the loss. In respect to the freights previously earned, they have either been paid--to the insured, or his claim for them has become absolute, and thus have [**21]  ceased to be exposed to the perils insured against. In respect to such freights therefore, the insurers are discharged, since all that they agreed in the policy to be answerable for has been accomplished. An abandonment accordingly, has no operation upon freight earned."
Several cases were referred to in the argument, for the purpose of aiding in the exposition of this policy, which we 

 [*306]  do not deem it necessary to examine further to illustrate this subject, because we think that the construction given the policy by the court below was correct, and that their judgment ought to be affirmed.
JUDGMENT AFFIRMED.  

3 of 41 DOCUMENTS 

ELIZABETH SELLMAN vs. RICHARD BOWEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 50; 1836 Md. LEXIS 5 

June, 1836, Decided 

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

The appellant in December, 1832, filed her bill in the court of Chancery; to recover from the appellee, the alienee of her husband, (who died in 1817,) a portion of the rents and profits of a lot in the City of Baltimore, of which she alleged her late husband had been seized during the coverture. The bill charged and it was in proof, that after the death of her husband, she had recovered her dower in the property in question by a proceeding in the Baltimore county court; but as her husband did not die seized, she alleged, that no judgment could be had at law for the rents and profits, which it was the object of this bill to recover from the period of his death.

The answer denied the seizin of the husband; put the complainant to the proof of the marriage; and insisted, that her laches and neglect, in not making her demand earlier, in consequence of which, the defendant had been induced to expend large sums of money on the premises, had deprived her of all right to call for an account of the rents and profits, if she ever had any. It also relied upon the plea of the statute of limitations, and the proceedings in Baltimore county court, which court the [**2]  defendant insisted, was competent to grant all the relief sought by the present bill.

A number of witnesses were examined in reference to the seizin of the husband, the marriage, and the value of the rents and profits from the death of the husband, after which the Chancellor, (Bland) at March term, 1835, dismissed the complainant's bill with costs.

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

DISPOSITION:
DECREE REVERSED WITH COSTS.  

HEADNOTES:

In an action at law for dower against the alienee of the demandant's husband, the defendant pleaded the non-seizure of the husband during the coverture. The verdict on that issue and the judgment was for the demandant. Upon a bill in equity between the same parties, to recover mesne profits, it was held, that the proceedings at law were conclusive evidence of the seizin of the demandant's husband, and evidence that in the first proceeding, her marriage was admitted.

General reputation, cohabitation and acknowledgment are sufficient evidence of marriage in all cases, except in actions for criminal conversation and in prosecutions for bigamy.

In ordinary applications to equity for a decree for dower, and for rents and profits, where the seizin of the husband is denied, it is the course of that court to send the parties to law, to litigate the legal question, while in the meantime, they retain the bill.

The case of Steyger and Hillen, 5 Gill and John. 133, explained, in relation to recovery of damages from the alienee of demandant's husband.

A widow can only, in equity, recover damages from the alienee of her husband, for the detention of her dower. A court of law cannot award them.

The alienee of a husband seized of land, after the husband's death, who receives the rents and profits, is considered in equity as a trustee or bailiff to the extent of the widow's claim for dower, and cannot defeat the claim for mesne profits by pleading limitations.

A widow who sues the alienee of her husband, at law for dower, may after her recovery, then sue him in equity for rents and profits.

Rents and profits are decreed to the widow of one seized during coverture, as against his alienee, from the time of demand made by the widow, and are estimated according to the improved value of the premises and from the time the improvements, if any, were made.  

COUNSEL:
GLENN and SPEED, for the appellant, contended:

1. That the parol evidence, independently of the proceedings in Baltimore county court, (which themselves are conclusive upon the questions,) abundantly prove both the seizin and marriage. But admitting that a doubt might be raised if the case rested upon the parol proof alone, the evidence furnished by the record of the recovery in Baltimore county court, is altogether conclusive. That judgment was between the same parties, and involved the very questions of coverture and seizin. It is as conclusive in its influence upon this case, as would be a judgment in ejectment, in a subsequent action for the mesne profits. Fenton vs. Reed, 4 John. Rep. 54. 8 Wend. 661. The parol evidence [**3]  is of general reputation and cohabitation, which is sufficient proof of marriage, except in cases of bigamy and crim. con.

2. Limitations are no bar to the present proceeding, because no such impediment could be interposed to an action of dower. If the principal, the dower, cannot be barred, how can the incidental right to the profits. Steiger vs. Hillen, 5 Gill and John. 133. 8 Wend. 661. Wells vs. Beall, 2 Gill and John. 468. 1 Roper on Property, 466, 467, 468, 469.

3. The judgment of the Baltimore county court, presents no defence to the present proceedings, as that court could not have given the relief sought by this bill. By the common law, the courts could not give damages in actions of dower. The jurisdiction for that purpose was conferred upon them by the statute of Merton, which is applicable only to those cases in which the husband dies seized. Doctor and Student, 141. 2 Bac. Abr. 392, (dower.) Park. on Dower, 301, 302, 307. Roper on Prop. 433, &c. 4 Kent Com. 65.

If the want of jurisdiction in the county court had been even doubtful, a court of equity having undoubted jurisdiction will give relief. King vs. Baldwin, 17 John. Rep. 384, 388, 389. That courts [**4]  of equity have jurisdiction in cases of this description, cannot be disputed. Mitf. P. 110, 111. 1 Fonb. Eq. 19, 20. Hale vs. James, 6 John. Ch. R. 258. 3 Dessau, 535. In regard to the defence urged upon the ground of the staleness of the demand, they insisted, that the proof established a demand as early as 1817, soon after the death of the husband. No such proof however, was necessary; the case of Steiger vs. Hillen, having decided, that the claim may be preferred at any time during the life of the widow.

RANDALL, for the appellee.

1. In a bill for rents and profits, the widow must show such a seizin, as would entitle her to dower in the property itself. No inferior grade of proof will be sufficient; and she must also prove a marriage in fact, and cannot recover upon mere evidence of general reputation and cohabitation. 1 Saund. Pl. and Ev. 485.

2. The proceeding in the Baltimore county court is an insuperable bar to a recovery here. The writ in that case, was a writ for dower and damages, of which the court had full jurisdiction. The complainant submitted her cause to that court, and its judgment consequently is final. Dower is a legal demand, and the courts of Chancery [**5]  only assumed jurisdiction, to obviate certain difficulties, inseparable from legal proceedings. The two courts now have concurrent jurisdiction in cases of dower, and there is no difficulty in the recovery of damages in the legal forum, even against the alienee of the husband. 11 Law Lib. 138. Park on Dower, 302. Steiger vs. Hillen, 5 Gill and John. 133. When the husband has aliened, the widow can only recover damages from the date of her demand, either at law or in equity. 11 Law Lib. 152. Park, 332. 4 Kent Com. 65. The two courts having concurrent jurisdiction, and the plaintiff in this case having separated the corpus, the dower, from the accessary, the rents and profits, cannot now recover the latter. 11 Law Lib. 142. Park, 310. Pre. in Ch. 97. Wilson vs. Gott, 6 Gill and John. 309. In all the cases in which rents and profits have been decreed, the bill has associated with them a claim for dower. The separate recovery of each, leads to a multiplicity of actions, and should, for that reason be discountenanced.

3. The plea of limitations is a bar to this bill. The cases in which the courts have repudiated the plea, are cases in which both dower, and rents, and profits have been [**6]  claimed. The claim for the latter is protected, because of its connection with the former, that being a subject to which limitations are inapplicable. But when they are disconnected, the claim for rents and profits falls within the scope of the statute. 4 Kent Com. 69. In every case of a bill to account limitations are a bar. 3 Dessau, 535. Steiger vs. Hillen, 5 Gill and John. 133.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*54]  ARCHER, Judge, delivered the opinion of the court.
The complainant having recovered her dower at law, seeks by this bill the rents and profits from the death of her husband.
The seizin of the husband is denied; and the defendant puts the complainant to the proof, not only of the seizin, but the marriage.
The complainant anterior to the filing of this bill to recover rents and profits, had instituted suit in Baltimore county court, for her dower. In this suit the seizin of the husband was directly in issue, and the marriage by not being denied, was admitted. The verdict and judgment in that cause, being between the same parties, where the same issue was in controversy [**7]  must at all events, as to the seizin, be considered in this controversy as conclusive; and as the demandant in the suit at law, could not have recovered without proof of marriage, or its admission, the effect of the record perhaps, ought to be considered as equally conclusive of the marriage as the seizin; the marriage not having been denied, but the cause being put to the jury on the issue of seizin. But without proceeding to any determination upon this branch of the subject, the proof of marriage in the record before us is abundant; if general reputation, cohabitation, and acknowledgment, can in such a case be considered as evidence, and of this we have no doubt. Such evidence is sufficient in all cases except in actions for criminal conversation, and in 

 [*55]  prosecutions for bigamy. Morris vs. Miller, 1 Wm. Black. 632.
In ordinary applications to equity for a decree for dower, and rents and profits, when the seizin of the husband is denied, it is the course of this court to send the parties to law, to litigate the legal question, while in the meantime they retain the bill.
Between these parties however, before the filing of this bill, the legal right had been tried [**8]  and settled, and every question had been adjudicated by a court of common law, which in any shape the cause could assume, would fall within their peculiar cognizance.
The complainant therefore meets with but three difficulties in addition to those above adverted to, in the recovery of the rents and profits which have been withheld from her.
1. It is supposed that having sued for her dower at law, she might there have recovered her damages, and having failed to recover them at law, she has lost them every where. If there exist a right to recover damages at law, and the plaintiff at law failed to recover them, looking to the state of the record, it is probable that the matter must be considered as res adjudicata, and that it cannot form the subject of a new litigation, but the judgment already passed has foreclosed the plaintiff. It must be conceded, that in the case of Steiger and Hillen, 5 Gill and John. 133, countenance is given to the doctrine that at law, the widow may recover from an alienee of the husband her damages. The suggestion was not necessary to the determination of that case, and having been fully discussed in this case, and the doctrine more deliberately [**9]  examined, we have brought our minds to the conclusion, that it is only in a court of equity that the rule will apply, that a widow is entitled to her damages from the alienee of her husband, and that consequently, a court of equity is the only and peculiar forum for their recovery in such a case. The following authorities would appear conclusively to establish the doctrine. Doctor and Student, 140. 141. Roper on Prop. 435, 443. 2 John. 119. Jenkin's Cent. 1 Ch. 85. Park. on Dower, 391.

 [*56]  2. That the rents and profits are but incidents of the right to dower, and the dower having been recovered at law, the bill from the incidents cannot be maintained without having the support which they would derive from an application at the same time for the principal. If it be true, that the widow could not have recovered them at law in this case, and that for the dower itself, courts at law and equity have concurrent jurisdiction, the result of such a principle, would in all cases be to defeat the widow of her damages, where she pursues her remedy at law; and such a doctrine would be attended with this further result, that in all such cases,  [**10]  the jurisdiction of the courts of law, of the principal (the dower) would be practically ousted, for no one would ever go to law to recover her claim to dower, when she is to be pursued with the inevitable penalty of a loss of rents and profits. An argument leading to such consequences cannot be maintained. Besides the respondent who is the recipient of the rents and profits; of that which in fact belonged to the wife, ought to be, and is considered in the mind of the court of equity as a trustee, or bailiff, and accountable for his stewardship, and it cannot be perceived how with any legal propriety, the compulsory recovery of the principal which has been unjustly withheld, should produce the effect of stripping the defendant of his character of trustee, with which he had been clothed, in order to enable a court of equity to do justice, when the same reason precisely ought to continue after the recovery of dower as before. A widow may expressly, or by implication waive her right to rents and profits, but certainly a recovery at law to the extent to which she could recover, cannot be considered as waiver of any thing.
3. It is supposed that the complainant is barred by limitations.  [**11]  Had she pursued her claim, both for dower, and for rents and profits in a court of equity, she would not have been barred, and we understand this to have been conceded in the argument. But if it were not conceded, it is established by authority. Mesne profits as damages, are given at law under the statute of Merton, without restriction as to 

 [*57]  time, and when they are decreed in equity to the widow, the like account will be taken; courts of equity applying limitations only, in analogy to limitations at law. Roper on Prop. 448. In 9 Ves. 222, after the lapse of twelve years' rents and profits were decreed, the master of the rolls observing, that there was no reason for depriving her of the account, if she was not barred at law.
Shall then the circumstance of her having sued at law for her dower, and in equity afterwards for her rents and profits make any difference in this respect? We think not. The character of the claim, and all the legal principles which might go to support or defeat it remain unchanged, and ought to be applied to it, when presented to the court in this isolated shape, as would attach to it, when combined with a claim for dower. [**12]  
The decree of the Chancellor is reversed with costs, and this court, when an account shall be prepared by an auditor to be appointed by this court, will decree rents and profits from the time of the demand proven in the cause; which rents and profits are to be estimated according to the improved value of the premises, from the time the improvements were made.
DECREE REVERSED WITH COSTS IN BOTH COURTS.  

4 of 41 DOCUMENTS 

THOMAS S. WILSON vs. NEGRO ANN BARNET.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 159; 1836 Md. LEXIS 16 

December, 1836, Decided 

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

This was a petition for freedom, filed on the 12th October, 1836, by the appellee, against the appellant. The freedom being denied, at the trial of that issue, the following exception was taken.

The petitioner offered in evidence, that she had been living and acting in the City of Baltimore, as a free woman, from the 27th July, 1830, until she was arrested as a slave by the defendant on the 11th October, 1836, and confined in Baltimore county jail as a runaway by his order. The defendant, the appellant, then offered in evidence, that the petitioner was born the slave of Elizabeth Richmond, late of Queen Anne county, in the State of Maryland. That the said Elizabeth, among other bequests devised as follows: "Item--In case my personal property, other than negroes, shall not be sufficient to pay debts and legacies; I do hereby direct my executor hereafter mentioned, to sell so many of my male negroes until they attain the age of thirty-two years, at which time it is my will and desire that they be free, those under seven years of age I wish to be free at the age of twenty-five, and none to be sold out of the State.

"Item--I give and bequeath [**2]  my negro man Sam, to the Rev. Thomas D. Monnelly, to serve him three years, at which time I wish him to be free.

"I give old William, at his own request, to his friend, John Holland, a free negro, and all the others who have attained to the age of forty or upwards, to be given or sold for no more than one dollar a piece to such of their free relations as they may choose to go to. As it is my wish and desire that all my female negroes may be free at my decease, unless my debts should require the sale of them, in which case I desire, that as many of them that is under the age of twenty five, may be sold until they arrive to that age, and I desire, that all the children that they may have in the time of their service may be free when their mothers are free.

"I desire the female children under the age of six and seven to be given to their mothers."

The testatrix died on the 7th December, 1831. The will was duly proved and recorded, and letters of administration granted to the defendant.

The appellant also offered in evidence the inventory of the personal estate of the said Elizabeth, which included the petitioner, and described her above thirty years of age, and then [**3]  read an order from the Orphans' court of Queen Anne county, from which court the defendant had received his testamentary letters, as follows:

"Queen Anne county, Orphans' court, August term, 1836.

On application of Thomas S. Wilson, administrator, with the will annexed of Elizabeth Richmond, deceased, ordered that he sell at public or private sale at his discretion, for cash or on credit, for not less than the appraised value the following negroes, belonging to the estate of the said deceased, viz: Ann Barney, and her daughter, Ann Milly Gross, and her two children, Jacob and Jemmy, and boy Robert."

Thereupon the defendant by his counsel, prayed the court to instruct the jury, that the petitioner is not entitled to their verdict, and that they must find a verdict for the defendant.

1st. Because the petitioner has offered no evidence to show that she was free born.

2d. Because the petitioner has not offered any evidence to show that she is entitled to her freedom under a deed of manumission.

3d. Because the order of the Orphans' court for Queen Anne county is evidence to show, that the personal estate of Elizabeth Richmond is insufficient for the payment [**4]  of her debts, and therefore, the petitioner is not entitled to her freedom under the will of the said Elizabeth Richmond. Which the court (BRICE, C. J., NISBET and WORTHINGTON, A. J.) refused to do, and gave the following opinion and instruction to the jury.

If the jury shall be of opinion from the testimony given in the cause, that the petitioner was above the age of twenty-five years at the death of the testatrix, and has been residing in the City of Baltimore, and acting as a free woman from the time of her being appraised as a part of the deceased's estate, until the day of filing this petition, with the knowledge and consent of the defendant, her administrator de bonis non, it amounts to prima facie evidence till rebutted by competent legal proof to the contrary, that the debts of the testatrix, if any, have been fully paid out of other portions of the personal estate, first appropriated by the will for that purpose; and, that the petitioner is consequently free under the provisions of that will. And the court were further of opinion, and so directed the jury, that the inventory and order of the Orphans' court offered in evidence to prove a deficiency of the preferred assets [**5]  to pay the debts, do not furnish sufficient competent and legal evidence for that purpose, and to rebut the presumption of the petitioner's right to freedom arising from the other testimony in the cause. The defendant excepted, and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Proof that a negro woman had been living and acting as a free person from the 27th of July, 1830, to the 11th of October, 1836, does not furnish any evidence whatever in support of her claim to freedom, unless it can be shown, that the party entitled to her custody and service, knew of her place of residence during the period of her so living and acting.

Thus, where it was in proof, that the petitioner, who was born the slave of a testatrix who lived and died on the Eastern Shore of Maryland, lived as a free woman in the City of Baltimore, for the period above mentioned, and who by the will of the testatrix was entitled to her freedom if the residue of the personal estate was sufficient to pay her debts: Held, that her so living, did not furnish prima facie evidence of the sufficiency of said residue for that purpose, or any evidence upon which a direction to that effect could be given to the jury, there being no proof that the personal representative of the testatrix was aware of her residence.

An order passed by the Orphans' court, directing the administrator to sell the slaves of the testatrix, is not evidence of the insufficiency of the other personal assets, in opposition to the petitioner's right to freedom.  

COUNSEL:
J. SCOTT, for the appellant.

The case must turn upon the efficacy of the order of the Orphans' court. Under the act of 1796, ch. 67, sec. 13, if the personal estate of the deceased is sufficient to pay debts independent of negroes, the manumission by last will is valid, but not otherwise. The inventory was taken in June, 1832, and the negroes constitute $ 2,910 of its aggregate amount, $ 4,125. Now, if the order had gone on to aver a deficiency of the personal estate of Mrs. Richmond, there could be no doubt about its validity; yet in point of law, it is just as efficacious without that averment, as with it, for to no other purpose could the Orphans' court legally have ordered a sale of the negroes. Judicial tribunals are not presumed to exceed their jurisdiction. Every intendment is to be made in favour of the action of a court, if [**6]  it be shown to have jurisdiction. 10 Mod. 71. 1 Saun. 90.

The administrator is bound to account to the Orphans' court for all the property in the inventory, and as this woman was born a slave, has not been manumitted but upon a contingency, the evidence tends to prove that she was still a slave, and should have been returned. 6 Tern. 177.

The right to freedom by last will is a statutory right, and cannot exist to the prejudice of creditors, and as the object of the order was to create a fund for payment of debts, it results that the personal estate was insufficient, and the City court in error in assuming there was no evidence of that insufficiency.

BARNARD, for the appellee.

The petitioner rests upon the will of her mistress, and the subsequent conduct of the administrator, the defendant, in suffering the petitioner to go at large. The will shows a manumission, and the inventory establishes the fact, that the petitioner was above the age mentioned in the will. The conduct of the appellant showed his assent to the legacy of freedom, and this perfects it. Slight circumstances amount to such assent. It is express or implied. She lived at large, and in a state of freedom [**7]  for several years, within a few miles of the defendant. Preston on legacy, 48. 2 Ventris, 358.

She was at large before the death of her mistress. Legacy to one in possession. Possession subsequent for years, evidence of consent of administrator. 4 Devereux, 57.

The counsel on the opposite side supposes it an act of humanity on the part of the administrator, permitting her to go at large, acting as free. The court and jury below draw a different presumption, and as contrary to his duty, he derived no income, no assets from her services, they inferred his assent to her liberation. 3 Der. 399. Andrews vs. Hunneman, 6 Pick. 126. 2 Har. & Gill, 483. 4 Gill & John. 277.

There was no proof of the insufficiency of the personal estate, save the order of court which does not allege it. The want of such evidence is the reason why freedom should not be divested. If the order affects her right, she was entitled to an appeal; but even that is lost by the failure to arrest her within thirty days of its passage. The executor's assent to to the legacy relates to the death of the testator. Prest. on legacy, 49. Smith and wife vs. Townes, administrator, 4 Munf. 191. Once given it is not [**8]  revocable. 1 McCord, 91. 2 Hawks, N. C. 123.

Hence the Orphans' court could not again reach the petitioner, and has therefore excluded its jurisdiction. Again, the use made of this order violates the rule that the best proof should be offered the nature of the case will admit of. The mode of settling the estate should have been exhibited. No proof here that any part of the cash was paid away. No proof of any outstanding debts or that testatrix was indebted. The slave could never impeach this order, and must lose her liberty under the construction insisted upon. The insufficiency of assets should be shown affirmatively. Miller vs. Negro Charles, 1 Gill & John. 390.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*164]  ARCHER, Judge, delivered the opinion of the court.
The court below erred in expressing to the jury the opinion, that if they believed the petitioner had been acting as a free 

 [*165]  woman from the time of the appraisement with the knowledge and consent of the administrator, that then such facts amount to prima facie evidence that the debts of the testatrix have been paid out of other [**9]  portions of the estate first appropriated by the will.
The principles of law involved in the prayer it is unnecessary to discuss, because we do not perceive any evidence in the record of the consent of the administrator, that the petitioner should act as a free woman, or that her residence in the city of Baltimore was, at any time previous to her arrest, known to him. It is quite as probable she had absconded from service, and that she was arrested by him when he first obtained a knowledge of her residence. She appears by the proof, to have resided in the city of Baltimore anterior to the death of the testatrix, until the time of her arrest, and if she had been in the custody and service of the administrator at the time of the appraisement, still there is no evidence whatever, that she departed from that service with the knowledge or consent of the administrator.
The defendant prayed the court's instruction to the jury, that the plaintiff was not entitled to her freedom under the will of the testatrix, because the order of the Orphans' court of Queen Anne's county, was evidence to show an insufficiency of assets. We think, however, the court were right in refusing to [**10]  direct the jury as prayed for by the plaintiff, that the order of the Orphans' court was evidence of an insufficiency of assets.
The doctrine is conceded, that intendments are to be made in favour of judgments of courts of competent jurisdiction, and that facts, as inferences, may sometimes be drawn from their rendition. But these principles cannot be applicable to this case.
The order of the Orphans' court was ex parte, and is evidence for no purpose whatever in this case.
The proof of an insufficiency of assets, if such were the fact, was peculiarly accessible to the administrator; he had possession, or title to all the effects of the deceased, and 

 [*166]  might be supposed after such a lapse of time to know all the debts of the deceased. This he should have established by the ordinary media of proof, such being alone admissible as the best proof.
We therefore think, that the court were right in rejecting the prayer of the plaintiff, but wrong in the direction they gave to the jury.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

5 of 41 DOCUMENTS 

THE PENNSYLVANIA, DELAWARE and MARYLAND STEAM NAVIGATION COMPANY vs. THOMAS B. HUNGERFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 291; 1834 Md. LEXIS 24 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was an action on the case brought by the appellee against the appellants, on the 14th of April, 1832, to recover damages of them for carrying in their steam boat, out of the State, the slave of the plaintiff, whereby she was lost.

Issue was joined upon the plea of not guilty.

1. The plaintiff proved at the trial by William E. Hungerford, that in 1819, he purchased negro Henny (the slave in question) of Richard Batturs for $ 250. That afterwards he conveyed her to his brother, the plaintiff, who gave him liberty to use her free of all wages, until he should be married, and that the negro was in the possession of witness, under directions to be returned to his brother, at the time she was carried away from Baltimore. That on the 18th of March, 1828, a young gentleman came to the house of witness to inquire about this negro, and on the following morning a carriage came to his door, and drove off with her. That witness pursued, and saw her go on board the steam boat, and went down, and told captain Pearce of that steam boat, that he suspected she was on board. That Pearce then told witness to search for her every where but in the [**2]  ladies' cabin, which witness did, but could not find her, and having stated this to the captain, he promised witness, if she was on board to bring her back from Frenchtown. That the negro was carried to Philadelphia, and has never been returned. That when the steam boat returned, the witness saw captain Pearce, who informed him the slave was on board, and claimed by Batturs and his daughter at Frenchtown. That Batturs paid her passage and took her on. That she was a valuable house servant, worth $ 250.

The defendant then proved by captain Pearce, that on said Hungerford's representing to him that said negro was on board, which was from five to eight minutes before the boat left the wharf, he pointed to a police officer, and directed him, Hungerford, to go and take the officer and search all parts of the boat for the negro. That Hungerford did not take the officer, as far as he recollects. That witness did not prohibit Hungerford from searching any part of the boat. That officers are always placed on board these boats before their departure, to prevent runaways from escaping. That when the steam boat reached the canal, the witness saw a negro woman with Mr. Batturs, for whom Mr.  [**3]  Batturs paid as his servant; and in answer to captain Pearce's inquiries, represented, that she was his, Batturs', servant. That Batturs and Hungerford were both strangers to him. The plaintiff further proved, that the steam boat, of which Pearce was the commander, and in which the plaintiff's slave was carried out of the State of Maryland, was the property of the defendants.

Upon this proof, the defendants prayed the court to instruct the jury, that if they believed, that neither the defendants, nor their servants, or agents, were guilty of any misconduct or negligence, in permitting the escape of said negro, claimed by the plaintiff, that the plaintiff is not entitled to recover. But the court (PURVIANCE, A. J.) refused to give the instruction; and the verdict and judgment being for the plaintiff, the defendants prosecuted an appeal to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A principal is responsible for the negligence or misconduct of his agents or servants, while acting in his employment; and any person who sustains an injury by such negligence or misconduct, may resort to the principal for indemnity and redress.

Where the slave of the plaintiff was carried on board a steam boat of the defendant, an incorporated company, and the captain of the boat, on the eve of its departure, informed of the slave being on board, told the plaintiff's agent to search for her, but made no search for her himself, and the slave was in fact carried off in the boat, and lost to the plaintiff; the court would not permit the jury to consider whether the agents of the defendant were guilty of misconduct or negligence in permitting the escape of the negro, and HELD, that it was the duty of the master of the boat to have made such a search as would have prevented the escape of the slave, and not doing this, the owners of the boat were responsible.  

COUNSEL:
Johnson, for the appellants.

The argument of the counsel of the appellees, assumes what the evidence in the case does not justify, that the captain or the agent of the defendants, had actual knowledge that the slave in controversy was on board his boat, on the morning of the 19th March, 1828.

The [**4]  testimony of the witness from the appellee was, that he informed the captain that he suspected she was on board, not that he knew her to be there. This was a very few minutes before the boat's time for starting, and just as she was on the eve of leaving the wharf. The captain's evidence is, that he gave the witness referred to, unlimited permission to search the boat in every direction, and requested him to take a police officer, then on board, to aid in the search. The search proving unavailing, the boat left the wharf, and the captain was justified, from the fact that the search so made was unavailing, in inferring that the suspicions of the witness were unfounded. After arriving at the other end of the route, only one black person was found on board, and she was represented by the gentleman and lady with whom she was apparently travelling, to be their servant, and paid for accordingly. Under the circumstances, had the captain not a right to suppose that this was the fact, or would he have been authorised to have detained the woman, and her alleged owners, until he could send to Baltimore, or return to Baltimore, and find out the witness of appellee, who was entirely unknown to him,  [**5]  and submit to him the question of ownership?

It may be conceded, that color alone is prima facie evidence of slavery, without its affecting the question in the present case. The inquiry is not whether the woman was actually or constructively to the knowledge of the captain a slave, but whether she was the slave of the plaintiff, or rather of any one else than the alleged owners, in whose charge she was travelling. It would be attended with great practical inconvenience to masters, or with great injustice to carriers of this description, if they could never transport a slave apparently travelling with its owner, except at the hazard of liability to the true owner, should he be other than the apparent owner.

Where a slave is found on board a steam boat without a claimant, and an unsuspected one, it may be admitted, and policy requires that the rule should be so, that the company are responsible to the true owner for his value, should the slave be lost. But it is submitted that, in a case like the present, it would be as unjust as it would be impolitic, to hold the company to such a liability. The court are referred to the following acts of assembly, which are believed to be [**6]  all that can in any degree relate to this case. Take them altogether, and consider the whole as constituting a system, it is submitted that knowledge either actual or implied, is required to render the carrier responsible. April, 1715, ch. 19, sec. 5. Ib. 1715, ch. 44, sec. 4. Ib. 1744, ch. 19. 1753, ch. 9, sec. 2. 1805, ch. 96. 1817, ch. 112, sec. 6.

Gill, for the appellee.

This is an action on the case brought against the Navigation Company, to recover the value of a negro slave, carried off from Baltimore to Frenchtown and Philadelphia, in the steam boat of the appellants, and thus lost.

The case presented by the proof is, that the defendants after notice to their agent, the captain of one of their steam boats, carried off the slave of the plaintiff in their boat from Baltimore to Frenchtown, and that the slave was lost. The knowledge or notice of the fact that the negro was on board the boat, is admitted by the witnesses on both sides.

In this state of the case, the defendant prayed the county court to instruct the jury, that if they believed neither the defendant, nor their agents were guilty of any misconduct or negligence, in permitting the escape of the [**7]  negro claimed by the plaintiff, the plaintiff cannot recover. This was refused, and it is from this, the appeal was taken.

The form of the prayer admits the escape of the negro, and that too in the defendants' boat. But it insists, that whether the defendants were guilty of negligence was a question for the jury; that is, if the defendants adopted proper measures to prevent the escape of the negro they were not responsible. The proof does not show that the defendants' agents adopted any measures on this occasion; informed of the fact, they made no special search, he, (the captain) merely gave the plaintiff's agent an opportunity of searching for the negro. The defendant's own proof shows they were guilty of negligence. Informed of the fact, that the property of the plaintiff was on board of the boat, they carry it off, and this is negligence and misconduct.

This court has decided, that if a party knowingly takes off the apprentice of another, he is responsible in damages; that if, when he received the apprentice, he did not know the fact, yet coming to the knowledge of it afterwards, and then retaining or carrying off the apprentice, he is responsible. Fergusson vs. Tucker,  [**8]  2 Harr. and Gill. 82. Now upon the last proposition, even if this was for carrying off an apprentice, the appellant could not have put his defence upon the fact of his negligence; for negligent or not, knowing the fact that the slave was on board, and not putting her ashore at Baltimore, he is responsible to the plaintiff. Considering a slave as property, personal property, there can be no doubt, that for the agents taking off the property of the plaintiffs in the steam boat after notice, the owners would be responsible.

Where a slave, the property of the plaintiff, was carried from New Jersey to New York in the defendant's ferry boat, without the consent or permission of the plaintiff expressly given, the slave not returning, the defendant was held responsible for his value. Gibbons vs. Moore, 2 Halsted's Rep. 262. The second point decided in this case (p 263) shows that the acts and orders of defendants to prevent the escape of slaves, will not avail the defendants.

And this corporation is responsible for the acts of its agents. See Angel on Corporations, and cases there cited.

The act of 1715, ch. 19, sec. 5, gives an action for transporting any slave out of the province,  [**9]  and all negroes being prima facie slaves, the person transporting, carries them off at his peril.

Under the circumstances, it is contended to be entirely unimportant, whether the jury believed the defendant was guilty of negligence or not.

1. Their authorised agent had notice that the negro was on board.

2. Even if no notice existed, all persons trade with, or carry off negroes at their peril; their color demonstrates them to be slaves, and this puts all parties dealing with them upon inquiry.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*297]  STEPHEN, J., delivered the opinion of the court.
The rule of law is well established, that the principal is responsible for the negligence or misconduct of his agents or servants, while acting in his employment; and that any person who sustains an injury by such negligence or misconduct, may resort to the principal for indemnity and redress. We think when the witness of the plaintiff represented to the captain that he had reason to believe, that the slave of the plaintiff was on board his boat, it was a duty legally incumbent upon him to have made, or cause to [**10]  be made, such a search as would have prevented the escape of the slave from the service of her owner; and that if he failed in the performance of this duty, he was legally responsible for the consequences. The information he received was sufficient to have put him upon inquiry, and if he failed to make the necessary examination he acted at his peril, and his employers are responsible in point of law, for the loss which the master has sustained in consequence of that omission. Having failed to perform this legal duty, in consequence of which the slave was enabled to make her escape from the service of her master, we think that the company are responsible to him in damages, and that the court below were right in refusing to grant the prayer of the defendant. The facts given in evidence, if believed by the jury, were sufficient to establish a legal liability on the part of the company, and the court were right in refusing to submit such liability to their decision, upon the ground of negligence or misconduct, 

 [*298]  as stated in the defendant's prayer; as the granting of such direction might have had the effect of misleading them in the formation of their verdict. It is the peculiar [**11]  province of the jury, to find from the evidence the truth of facts, and it is the duty of the court to declare the law arising upon the facts, when so found by them.
The court we think were therefore right in refusing to give the instruction as prayed.
JUDGMENT AFFIRMED.  

6 of 41 DOCUMENTS 

CRESWELL'S Lessee, vs. STEPHEN LAWSON, 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 227; 1835 Md. LEXIS 21 

December, 1835, Decided 

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

Ejectment for a tract or parcel of land lying in the city of Baltimore, called "Cole's Harbour," commenced by John Creswell, the younger, in his life time on the 23d of November, 1830, and continued by his widow and devisee after his death.

The defendant took defence on warrant, and pleaded not guilty.

At the trial it was admitted by the defendant, that the land and premises for which the action was brought, were a part of "Cole's Harbour," for which a patent was duly granted on the 4th September, 1668. It was also admitted, that William Slater prior to, and upon the 24th May, 1810, was in possession of the said land and premises, and seized thereof--and the plaintiff then read in evidence a deed from said Slater, to John Creswell, the elder, bearing date on that day, by which in consideration of the sum of $ 12,000, the former conveyed to the latter and his heirs, the following described property, that is to say--"all that piece or parcel of ground lying in Baltimore town, now city, which Robert Slater by indenture, &c. conveyed to the said William Slater, and which is contained within the following metes and bounds, courses and [**2]  distances, beginning," &c. describing it by course and distance; "also all those two lots or parcels of ground situate in the south east addition to Baltimore town (now city) distinguished on the plat thereof by the numbers 23 and 686, which George Hussey by indenture, &c. conveyed to the said William Slater;" "also that part of a tract or parcel of land, lying and being in Baltimore county, called "Cole's Harbour" or "Todd's Range" which Samuel Smythe by indenture, &c. conveyed to the said William Slater," and describing it by metes and bounds, course and distance--"and all that lot or parcel of ground, lying in the county aforesaid, being part of a tract of land called Darley Hall, and distinguished on the plat thereof by the number 58, which John Fanner conveyed to the said William Slater;" "also all that piece or parcel of ground and premises, that is situate, lying and being in Baltimore county aforesaid, containing four acres or thereabouts," &c.

And the plaintiff further proved, that the said John Creswell died about the year 1814, leaving John Creswell, the younger, the reputed son of the first named John Creswell. That the elder Creswell was reputed to have married the [**3]  mother of John Creswell, the younger, when the latter was about twelve years old. That after the said reputed marriage, John Creswell, the elder, and the mother of John, the younger, lived together as man and wife, and that the former always acknowledged the latter to be his son.

That the said John Creswell, the younger, was the original lessor of the plaintiff in this case; that he survived his mother Elizabeth Creswell, and himself died some time in the year 1831, aged about 28 years; and it was admitted, that the said John Creswell, the younger, devised all his property, real, personal and mixed, to Rebecca E. Creswell, his wife, who is the present lessor of the plaintiff.

The will of John Creswell, the elder, was then read in evidence by the defendant, in which is the following clause--"Item, I do hereby devise and bequeath unto Alexander McKim, of the city of Baltimore and State of Maryland, all two lots, pieces or parcels of ground, with the premises thereon being, situate, lying and being in and near the city of Baltimore, which were heretofore, on or about the 24th day of May, 1810, conveyed to me by William Slater, merchant of the city of Baltimore, as will appear [**4]  by said deed, duly executed, acknowledged and recorded, among the land records of Baltimore county court, in Liber W. G. No. 110; to have and to hold the same to him, his heirs and assignees for ever. In trust nevertheless, for the sole and separate use of Mrs. Hannah Slater, widow of William Slater, merchant, for and during the natural life of her, the said Hannah Slater, and after the death of her, the said Hannah Slater, for the sole and separate use and benefit of Rebecca, wife of John Roy, Lydia Ball Slater, and Ann Sharp Slater, all children of Mrs. Hannah Slater, as tenants in common, and not as joint tenants. Item, I give and bequeath the foregoing lots of ground described as aforesaid, unto Alexander McKim, for the use of Hannah Slater, and heirs as aforesaid, only upon condition that he, or they, pay unto my executors such sum as shall be found due my estate from William Slater, deceased, aforesaid, any thing that may appear to the contrary notwithstanding.

This will was executed by the testator on the 17th of February, 1814, and proved on the 18th of April of the same year.

And the defendant proved by the exhibition of certain proceedings in the Chancery Court [**5]  of Maryland, he had been appointed trustee in the place of the trustee McKim named in the will.

Evidence was then offered to prove that the devisees mentioned in the preceding clause of Creswell's will, had elected to take other property, than that involved in this action; to resist the right that the defendant might set up, founded upon the supposition, that such right of election was conferred by the testator; but as this court decided, that no right of election was given, it is deemed unnecessary to introduce the evidence.

The defendant then moved the court to instruct the jury, that the plaintiff was not entitled to recover.

1st. Because there is no evidence that John Creswell, the younger, was the legitimate son, and heir at law, of John Creswell, the elder.

2nd. Because the payment of the debt from William Slater, to John Creswell, the elder, mentioned in the will of John Creswell, the elder, is not a condition precedent to the vesting of the title under the devise to Alexander McKim in trust, contained in the said will.

3rd. Because the true construction of the said devise to Alexander McKim in trust is, that the whole of the lots conveyed to John Creswell,  [**6]  the elder by William Slater, by the deed therein referred to, are devised to the said McKim in trust for the purposes therein mentioned, without the impediment of any condition precedent.

4th. Because if the construction given to the said devise in the last reason, be not the true one, then the true construction is, that two of the lots conveyed by said Slater to John Creswell, the elder, by the deed in the devise referred to, pass under the said devise, without the impediment of any condition precedent, and that the defendant hath a right to elect which two of the said lots he will; and hath sufficiently declared his election of the lot in the declaration mentioned, as one of said two lots.

5th. Because it is not necessary, to the exercise of the right of election, vested in the defendant, in order to entitle himself to the lot in the declaration mentioned, that he should confess a judgment in any action brought against him, for any of the other lots mentioned in the deed from Slater to Creswell.

Which prayer, the court (Archer, Ch. J.) refused to grant, but informed the jury, that there was evidence of the legitimacy, and heirship of John Creswell to go to the jury.  [**7]  That according to the will of the elder Creswell, McKim as trustee for the children of Slater, was entitled to any two lots he might elect to take, of those embraced in the deed, and that without showing the payment of the debt referred to in said will. That the defendant might make his election at the bar pending the trial of the cause, and might say which two lots he would elect to take, but that while this was permitted, they must abandon all right to the other two lots under this will, and that no efficacy should be given to their said election, unless they abandoned the defence of the suits instituted for the said lots by the plaintiff, which they did not elect to take.

Both parties excepted to the instruction given by the court to the jury. The verdict and judgment was for the defendant, and an appeal prayed by each party to the Court of Appeals; but the defendant subsequently dismissing his appeal, the cause came on to be heard, on the appeal of the plaintiff, before.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

S conveyed to C several parcels of property by the same deed, viz: 1st, All that piece or parcel of ground lying in B city, which R conveyed to S, and contained within the following metes and bounds, &c. 2nd. Also, all those two lots or parcels of ground situate in the S. E. addition to B city, distinguished on the plat thereof by the numbers, &c. and which H conveyed to S, and three other distinct parcels of land lying in B county, described by course and distance, &c. C by his last will devised to M as follows: "All two lots, pieces, or parcels of ground situate in and near the city of B, which were heretofore conveyed to me by S, as will appear by the above conveyance, particularly referred to in his will." The bequest was made to M in trust for the widow and daughters of S, "only upon condition that he (M) or they (the heirs of S,) pay unto my executors such sum as shall be found due my estate by S, deceased." In an action of ejectment brought by the heir at law of C, for the recovery of the parcel of land first mentioned in the deed from S to C--it was held, that two, and two only of the six pieces of ground conveyed by S to C, passed under C's will, that those were the two lots situate in the S. E. addition to B city; that no right of election was given by the will, and that the payment of the sum due from the estate of S to C, was not a condition precedent to the vesting of the title to the two lots aforesaid.

Whether a condition annexed to a devise is a condition precedent or subsequent, is a question that does not depend upon the order in which the words creating the condition stand in the will; but upon the order of time in which it is required to be performed, according to the intention of the testator, to be collected from the whole of the will, respect being had in looking for that intention to the subject matter of the devise, and the nature and object of the condition.

No precise technical words are necessary to the creation of a condition precedent or subsequent, either in a will or deed, but the same words may be construed to operate either as the one or the other, according to the evident sense in which they are used, as indicated by the instrument.

So where property was devised only upon condition, that the devisees should pay a debt claimed by the testator, and there was no contingent limitation over of the property devised, in case of a failure to pay the debt--the debt claimed not being a creature of the will, existing and being recoverable without its aid--and the acceptance of the devise making the debt a charge upon the land devised, and that the testator had not made any intermediate disposition of the rents and profits, or use of the property as a means of procuring payment of his debt before any interest should vest, are all circumstances indicating the testator's intention not to create a condition precedent.

The right of election may be given by will, either expressly or by implication.

A right of election is implied where it is necessary to give effect to a devise, and where there is evidence in the will to show that the testator was indifferent as to what selections were to be made by his devisee; but it is not implied in cases of patent ambiguity, or where there is nothing indicating the intention to give the right, or where by an attempt at description (though erroneous,) the testator points to the specific property he intended to devise.

The heir being favoured in law, there should be no strained construction to work a disherison where the words are ambiguous.

Where the intent of a testator is apparent, no word shall be added or rejected, to defeat such intention which must prevail if it does not violate some settled principle of law.

Where the intention of a testator is ascertained, a word manifestly omitted by mistake as "all two lots," instead of "all those two lots," may be added to carry into effect that intent.

Where the description of the thing intended to pass is otherwise sufficiently certain, the addition of a circumstance false or mistaken, or of a subsequent defective description, will not violate the correct description or frustrate the grant or devise.

So where two lots were granted by a certain description "with the premises thereon" and in fact there were no improvements on them, this will not violate the grant.  

COUNSEL:
JOHNSON, and LLOYD for the appellant contended.

1. That under the will of the elder Creswell, the payment to the testators, executors of such sum as was due to his estate by [**8]  William Slater, deceased, was a condition precedent, and that nothing vested in Alexander McKim, the trustee, nor in the cestui que trusts till such payment. Watchman & Bratt vs. Crook, 5 Gill and Johns. 255. 1 Term Rep. 645. Acherly vs. Vernon, Wills. Rep. 157, note. 2 Black. Com. 154. Acherly vs. Vernon, Wills Rep. 153, 161. Jarrett's Lessee vs. Conly, 6 Harr. and Johns. 259.

2. If, however, the payment of the money should not be considered as a condition precedent, still the devise in question is void for uncertainty. The deed from Slater to the testator must have been before him when he prepared the will, as is manifest from the particularity with which he refers to it; it is therefore a part of the will--Powel Dev. 49. Habugham vs. Vincent, 2 Ves. 228. And yet, though there are several pieces of property to which the description employed would not be inapplicable, there is nothing by which it can be known with any degree of certainty, which the testator designed to give. Richardson vs. Watson, 24 Eng. C. Law Rep. 164. When this is the case, the heir at law will not be deprived of his inheritance. Thomas, Lessee vs. Turvey, 1 Harr. and Gill 435. Powel on Dev. 411. Thomas ex [**9]  dem vs. Thomas, 6 Term Rep. 677. Good title ex dem Richardson vs. Edmond, 7 Ib. 640.

3. But if the devise is not void for uncertainty, then those lots, to which the description is most appropriate shall pass, and they are the two "in the south-east addition to Baltimore." Ashforth vs. Bower, 23 Eng. C. L. R. 119.

The right of election was not given, because of the inapplicability of the description in the will, to the subjects out of which the election is proposed to be made. Ashforth vs. Bower, 23 Serg. and Lowb. 119. If the testator had given a portion out of a mass of property, without saying out of what part of the whole the part given should be taken, there would have been an election. But that is not the case here--The deed which must be regarded as a part of the will, describes the different pieces of property separately and distinctly, and the testator says he means to give a specific portion of the property so described. The doctrine of election never applies except where the devise would otherwise be void for uncertainty; nor does it ever apply when the thing out of which it is made consists of distinct portions, unless the whole are mentioned, and there is nothing [**10]  to show which was intended to be given. 4 Bac. Maxims 79. Richardson vs. Watson, 24 Serg. and Lowb. 164. Here the whole were not mentioned, but only a part, and that in terms from which the intention of the testator may be fairly inferred.

4. If the testator however designed to give the right of election, it has already been exercised, and cannot be re-exerted in the manner attempted in this case; nor could it be made after the death of McKim the trustee, named in the will. The right of election in this case, if one existed, was not to take by one of two titles, but one of two things, and when the latter is the case, its right must be exerted in the life-time of the party authorized to make it. Hayward's case, 2 Coke 35, 36 (a). Vandenburg vs. Van Bergen, 13 Johns. Rep. 212. Jackson ex dem vs. Van Buren, Ibid. 525. Coke Lit. 145 (a). 2 Bac. Abr. (election) 444.

EVANS and MAYER for the appellee.

1. According to the true construction of the will, all of the lots contained in the deed from Slater to the testator passed. There is no pretence for saying that the devise is void for uncertainty. If absolute certainty was required in every devise, cases growing out of the true [**11]  construction of wills would never arise, and the fact of the multitude of such cases and the doubts and difficulties, which have frequently perplexed the courts, in arriving at their true meaning, shows conclusively that such entire certainty is not necessary. If the rule was, as is contended for on the other side, the courts instead of endeavouring to arrive at their true construction, would have dismissed them all, by suggesting the doubt, and the pronouncing the wills void for uncertainty. But instead of doing this, they task their ingenuity, and penetration, to discover the true intention of the testator. 4 Danes Abr. 600. 8 Viners Abr. title Devise (d) 19. Richardson vs. Watson, 24 Serg. and Lowb. 166.

The regard which it is said the courts feel for the heir at law, only arises, when the question relates to the quantity of benefit claimed for the devisee. When the doubt is, as to the identity of the thing given, such regard is not entertained, and more especially is this the case, when the will as in this case, makes special provision for the heir. 8 Viner, Devise, (d) 15, 19, 22. Miller vs. Travers, 21 Serg. and Lowb. 290. Thelluson vs. Woodford, 4 Ves. Jr. 329. Leigh vs.  [**12]  Leigh, 15 Ves. 103. Doe ex dem Humphrey vs. Roberts, 7 Serg. and Lowb. 150. 2 Term, 499. Doe ex dem Hick vs. Dring, 2 Maule and Selw. 454. 2 Preston on estates, 160, 196. Powel on Devises, 279. Doe ex dem Michaud vs. Crawford, 3 Halsted 97.

The denomination used by the testator, applies to the whole property, and consequently the whole passes. 6 Cruise. Devise, ch. 10, Sec. 54. The word "two," is to be rejected, as unnecessary. If the testator had said, "all the lots, which are two," there can be no doubt, that all would have passed, and the words used, are in effect the same. 2 Burr. Rep. 1092. St. John vs. Bishop of Winton, Cowper 94. Mosley vs. Massey, 8 East 149. Goodright ex dem Lamb vs. Pears, 11 East, 58. Marshall vs. Hopkins, 15 East, 309. Good title ex Radford vs. Southern, 1 Maule and Selw. 299. Down vs. Down, 2 Serg. and Lowb. 130. Doe ex dem Humphreys vs. Roberts, 7 Ib. 150. Doe ex dem Newton vs. Taylor, 14 Ib. 56. Doe ex dem Gore vs. Langton, 22 Ib. 166. Ashforth vs. Bower, 23 Ib. 119. Jackson vs. Clark, 7 Johns. Rep. 223. Jackson vs. Loomis, 18 Ib. 84. Loomis vs. Jackson, 19 Johns. Rep. 450. Doe vs. Roe, 1 Wend. 547. Dorsey vs. Hammond, 1 H. and J. 193, 201. Hammond [**13]  vs. Ridgely, 5 H. and J. 246. Buchanan's Lessee vs. Stewart, 3 H. and J. 329.

2. If this construction is not the sound one, still two lots passed under the devise, to be taken at the election of the devisee. There is nothing to show that the testator meant any two lots in particular, the deed to which he refers embracing more than two, and that reference being made, not for the purpose of designating which two were designed to be given, but for the purpose of indicating by what title he held, and the mass out of which the selection was to be made. 2 Bac. Abr. 441, title Election. Powel on Devises, 283. 8 Viner, Devise (d) Pl. 11. Richardson vs. Watson, 24 Serg. and Lowb. 164, 165. Habugham vs. Vincent, 2 Ves. Jr. 228. Hayward's case, 2 Coke 36, (b). 2 Ship. Touch. 250, 433. Hunt and Parks vs. Gist, 2 H. and J. 498.

3. That the right of election had not been forfeited, in any way, and was duly exercised in this case. 2 Coke 36. Hunt and Parks vs. Gist, 2 H. and J. 498. 2 Bac. Abr. 442. 2 Viner, Election, (c) Pl. 13.

4. The condition annexed in the devise, is a subsequent condition, and its antecedent performance not necessary to the vesting of the estate. 1802, ch. 94,  [**14]  Sec. 2. 5 Viners, Condition, (t) 16. 44. Taylor vs. Mason, 9 Wheat. Rep. 325. Powel on Dev. 248. The primary object of the testator, was to confer a bounty on the Slater family. The second, to secure the debt due from William Slater to his estate, and both these objects are best accomplished, by construing the condition, a subsequent one.

It seems perfectly apparent, that the testator designed, that the devise should take effect at the moment of his death, which could not be, if the payment of the debt is a condition precedent; because at that time, the amount of the debt had not been, and could not have been ascertained. Nay, if the thing devised, should exceed in value the amount of the debt, it would be the interest of those, who alone knew the amount, to conceal it from the devisee, in which case, if it be a condition precedent, the devise must fail altogether.

These questions always depend upon intent, and the courts incline to construe such conditions, as subsequent. Avelyen vs. Ward, 1 Ves. Sr. 420. 1 Term. 645. Finlay et al vs. Kings Lessee, 3 Peters. S. C. R. 374. Taylor vs. Mason, 9 Wheat, 325. 1 Powel on Devises, 248. Hunt and Parks vs. Gist, 2 H. and J. 498. Jarrets [**15]  Lessee vs. Cooly, 6 H. and J. 259. Thomas Lessee vs. Turvey, 1 H. and G. 435.  

JUDGES:
BUCHANAN, Ch. J. and STEPHEN, DORSEY and CHAMBERS, Judges.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*237]  BUCHANAN, Chief Judge, delivered the opinion of the court.
A variety of questions have been raised in this case.
1. Whether the devise in the will of John Creswell, the elder, to Alexander McKim, in trust for the use of Hannah Slater for life, and after her death, for the use and benefit of Rebecca, wife of John Roy, Lydia Ball Slater, and Ann Sharp Slater, children of Hannah Slater is void for uncertainty?
2. If not void for uncertainty, whether the property devised, is designated with sufficient certainty, to ascertain the particular lots intended to be given; or whether a right of election was given, as out of a designated mass, from which the subject of the devise was to be taken?
3. If a right of election was conferred, whether that right has been exerted, in a manner authorized by law, by a person having authority to make the election?
4. Whether, if there has been such an election, it was made in due time?
5. Whether the title to the property devised, vested in the devisee [**16]  before election, so as that a suit instituted before, could be defeated by an election made at the time?
6. Whether the devise to McKim for the purposes of the trust, did or not operate to pass the whole of the property conveyed, to the testator, John Creswell, the elder, by the deed from William Slater to him, therein referred to;--And,
7. Whether the payment of the debt due from William Slater, which is annexed as a condition to the devise, is or not a condition precedent to the vesting of the title under the devise?

 [*238]  The conveyance from William Slater, to the testator, John Creswell, the elder, referred to in the will, is of premises designated in five separate and distinct clauses in the deed. The action was brought for, "the piece or parcel of ground lying in Baltimore town," designated in the first of these clauses of the deed from William Slater to the testator, John Creswell, the elder; which is resisted upon the hypothesis, that either the whole of the premises conveyed by the deed, passed by the will of John Creswell, the elder, to McKim, for the purposes of the trust, or if only two lots passed, then that the right [**17]  of election devolved under the devise upon McKim in the first instance, and afterwards upon Lawson, the substituted trustee, and defendant in the action.
The title of the testator, John Creswell, the elder, to the premises in question, is not disputed; and the lessor of the plaintiff claims as devisee of John Creswell, the younger, who was the heir at law of the testator, John Creswell, the elder.
A great deal of legal research has been brought into the argument of this cause, with thought, ingenuity, and professional skill, spread over an extensive range of legal learning. And the case at first view is not without some difficulty. If the whole of the property, conveyed by the deed of the 24th of May, 1810, from William Slater to John Creswell, the elder, passed under the devise in his will to McKim; or if not the whole, but only two lots or parcels of it passed with the right of election, and the "piece or parcel of ground," for which the suit was brought, has been selected in the due exercise of that right, as one of the two lots authorized to be chosen; or if two lots and no more passed, which are designated in the devise with sufficient precision to [**18]  be ascertained, and the lot in controversy, is one of the two so designated; in either case, the plaintiff can have no right to recover; unless the payment of the debt, if any, due from William Slater to the testator, is to be considered as a condition precedent to the vesting of the title under the devise, which has been so broken, as to leave the title of the heir at law, under whom the plaintiff claims in full force. Of the payment of 

 [*239]  which debt, if there was any thing due, there is no evidence, nor any thing to show an excuse for not paying it; nor any proof in relation to that subject.
Assuming in this part of the case, that two lots, and no more, were intended to be devised, and that the description given in the will, is sufficiently exact and certain to pass the lots intended; still, it is not pretended, that the piece of ground for which the action was brought is one of those two lots, there being no designation of it as one of them; nor any thing to be found in the will, from which such an inference can be drawn, under any construction of it. And it is only on the ground, either, that the whole of the property covered by the deed from William Slater [**19]  to Creswell, the elder, passed under the devise to McKim, in Creswell's will; or that it passed two lots or parcels of it, which are not designated, with the right to elect to take any two of the several parcels of ground mentioned in the deed; and that this particular piece of ground, has been selected, in the due exercise of that right, that the defence set up, can be sustained against the otherwise conceded title of the plaintiff.
One or the other of those grounds must be maintained, or the defendant must fail in his defence. And even then, if the payment of the sum found to be due to the testator, from William Slater, is to be considered as a condition precedent to the vesting of the estate under the devise; there being no evidence or pretence of such payment, or offer to pay it, at any time; nor of any excuse for not making it.
Inverting then, the order of the questions presented in the argument, the first inquiry will be, whether such payment was annexed to the devise as a condition precedent.
In support of the affirmative of this proposition, many authorities were cited; among which, were Cary vs. Bertie, &c. 2 Vern. 333, and Acherley vs.  [**20]   Vernon, Wills 153, that were chiefly relied upon; but which when examined, will be found not to bear so strongly upon this case, as has been supposed, but to be very distinguishable from it.
Whether a condition annexed to a devise is a condition 

 [*240]  precedent or subsequent, is a question that does not depend upon the order, in which the words creating the condition stand in the will; but upon the order of time, in which it is required to be performed, according to the intention of the testator, to be collected from the whole of the will; respect being had, in looking for that intention, to the subject matter of the devise, and the nature and object of the condition. Nor are there any precise technical words necessary to the creation of a condition precedent or subsequent, either in a will or in a deed; but the same words may be construed to operate, either as the one or the other, according to the evident sense in which they are used, as indicated by the instrument. Upon this principle, all the cases are professed to have been decided.
The two cases of Cary vs. Bertie, and Acherley vs. Vernon, will be briefly noticed, because they have been much relied upon. In [**21]  the former, Cary vs. Bertie, &c. the devise was of the real estate of the testator to trustees in fee, upon trust, to pay what debts and legacies his personal estate should not be sufficient to satisfy, and then in trust for his niece, who was his heir at law, for life, &c. "in case she should within three years after his death be married to Francis Lord Guilford," and "in case such marriage should not take effect within the said three years, then in trust," &c. for another--and afterwards in a codicil, it was provided, "that if the marriage should take effect before years of consent, and should not afterwards be ratified, when she was of competent age," she should have no benefit of the trust, other than she should have had, if the marriage had never been solemnized." The marriage of the niece with Lord Guilford, was held to be a condition precedent, on the ground, that by the will, it was plainly the intention of the testator, that she should not have his estate, unless the marriage took effect; Lord Hale adding, that the codicil put it beyond doubt. Which is very strong, and almost in terms declares it to be a condition precedent, "that she should have no benefit [**22]  of the trust," &c. which was almost equivalent to his 

 [*241]  having said, that no benefit or interest should vest in, of accrue to her, until the marriage should first have taken place Besides the rents and profits for the three years after the death of the testator, were to be applied to the payment of the debts and legacies; a circumstance, that was seized upon by the Lord Chancellor, saying that in the meantime, nothing either descended or vested--which was certainly a very strong circumstance, to shew the intention of the testator to have been, that nothing should ever vest, except upon the contingency of her marrying within the time limited by the will. This case, however, is stated at the foot to have been taken to the House of Lords, and there compromised. But in note 2 of the report, it is said to have been reversed in the House of Lords--and in 1st Salk. Rep. 231, it is also stated to have been reversed. In Acherley vs. Vernon, the question arose on the will and codicil of Mr. Vernon, who after bequeathing to his sister an annuity for life, to be paid half yearly out of the rents and profits of his real estate, and a legacy to his niece, [**23]  &c. gave and bequeathed, all his estate, real and personal, to several, in trust for the payment of the annuity and annual rents, before bequeathed to his wife and sister, and other persons, &c. and to settle his estate to other uses therein directed. And in the codicil inserted this clause--"But my mind and will is, that what I have so given to my sister and niece, be by them accepted and taken, in lieu and satisfaction of all they or either of them, might claim out of my real or personal estate, and upon condition, that they release all right and title thereunto, unto the executors and trustees in my will named." The suit was brought for the arrears of the annuity, from the time of the testator's death, by the husband of the sister, as her administrator, she being dead, and never having made the release required by the codicil. And after four several arguments, it was decided, that her giving the prescribed release, was a condition precedent--upon the ground, that it appeared to be the intention of the testator, that it should be so, from the peculiar wording of the clause creating the condition; and 

 [*242]  that he intended she should not have the annuity, unless she first performed [**24]  it.
Those two cases (as all cases must be) were each decided upon their own peculiar circumstances, which were very strong. But neither of them is this case.
In Cary vs. Bertie, the interest was not to vest, and could not vest under the devise, on the death of the testator, and was only to take effect on the happening of a specified contingency, within a limited time after his death--and in the meantime, the rents and profits were to be applied by the trustees, to the payment of debts and legacies, shewing the intention of the testator to have been, that his niece should take nothing, except on the happening of the contingency; and if it should not happen, then that the estate should continue in the trustees, for the other trusts created by the will; and that no benefit should ever accrue to her from the trust. And therefore her marrying Lord Guilford, was considered as a condition precedent, that being the contingency upon the happening of which, the trust was to inure to her benefit--moreover it was a condition, that there were no means of obtaining a compliance with, otherwise than by making the benefit of the devise, to depend upon the prior performance of it.
In  [**25]  Acherley vs. Vernon, the first payment of the annuity, was not to be made on the death of the testator, Mr. Vernon, nor until six months after; and it was expressly given, and to be accepted in lieu and satisfaction of all, that his sister might claim out of his real or personal estate, and in consideration of the contemplated release of such claim, without making which, she was not to have the annuity, but the estate was to stand discharged from it. And not that she should receive the annuity, and yet at the same time, be at liberty to dispute the devisee's right to the estate; which it was the object of the condition to guard him against. The annuity was given, and to be accepted in lieu, or as an extinguishment of any claim, she might have upon the estate. To relieve it from such claim, and not to charge it with the 

 [*243]  annuity, and leave it at the same time, subject also to the claim. And the release was the consideration, upon the execution of which, the annuity was to be paid. And as a test of the meaning of the testator, and to shew, that he intended the execution of a release, as a condition precedent, the court said, speaking through the Chief Justice Willis [**26]  , that the devisee of the estate, Mr. Vernon, had no remedy to obtain the release, but by stopping the payment of the annuity. Stress was also laid upon the particular phraseology of the clause in the codicil, creating the condition, saying, that all the words were in the present tense, which was just the same as if the testator had said, I give her the annuity, she releasing.
Now, this case is not marked by the same strong characteristics, as will be seen upon a fair analysis of it.
The provision annexed to the devise to McKim, in trust for the use of Mrs. Slater, for life, and afterwards for the use of her three children named, is in these words, "only upon condition that he, or they, pay to my executors, such sum as shall be found to be due my estate from William Slater, deceased"--with no contingent limitation over of the property devised, nor any further disposition or mention made of it in the will. Differing in that, from Cary vs. Bertie, where in the event of the niece not marrying Lord Guilford, within three years after the death of the testator, the estate was to go over to another; and in the meantime, nothing to descend to, or vest in the niece, (who [**27]  was the heir at law,) who was to take nothing under the devise, except upon the contingency of her performing the condition imposed; upon which her right depended, and was to accrue. And unlike the case of Acherley vs. Vernon, where the estate was devised to another, subject to the payment of an annuity, to the sister of the testator, in lieu of, and in consideration of her releasing any claim she might have upon it. The object of the testator being, that the devisee should hold and enjoy the estate, discharged in the manner prescribed, from such claim, subject to the payment of the annuity in consideration of such discharge, 

 [*244]  and that his sister should not have the annuity, until she executed the release required. And unlike both of them in this, that the debt if any, which was due from William Slater, is not a creature of the will, but existed independently of it; for the recovery of which, a remedy at law would have been open to the executors of the testator, although no such condition had been annexed to the devise. And it is not necessary that the vesting of the title under the devise, should depend upon the previous performance of the condition, as the only [**28]  remedy or means of obtaining the payment of the debt, the thing required to be done.
As in Cary vs. Bertie, where there were no means of obtaining the performance of the condition, the marriage of the niece with Lord Guilford, except the making the benefit of the devise to depend upon the marriage. And in Acherley vs. Vernon, where it is said, as one of the grounds of the decision, "that there was no remedy to obtain the release, but by stopping the payment of the annuity." Here, the acceptance of the devise, would make the payment of the debt a charge upon the property, and give a full and complete remedy against the devisee for the recovery of the money. There is therefore no absence of remedy, from which it is to be inferred, that the testator intended it as a condition precedent; nor any necessity for so considering it, in order to gratify his apparent intention.
The devise to McKim is in fee, and upon no other trust expressed, than for the use of Mrs. Slater and her three children. And treating it as an absolute disposition of that portion of his estate, the testator proceeds to dispose of all the residue of his property, directly, and not in trust, "in  [**29]   order (as he says) to the settlement of his estate," taking no notice whatever of that which is devised to McKim in trust.
His object was, to make an immediate provision for Mrs. Slater and her three children; requiring only, as a consideration for that provision, the payment by them, or the trustee, of whatever might be found to be due to him at the time of his death, from William Slater, her deceased husband, after 

 [*245]  the amount should be ascertained. No time is fixed for the payment, but it is required to be made by the trustee, or cestui que trusts, Mrs. Slater in her life time, or her three children after her death; he did not know that any thing would be due, and nothing might be, nor does it appear that any thing was due. He must have known that much time might elapse before the amount due, if any, was ascertained or made known by his executors, and having made no disposition in the meantime of the rents and profits, supposing that he had parted with all his interest in the property, he could hardly have meant, that it should lie useless during that time, in the hands of the trustee, without advantage to the cestui que trusts, for whose benefit [**30]  alone it was intended, or to any body else; which would have been inconsistent with the idea of an immediate provision for them.
And the circumstance of his not having made an intermediate disposition of the rents and profits, or use of the property, as a means of procuring the payment of whatever might be due, before any interest should vest, goes far to shew that he did not intend such payment, as a condition precedent, but only as a consideration for the immediate bounty bestowed, secured as a charge upon the property, to be paid when the amount of the debt should be ascertained. And the condition annexed to the devise must be so considered, and not as operating as a condition precedent.
A different construction would offer violence to the apparent intention of the testator, which should always be gratified, where the words of the will, will permit it to be done, without violating some known principle of law.
With respect to the right of election claimed by the defendant, it is not to be questioned, that it may be given by will, either expressly (which is not done in this case,) or by implication. By implication, as where a man having 100 acres of wood land in the county of B.  [**31]  devises "10 acres of his wood land in the county of B.; or having two lots in the city of B. devises one of his two lots in the city of B. without designating the 10 acres of wood land, or saying out of what part 

 [*246]  of the 100 acres they are to be taken, or without designating which of the two lots; in either case, a right of election is given to the devisee and he may take the 10 acres out of any part of the 100 acres, or select which of the two lots he pleases. In such a case, an election is necessary to give effect to the devise; and the omission to make a designation shewing it to be indifferent to the testator what selections is made, is evidence of his intention to give the right of election. But the rule is otherwise in the case of a patent ambiguity, which if it cannot be aided by construction, renders the devise void for uncertainty. Or where there is nothing indicating an intention to give the right of election, but it is apparent that the testator intended to make a designation of the thing designed to be given. In which case the right of election does not arise under the will, and the devise will fail to take effect, if the thing intended to be devised, cannot [**32]  be ascertained. As in Richardson vs. Watson, 24 English C. L. Rep. 164; where the testator having two closes in Kirton, in the occupation of John Watson, but supposed he had only one, described the land intended to be devised, in these words, "and also the close in Kirton aforesaid, now in the occupation of said John Watson," which was held not to be a case of election; the chief justice saying, that "an election can only take place where the intention of the devisor or grantor is clear, that out of a mass, a certain portion should be selected"--and there being nothing to show, which of the two closes the testator intended to give, the devise was determined to be void for uncertainty. It was not because the description of the close (there being two) was so uncertain that it could not be ascertained which of the two was intended, that it was held not to be a case of election; but because there was a description given. For the right of election can only exist, where it appears from the context of the will, or grant that the testator or grantor intended to give such right. And the giving a description, however imperfect or uncertain, and though through mistake [**33]  (as in Richardson vs. Watson,) showing a selection in the mind of the testator or grantor 

 [*247]  himself, is opposed to the supposition, that he intended to give the right of election to the devisee or grantee.
Trying the case before us by this test, there does not seem to be much difficulty in reaching the conclusion, that the right of election was not intended to be given by this will. If the devise had been of "two of the lots," and conveyed, &c. the word "two," in that connection would have been descriptive not of the two, intended to be given, but of the quantity or number only, to be selected by the devisee; according to the apparent intention of the testator, out of a mass, or out of the whole number of lots or pieces of ground conveyed by the deed from William Slater, which being referred to, is to be considered as incorporated into the will. And a plain case of election would have been presented. But that is not the language of the will.
The words of the first of the clauses of devise to McKim, are, "all two lots, pieces or parcels of ground with the premises thereon, situate, lying and being in and near the city of Baltimore, which were heretofore [**34]  on or about the 24th day of May, 1810, conveyed to me by William Slater."
Now what is there in these words, to show either, that the testator intended to pass the whole of the property covered by that deed, or to give to the devisee the right of election?
If only two lots had been conveyed by Slater, no question could have arisen; but six distinct and separate pieces of ground were conveyed, and if the testator had intended to pass the whole, why was the word "two" introduced in the will, knowing there were six, as is shown by the reference to the deed, by which his title to the whole was acquired. The words all the lots conveyed, &c. would have been sufficient, if all was intended; and there could have been no mistake in supposing there were but two. At least none is shown, or to be presumed. On the contrary, in the absence of all other evidence upon the subject, it is to be taken from the reference to the deed, the consideration of which is expressed to be $ 12,000, that the testator was acquainted with its contents 

 [*248]  and knew that it conveyed six pieces of ground, as well as he knew that it conveyed two.
It must therefore be understood, that the word "two,  [**35]  " was used to denote the intention of the testator, to give but two of the six pieces conveyed. It could have been used for no other purpose, and would not only have been unnecessary, if all were intended to be given, with a knowledge that there were six, but repugnant to that intention.
The word "all" it has been supposed, shews the intention of the testator to have been to pass the whole six pieces of ground mentioned in the deed referred to. To give to it that effect, would be to reject the word "two" altogether, which cannot be done. It was unnecessary, but coupled with the word "two," to which it relates, "all two lots," it must be restrained by the word "two" and understood to mean, all the two lots, or the whole of the two lots, &c., the word "the" being omitted; which, or the word those is necessary to the sense. And so read, (and it will bear no other sensible reading) it is apparent, that the testator intended to give two lots only, and not the right of election; but to designate himself, the two lots which he meant should pass.
This construction is strengthened by the next immediately following clause, in these words, "I give and bequeath the foregoing [**36]  lots or parcels of ground, described as aforesaid, unto Alexander McKim," &c.; treating and speaking of it as a description of the lots intended to be given, and thus plainly showing, that it was not the intention of the testator to give the right of election. And that description sufficiently designates the two lots intended.
It is an acknowledged principle, that the heir being favoured in law, there shall be no strained construction to work a disherison where the words are ambiguous or doubtful; but it is also settled, that where the intent of the testator is apparent, no word shall be added or dropped, to defeat such intention; which must prevail, if it can be carried into effect without violating some settled principle of law.
Let us see upon further examination, whether by deciding 

 [*249]  that two lots only were intended to be given by this will; and that they are described with sufficient certainty to give effect to that intent, and preclude a right to elect which two to take, either of these principles will be contravened.
There are five clauses in the deed from William Slater, describing the property conveyed; each designating the particular portion it professes [**37]  to describe.
That portion which is contained in the first of these clauses, is described by courses and distances, &c. as "all that piece or parcel of ground lying in Baltimore town, now city." That contained in the second, as "all those two lots or parcels of ground situate in the south-east addition to Baltimore town, now city, distinguished on the plat thereof, by numbers 23 and 686." That contained in the third clause, by courses and distances, &c. as "all that part of a tract or parcel of land, lying and being in Baltimore county, called Cole's Harbour or Todd's Range," &c. The fourth as "all that lot or parcel of ground lying in the county aforesaid, being part of a tract of land called Darbey Hall, and distinguished on the plat thereof by number 58"--and that portion which is contained in the fifth clause, as "all that piece and parcel of ground and premises, that is situate, lying and being in Baltimore county aforesaid, containing four acres or thereabouts; the same being part of a tract of land called Darbey Hall, &c. and distinguished on a plat of said land, by number 36," &c. And the devise in question, is of "all two lots, pieces or [**38]  parcels of ground, with the premises thereon, situate, lying and being in and near the city of Baltimore, which were so conveyed, &c. by William Slater." This deed by which six pieces of real property, described in five separate clauses, were conveyed, is not only referred to, but its date, the place where, and the folio in which it is recorded, are particularly stated. It must therefore at the time, have been before the scrivener who wrote the will, or the testator himself if he wrote it, or fully recollected, and its contents known.
Looking to this deed, and to the devise made in reference to it, of which it is to be taken as a part, in relation to the 

 [*250]  description of the property, what appears to have been the intention of the testator? Not to dispose of all the pieces of property conveyed by it, because knowing there were six, which he must be presumed to have known, he has in terms devised but two, and could not therefore have intended, that the whole six should pass; and for the description of those two, refers to the deed--In which three of the six pieces are described as lying in Baltimore county, (not in the city) and one of those three, as containing [**39]  about four acres. One other piece, is described not as a lot, but by courses and distances, &c. as a "piece or parcel of ground; lying in Baltimore city." And the two other pieces, are described in a separate clause, as a distinct portion of the property conveyed and as all those two lots or parcels of ground situate in the south-east addition to Baltimore city, setting out their respective numbers, as city lots. Two only of these six pieces of property are expressly devised; and they are spoken of in the second clause of the devise, as being described in the first, which refers to the deed from Slater, for their description; where we find two lots situate in the south-east addition to Baltimore city, described as a portion of the property conveyed.--If those two lots, are not the lots intended, there is no description in the deed, of any two lots, by which the lots intended to be given, can be ascertained; and the devise must fail to take effect for uncertainty; the evident intention of the testator to designate them, being inconsistent with, and opposed to any intention to give the right of election to the devisee.
But it was manifestly his intention to pass two [**40]  lots described in the deed; and that intention must be gratified, if they can with sufficient certainty be ascertained. If adopting the words of the deed, the devise had been of "all those two lots or parcels of ground, situate in Baltimore city," conveyed, &c., by Slater, omitting the other words of description in the deed, there could have been little doubt upon the question, and it could be considered as clearly relating to that portion of the property conveyed, which is described, in 

 [*251]  one of the clauses, as two lots lying in the city; there being no other lots, described as such; and as lying in the city, in that or either of the other clauses, the addition as in the deed, of the words, "in the south-east addition to," or of the number of the lots, would have rendered it perfectly clear; but the description would have been sufficient without either, not being incompatible, but perfectly consistent with, the more full description in the deed, and by the reference to the deed adopting it. He intended to give two lots described as such, and to designate which two, and thought he had done so, by the reference to the deed for their description; the deed in a separate [**41]  and distinct clause, describes two lots, and no more, as such, "all those two lots;" no other portion of the property conveyed, is described as two lots, but each of the other pieces is separately described, in separate clauses; only one of which is called a lot, and that described as lying in Baltimore county, and not intending, that the trustee, or the cestui que trusts should be at liberty to select any two of the six pieces, who might differ in opinion, and not be able to make a selection, but designing to make the selection himself; and the devise being of an immediate interest to vest upon his death, the intention of the testator, to give the two lots described together in the deed, as such, is sufficiently apparent--and effect will be given to that intention, and the devise be saved, by reading it, "all those two lots," as in the deed, adding the word "those," to give it sense; instead of "all two lots," which requires some word to give it meaning. And where the intention of a testator is ascertained, such a word may be added to carry it into effect; the evident presumption being, that it was omitted by mistake. Reliance has been placed by counsel in argument,  [**42]  on the words in the devise, "and near," as denoting lots, not lying within the city of Baltimore, or that one at least of the lots intended did not lie in the city. But the word "and" may be read or, and both may be considered as incautiously superadded, and as mere surplusage. The rule being, that where the description of the thing intended 

 [*252]  to pass, is otherwise sufficiently certain, the addition of a circumstance false or mistaken, or of a subsequent defective description, will not vitiate the correct description, or frustrate the grant or devise--As in Goodtitle vs. Southern, 1 M. & S. 299, cited by Littledale, justice, in 24th English Com. Law Rep. 167. Where the devise being, of "all that my farm called Braques farm, now in the occupation of A," when in fact it was not in the occupation of A., the subsequent defective description, was held not to vitiate the previous correct one. The same principle is recognized in Jackson vs. Clark, 7 Johns. 217, and in Worthington and others vs. Hylye and others, 4th Tyngs. Mass. reports, 196, and in other books. The same may be said of the superadded words to the description [**43]  in this devise, "with the premises thereon," the proof being, that the two lots described in the deed, as lying in the south-east addition to Baltimore city, were at the time of the devise unimproved; which for that reason, it is supposed were not the two lots intended, the words, "with the premises thereon," being construed to mean improvements. But that is to be considered, as an unnecessary, and unimportant addition by the scrivener; a trifling inaccuracy in the description.--As in Jackson vs. Clark, before adverted to, where the addition of the words "with a dwelling-house thereon;" there being no dwelling-house on the premises, was held to be of no consequence--The two lots described in the deed, as lying in the south-east addition to Baltimore city, are the only two lots, answering in any manner to the description given in the devise; and must be considered, as the two lots intended, and in the mind of the testator, at the time of making his will.
Briefly to recapitulate; no right of election was given by the devise; two, and two only, of the six pieces of ground conveyed by Slater to the testator, passed under it, and they are the two lots described in that [**44]  deed, as two lots or parcels of ground situate in the south-east addition to Baltimore town, now city, numbered 23, and 686. And the payment 

 [*253]  of the sum, that has, or may be found to have been due from William Slater to John Creswell, the testator, is not a condition precedent, to the vesting of the title to the two lots devised.
The several questions discussed in relation to the exercise of a right of election, have not been examined; the decision that no right of election exists, making it unnecessary.
The judgment must be reversed.
JUDGMENT REVERSED.  

7 of 41 DOCUMENTS 

JOHN L. ZEIGLER vs. FREDERICK SENTZNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 150; 1836 Md. LEXIS 15 

December, 1836, Decided 

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

The bill was filed in this cause on the 21st February, 1834, by the appellee, and charged, that the father of the complainant at the time of his death, and for a long time before was a butcher and victualler of the City of Baltimore, and that a long time previous to his death rented and obtained from the Mayor and City Council of Baltimore the use and occupation, and the right to use and occupy a certain stand in the Marsh or Centre market house, one in the Lexington and one in the Hanover market house, in the said city, for the purpose of vending meats. That he died possessed thereof, and all the rights and privileges attached thereto; that among other valuable rights and privileges of his father, in and to said stands, and growing out of his occupancy thereof, were the right of pre-emption, and the good will of his father therein. That his father died intestate--that administration was granted to his widow, who removed from Maryland; that it is unknown, whether she is alive or dead; that his father's debts are all paid; that the administratrix in consideration of one hundred dollars, consented that the complainant should have the full benefit [**2]  of said stands; that upon the death of his father the right of pre-emption and good will descended upon complainant, and vested in him or in the administratrix for the use of the personal representatives of his father; that it was of great value; that on the death of his father the complainant being an infant, his uncle was about to renew licenses for said stands, in the name and for the use of complainant, when a certain John L. Zeigler, a butcher and victualler, applied to the said administratrix and uncle, for permission to enter upon said stands as trustee for the use of complainant, and promised that if they would permit him so to do, that he would faithfully execute said trust and account for the rents and profits when complainant came of age; that they consented, and defendant in consequence took possession of said stalls and held, used and rented them out for a long time, &c. that complainant is now of full age and defendant has refused to account with him. Prayer for an account and general relief, &c.

An order of publication was also prayed and granted, and publication made against the administratrix as an absent defendant.

The answer of Zeigler, the defendant, alleged [**3]  that the renting of the stalls by the complainant's father was from year to year, every year being a new renting and requiring a new license; that the father was indebted to him; that he has not been paid, and the complainant had no right in the stalls until his father's debts were paid; that the administratrix did not consent that complainant should have the stalls; that the pretended right of pre-emption and good will did not descend as alleged, and particularly as the children of deceased were minors and unable to carry on the business of victuallers, that the renting is at the discretion of the Mayor and City Council of Baltimore, exercised through the Mayor, who refuses to renew when the rent is in arrear. The answer denied all solicitation, contract or agreement for the use and benefit of complainant touching the said stalls, and asserted that defendant acted on his own sole account, or that he made any profit from them.

A commission was issued and evidence taken, upon which an account was stated, and at March term, 1836, Bland, Chancellor, passed a final decree ordering the defendant to bring into court to be paid to the plaintiff the sum of $ 1,565, with interest from [**4]  11th March, 1836, and costs.

On the 12th May, 1836, the complainant filed a petition praying for a fi. fa. which the Chancellor ordered to issue. On the 16th, defendant prayed an appeal, and on the 17th he filed a petition (with an appeal bond,) stating his ignorance that a decree had passed in the cause, until the day before, and that the plaintiff before the defendant had received any notice or knowledge of the decree, had levied an execution on his real property, and that unless the execution was stayed or set a side, he could derive no benefit from his appeal, which he has prayed and secured by bond, the complainant being unable to respond to any decree of restitution, &c. in the event of a reversal. This petition the Chancellor dismissed: and on the 7th June, 1836, the defendant filed another petition, reiterating the grounds of his former petition, that the complainant was about to sell his property, and offering to pay the principal, interest, and costs of the decree into court upon condition that the execution should be stayed. This petition was supported by the affidavit of the defendant and one other person. Upon which the Chancellor passed the following order:

Ordered [**5]  that all further proceedings under the said writ of fi. fa. be stayed pending the said appeal, unless otherwise ordered by the Court of Appeals on an application to be made to that court within the first ten days of the next ensuing term thereof on the Western Shore, provided, that the said petitioner forthwith bring into this court the said principal sum with the interest thereon and the costs, including the costs of the proceedings on the said writ of fi. fa. and upon this petition; to be deposited by the register in the Farmers' Bank of Maryland, as usual; and in case the further proceedings under the said writ of fi. fa. should not be suspended or stayed by the Court of Appeals, pending the said appeal, then the said money and costs so brought in under this order to be paid to the said plaintiff, otherwise to remain and abide the event of the said appeal--provided, that a copy of this order together with a copy of the aforegoing petition be served on the said plaintiff, and also on the said sheriff before the said sale on the 9th inst. This was done on the 8th June.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

A court of equity has no jurisdiction over what is called "good will," and where a bill was filed upon a contract alleged to be of that description, claiming of the purchaser or party in possession, an account of rents and profits, arising from certain stalls in market houses in the City of Baltimore, the bill was dismissed, but under the circumstances of the case, without costs.

For the violation of such a contract, if the subject be one fit for a contract, the remedy is at law, where damages may be given by a jury.  

COUNSEL:
It was agreed by counsel, that the motion in relation to the fi. fa. under the Chancellor's [**6]  order of the 7th June, and the general merits of the cause should be argued together.

MAYER, for the appellant, contended:

Upon the merits that the allegation of the bill as to any trust for the complainant is absolutely denied, and there was no evidence to countervail the answer. There was no proof of profits derived; and the evidence was contradictory as to the value of the good will of the stalls. The case if reduced to one for mere specific performance by re-delivering the stalls is defeated, for they have since been sold. If put upon the ground of express contract, a court of law is the proper forum for the complainant. There was his remedy. The action for money had and received would have given him full redress. A court of equity has not jurisdiction over a mere good will right. Baxter vs. Connelly, 1 Jacob and Walk. 556. Over such a right as this, flowing from a municipal corporation and dependent on the rotation of its officers, the action must be at law. Bozen vs. Farlow, 1 Merr. 459.

Upon the motion to stay execution, it was apparent that the execution had been pursued with unparalleled speed. The defendant had no notice of the decree, until he saw his property [**7]  advertised for sale. In that way he was informed of the decree, and thus his right of appeal was virtually intercepted. Is this court obliged to order the money in court to be paid to complainant, or the fi. fa. to proceed? The fi. fa. will not be ordered, for the money is here to answer all its objects. A sale is unnecessary in this case. The object of the law and the command of the writ are both gratified as the fund is here. It is then a question of equitable discretion upon the whole cause, whether the court will part with the fund. It is within the case of Thompson vs. McKim, 6 Har. and John. which shows the control of this court, over this and similar cases. The superior equity is to secure both parties. One in his property and the other in his right of appeal. The rule is, that to prevent a sale an appeal without security shall not avail, but if this debt is fully secured the court require no more, and here the money in court will not be put in jeopardy until the final right is decided. Willes Rep. 271. There ought to be notice of a decree in Chancery given before execution, 1785, ch. 72, sec. 25, 1818, ch. 193, sec. 4. A demand of the decree is dispensed with by the latter [**8]  act, is dispensed with on the ground of practice, but notice is not. The court are in full possession of the cause and now exercise a discretion regulated by the whole cause.

SPEED, for the appellee, filed notes of his views.

T. P. SCOTT, for the appellee.

The object of the bill, is to obtain an account of rents and profits of certain victuallers' stalls in the market houses of Baltimore, and a specific performance by a re-delivery of them to the complainant, or payment equivalent to their value. These stalls become profitable from the known good conduct of their proprietors, and a custom has long prevailed of renewing the licenses for them to the same person, and upon his death, to his representatives. The custom has created a right, and the good will of a butcher's stall is a thing of profit according to the established reputation of the proprietor. The evidence establishes that the defendant entered into the contract charged, and that such contracts were usual. Then is a good will right the subject matter of contract? Are its incidental benefits the subject of sale? Bunn vs. Guy, 4 East, 190. Such contracts will be enforced. 2 Bin. 437. Seaman vs. Price, 9 Serg. and [**9]  Low. 469. 7 Cowen, 307. Simons vs. Stewart, 1 Cond. Ch. R. 39. There were particular circumstances peculiar to the cases in 1 Jacob and Walk. 560, and 1 Merrivale, 459, cited on the other side, which reduced the courts to decline enforcing them, so far as they go to establish a general want of jurisdiction they are overruled by, 1 Cond. Ch. R. 39. The counsel here considered the evidence to show the value of the right in question. The question of jurisdiction as it was not excepted to is not open now under the act of 1832, ch. 302, sec. 5.

Upon the question of execution, no notice was necessary. It had been under the act of 1785, but this grew to be a grievance which was remedied by act of 1818, ch. 193. What necessity is there for a copy to be served on adversary, if not for demanding compliance with the decree? And when the demand is dispensed with, why give notice to induce the defendant to appeal or make way with his effects. All the complainant had to do was to petition for a fi. fa. which he did. We had a right to be in haste, an old man thrust himself in between an infant complainant and his relations, and kept him out of valuable rights. The record teems with the defendant's [**10]  frauds, and the appeal only follows out his original intentions.

When a fi. fa. has once been levied, a writ of error with bond will not stay it. Beatty's Admrs. vs. Chapline, 2 Har. and John. And as the Chancellor has left it to the discretion of this court, under this rule we demand an immediate order permitting us to proceed.

R. JOHNSON, for the appellant in reply, discussed the following questions:

1. Whether the complainant was entitled to relief upon the case made by his bill?

2. Whether if entitled upon the proof?

3. If entitled to any relief, is he so entitled to the extent awarded by the decree?

The case made by the bill is, that the ancestor of complainant at one period was possessed individually of a right in certain stalls in the Baltimore market houses. That he died intestate, leaving a widow and two children. The stalls are regularly rented for a pecuniary rent, and licensed for a license fee annually renewed. The charter of the city gave the power, and makes it the duty of the corporation to regulate the markets for the benefit of the community. The bill charges no usage which gives to the proprietor under this annual lease, the right of [**11]  a renewal to the proprietor or his children. The usage charged is one merely to sell, as between the proprietor and the purchaser. The city may disavow this contract and not renew to the purchaser. I forbear to inquire whether any usage could be ingrafted to take from the City of Baltimore, the right to change the duty, or to impose any obligation upon her officers to renew to the widow or first and second son of a deceased stall-renter. What then is the bill? The complainant seeks to enforce a contract as between defendant and himself, or others for him, by which he has been induced to part with a subject of property. It assumes but that for this, the complainant would have had an existing transferable right which the laws can notice.

At the death of the ancestor, he left no representative capable of doing the business of a victualler, to manage the stalls; or competent to answer to the city for the rent and fees. At his death, if some other person had not sought the stalls, the corporation must have rented them to another butcher. Now the court sees the complainant can only claim by proof of usage of a right in the minor to renew in his own name, or in the name of a trustee [**12]  for his benefit. For if he has no right which the law can notice, and the stalls reverted to the corporation at the expiration of the ancestor's annual license, and complainant had no right by no contract to relinquish could he be injured. There may be contracts in relation to good will, as where the vendor has the right, and contracts not to act in his trade founded on good consideration may be enforced, because injurious to the proprietor. All these contracts are founded upon a right which is surrendered; an obvious, legal right, but there is no case conferring a right of action short of this.

Is there then on the bill and proof a case which equity can relieve? The general rule is, that when there a remedy at law, there should be no interposition in Chancery. Adair vs. Winchester, 7 Gill and John. 114. Dilly and Heckrotte vs. Barnard, ante. The want of jurisdiction may be urged at final hearing. The act of 1832, does not interfere with that question nor the want of parties. The exceptions under that act are confined to the evidence, and the sufficiency of the averments of the complainant, provided the proof shows he had a cause of action. The point is open, can Chancery grant [**13]  relief? There is no resemblance between the case, 1 Cond. Ch. R. 39, and Jacob and Walk. 556, and 1 Merr. 459. Whether a contract is valid at law or not, or whether damages be recoverable there, parties cannot be relieved in equity, if it is impracticable to execute an agreement specifically, as where lapse of time has rendered it impossible--and if there be an adequate remedy at law for violation of a contract, the result is the same. As to specific performance that cannot be decreed against this defendant, for at the end of every year the possession reverted to the city, and no decree could pass against her, nor was she bound by any usage. If there was such a contract the remedy must be at law. 1 Gill and John. 221. A defendant cannot be turned into a trustee for the sole purpose of conferring jurisdiction. 1 Con. Ch. R. 39. The counsel then proceeded to discuss the second and third propositions first stated by him, which relate exclusively to facts. The motion for suspending the execution he submitted on the argument of his colleague.  

JUDGES:
The cause came on to be heard before BUCHANAN, Ch. J. and STEPHEN, ARCHER, DORSEY, CHAMBERS, and SPENCE, Judges.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*158]   [**14]  CHAMBERS, Judge, delivered the opinion of the court.
The bill in this case does not claim a specific performance of the contract charged. That is impossible, inasmuch as the defendant, now the appellant, has not and never had the title to the property or thing in relation to which, or to the rights attached to it, the contract is said to have been made.
It cannot be sustained as claiming an account for property belonging to an infant, upon which the appellant entered, thereby making himself liable as guardian, because the title to the property occupied never was in the complainant.
Fraud is not alleged in the bill, nor does it profess to be a bill for a disclosure. We have not been able to discover to which head of Chancery jurisdiction we are to refer for the authority to grant the relief claimed in this bill.
The argument for the appellee seems to assume, that there is something in the character of what is termed in the bill, "good will," to vest such jurisdiction in regard to a contract for the sale of it. In Cruttwell vs. Lye, 17 Ves. 335, good will is defined to be, "the probability that the old customers 

 [*159]  will resort to the old place," and [**15]  considering this to be what is intended here, we perceive nothing in its character requiring us to adopt such a doctrine upon principle. A careful examination of the cases referred to, and others, has not resulted in finding any decision, asserting that courts of equity will assume jurisdiction over contracts because they relate to good will. They countenance rather the contrary opinion. 1 Chit. Gen. Prac. 858, 859, and the cases there cited.
For the purpose of the argument we will concede the utmost, which the complainant, the appellee, here can claim, that good will is as much the proper subject of contract and sale as another vendible property--that the contract of sale is distinctly and sufficiently alleged in the bill and proved by the testimony; yet we think this must be considered a bill claiming damages for the violation of a contract, the appropriate and ample redress for which is to be found in a court of law, at the hands of a jury.
With this view of the case it is unnecessary to enter into a minute examination of the facts as alleged, or to attempt a reconciliation of the testimony.
If a valid contract has been made, and can be established to entitle the appellee [**16]  to recover for its violation, his remedy is at law, not in equity; if no such contract can be established, he can have no ground of claim before either tribunal.
The decree in this case is accordingly to be reversed; and the bill dismissed; but under all the circumstances of the case without costs. The court will sign a decree accordingly; and also an order directing the money deposited by the appellant to be repaid to him.
DECREE REVERSED.  

8 of 41 DOCUMENTS 

WHITE, et al, vs. WHITE, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 208; 1835 Md. LEXIS 18 

December, 1835, Decided 

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

The present bill was filed on the 22d November, 1833, by the appellants, a portion of the heirs and representatives of Abraham White, against the appellees, who stand in the same relation to the deceased, for the purpose of selling his real estate, legal and equitable, for distribution among them, upon the ground, that it would not admit of an advantageous division, and that the interests of all the parties concerned would be promoted by such a proceeding.

The bill, the statements of which, were admitted by the answers alleged, that a part of said estate was situate in the city of Baltimore, in Maryland, and another part in the State of Pennsylvania.

The sale of the whole was prayed for, that the proceeds might be distributed as aforesaid, after deducting therefrom, the amount of an unsatisfied mortgage upon the Baltimore property, executed by the deceased in his life time.

The cause was submitted upon the bill and answers, and Bland, Chancellor, on the 7th of January, 1834, decreed that, "as to the lands in the proceedings mentioned, lying and being within the State of Pennsylvania, and beyond the jurisdiction of this State,"  [**2]  the bill be dismissed with costs; limiting his decree for a sale to that portion of the property, which lies within this State.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

Upon a bill filed by some of the heirs of a deceased person, against other heirs, for the sale of the deceased's real estate, upon the ground that it would not admit of an advantageous division, and that the interest of all parties concerned would be promoted by a sale, in respect to which there was no controversy between the parties, it was held, that Chancery had no jurisdiction to decree a sale of land in another State.

The absence of the power to enforce a decree, or to compel a compliance with its mandates, is a good test of the jurisdiction of the court of Chancery.

Chancery cannot decree in rem, when the thing against which the decree goes, and is alone the subject of, and to be operated upon by it, is beyond its territorial jurisdiction.

Where a decree is in personam, and may be carried into effect by process of contempt, Chancery may have jurisdiction, although it should affect land in another State, as in a case of trust, fraud, or contract--specific performance of a contract affecting land in another State. The defendant being in the State, or the land being in the State, and the defendant being out of it.  

COUNSEL:
T. P. SCOTT for the appellants contended--

1. That the court of Chancery had jurisdiction over the whole subject mentioned in the bill, and should have decreed according to the prayer. Carroll vs. Lee, Adr. 3 G. and J. 509. Penn vs. Lord Baltimore, 1 Ves. Sr. 154. Lord Cranstown vs. Johnston, 3 Ves. Jr. 182, 183. White vs. Hall, 12 Ves. 321. 1 Harr. Ch. Pr. 47, 48. Massie vs. Watts, 6 Cranch 148. 2 Peters' Cond. Rep. 332, 333.

The law of descents from parents to children, is the same in Pennsylvania, as in Maryland, so that the rule of making distribution according to the ex loci sitae, cannot interfere with this case. We do not dispute the order of succession, but say, that the debt charged on the estate for the use of one of the heirs, ought to be taken from his share; and to this he has assented by his answer.

No counsel argued for the appellees.  

JUDGES:
Heard before BUCHANAN, Ch. J., and STEPHEN, ARCHER, CHAMBERS, and SPENCE, Judges.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*210]  BUCHANAN, Ch. J. delivered the opinion of the [**3]  court.
The bill in this case was filed for the sale of the real estate of Abraham White, deceased, and the distribution of the proceeds among his heirs, after deducting the amount of a subsisting lien, by mortgage, on a part of it; on the ground that it will not admit of an advantageous division, and that it would be to the advantage of all the parties interested, that it should be sold, which is admitted by the answers. A tract of land, part of this estate, is stated in the bill, to lie in the State of Pennsylvania, as to which the chancellor dismissed the bill for the want of jurisdiction, and decreed a sale of that portion of the property, which lies in this State, appointing a trustee for that purpose. And the only question is, whether he should not also have decreed a sale by the trustee, of the tract of land in Pennsylvania.
It would be rather an idle thing in Chancery, to entertain jurisdiction of a matter not within its reach, and make a decree which it could have no power to enforce, or to compel a compliance with. And the absence of that very power is a good test, by which to try the question of jurisdiction. It would be a solecism to say, that the chancellor [**4]  has jurisdiction to decree in rem, where the thing against which the decree goes, and is alone the subject of, and to be operated upon by it, is beyond the territorial jurisdiction of the Chancery court, and not subject to its authority, and the decree if passed, would itself be nugatory for the want of power, or jurisdiction to give it effect. Chancery can have no jurisdiction, where it can give no relief. Now what jurisdiction 

 [*211]  has the Chancery court of Maryland over lands lying in a foreign country, or in another State; and having no jurisdiction of lands so situated, what authority has it to decree a sale of them, and impart to its trustee authority to go into such State, or foreign country, to carry its decree into effect, by making sale of them.
It is true, that where the decree sought, is in personam, and may be carried into effect by process of contempt, the court of Chancery here, may have jurisdiction, although it may affect land lying in another State, the defendant being in the State of Maryland, as in a case of trust, or fraud, or of contract. As where a bill is filed against a person in this State, for the specific performance of a contract,  [**5]  or agreement, relating to land in another State. In such a case, the decree does not act directly upon the land, but upon the defendant here, and within the jurisdiction of the court. So where the land itself, that is sought to be affected, lies within the State, and the proceedings are against a person residing out of the State.
But in this case, the bill seeks a sale of land in Pennsylvania, not within the jurisdiction of the court of Chancery of Maryland; and the decree if made would not be in personam, but for the sale of the land, through the instrumentality of a trustee, and could not be enforced by any process from that court. It is not like the case of Penn vs. Lord Baltimore, 1 Ves. 444, where the bill was for the specific performance of articles concerning the boundaries of the then provinces of Maryland, and Pennsylvania, Lord Baltimore the defendant being in England, and subject to the compulsory process of Chancery there. Nor like the other cases to be found in the English Chancery reports, affecting lands not lying in England, where the proceedings were in personam, the defendants residing there, and subject to process [**6]  of contempt, &c.
DECREE AFFIRMED WITH COSTS.  

9 of 41 DOCUMENTS 

ELIZABETH ANN HALL vs. THOMAS L. HALL, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 386; 1834 Md. LEXIS 35 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   Appeal from Baltimore county court.

This was an action of Trespass Q. C. F., commenced by the appellant against the appellees, on the 15th October, 1832. The defendants pleaded not guilty.

The plaintiff gave in evidence that all of the defendants came to the house of the witness, situate on the Baltimore and York Turnpike Road, and about two miles from the house and premises where the acts mentioned in the declaration were committed, at about ten o'clock on Monday night, the second day of January, 1832, and said, that they the defendants, were going up to Mrs. Hall's, the plaintiff, to take Kilbourn, and requested the witness, who kept a public house, to have supper ready against their return. That they the defendants returned to the house of the witness, after twelve o'clock on the same night. They said on their return, that they had been to Mrs. Hall's house, but that they did not find Kilbourn. They went and returned in sleighs. James Blakeney, one of the defendants, on the return of the defendants, stated, that he and defendant Hall, got into the house, that they gave the door a kick, and got in. That Duncan, one of the defendants, was a constable. And further gave in [**2]  evidence by the son of the plaintiff, that the plaintiff, the witness, and the plaintiff's three youngest children, were all in the house mentioned in the declaration, on the morning of the 2d of January, 1832. That Thomas L. Hall, one of the defendants, came to the house the same morning, and demanded entrance; that the doors of the house were locked, or fastened, and that the mother denied him entrance, that said Hall then said, that to save his feelings, he would get some one to do it for him. That on the night of the same day, he and his mother were awakened out of sleep, about eleven o'clock at night, as witness thinks, by the noise and cries of persons around the house. That the witness first heard defendant, Thomas L. Hall, at the front door of the house, who cried out "open the door," and then began to beat on the door; witness thinks he well knew the voice of said Hall; that others cried "open the door;" that the back door was burst open by some one, witness supposes by James Blakeney, as he first, entered into the house through that door, and went directly into the adjoining room, which was the plaintiff's bed room, where his mother then was, and said, with an oath, have [**3]  you got no lights here? Make haste and get a light. That Abraham Blakeney had a sword. That Thomas L. Hall snatched the key of the chamber door of said house out of plaintiff's hand, and went up stairs, and locked the said door, when he came down and locked up the plaintiff's clothes. That while they were crying and beating at the doors, and before they got into the house, the plaintiff and the witness cried murder| And that some of the persons without, cried out "yes, (with an oath) we will murder you all as soon as we get in|" Before they entered into the house, some of them threw a club against the plaintiff's bed-room window, and broke out several pains of glass. That the plaintiff and the witness were very much frightened. That Thomas L. Hall told the plaintiff he meant to sleep there that night, but that he had lost the chamber door key, and told the plaintiff that if she fastened up the house again, he would do the same thing again. That witness found an axe at the front door the next morning, and saw that six or seven of the palings of the fence around the house had been broken by the defendants, or some of them, in one place, and five or six in another. That the plaintiff [**4]  and all her children left the house next morning by day light, and went to Mr. Ebaugh's house.

The defendants then read to the jury a deed, executed on the 9th of February, 1827, from William Hall Spicer, the father of the plaintiff, to Mark Grafton, of several tracts or parcels of land, and personal property, to be held by the grantee in trust for the use of the grantor, during his life, and after his death, in trust, for his daughter (the plaintiff) and her four children, share and share alike, as tenants in common. And gave in evidence by the grantee Grafton, that he, Grafton, attended to the business of said William Hall Spicer, the grantor in said deed of trust, before his death. That he was requested to take the deed of trust, because of the infirmity of the old man, and the habits of intemperance of his daughter, the plaintiff. That he, Grafton, went into full possession of the whole of the property at the said grantor's death. That Mrs. Hall, the plaintiff, then being a widow, was living on the place, which had belonged to her husband, Harry W. Hall. That he, Grafton, requested her to take possession of the said trust property, a short time after her father's death, in [**5]  April or May, 1829. That the object or intention of Grafton in placing her there was, and it was so agreed between them at the time, that she and the children should eat and wear, each, her, and his fifth part of the proceeds of the property under the deed of trust, reserving to himself the right at all times to manage and control all the trust property by himself and agents. That he, Grafton, left Nehemiah Price, Edward Hall, Thomas L. Hall, and Mr. Morthland, to be occasionally in attendance on the property during his absence. That Kilbourn went to live with Mrs. Hall in the spring of 1831; that he was there some time before he, Grafton, knew it; that he thought it was wrong, but he hoped Kilbourn's own good sense would induce him to leave the place; that in the latter part of December, from 29th to 30th, he, Grafton, was before Walter Worthington, a justice of the peace in Baltimore county, to make complaint again Kilbourn. That he, Grafton, having been informed that Mrs. Hall had gone to town, and that the children were not on the place, he gave the following power of attorney in the afternoon of the 31st of December, to Thomas L. Hall, to take possession.

"To all whom it [**6]  may concern, be it known, that I do hereby constitute and appoint Thomas L. Hall, as may manager and agent, to act and transact for me, and in my place, in all manner of things and management of the farm and negroes, stock, plantation utensils and furniture of every kind, on the farm and plantation formerly owned by William Hall, alias William Hall Spicer, deceased, which property was by said William Hall conveyed to me, for the purposes and conditions therein specified and mentioned; and I do hereby authorize the said Thomas L. Hall to manage and exercise all authority in, and on said farm, and over the negroes and property for the care taken, and management of the same, that may in his judgment be necessary, giving unto him the right of exercising the same authority that I would, or could, were I present myself. And I do hereby put him in full possession of the place, and all the property as above, so to manage for me, and for my use, subject, however, to any further or other order from me, or by me, as I may judge expedient. This power and authority to be, and remain in force until by me revoked. Witness my hand and seal, this thirty-first day December, eighteen hundred and thirty-one.  [**7]  M. GRAFTON, [Seal.]"

The defendants further proved by Walter Worthington, that as a justice of the peace, he issued a state warrant, on or about the 22d December, 1831, for the arrest of E. G. Kilbourn, upon the complaint of Mark Grafton. That the warrant and complaint are lost, thinks they were lost in June last. The defendants offered by said Worthington to give parol evidence of the contents of said complaint, which was made on oath, and reduced to writing upon the same paper with the warrant, and also parol evidence of the warrant itself. To which evidence, the plaintiff, by her counsel objected, but the court over-ruled the objection; and the said witness testified, that he thought it was on Friday before Christmas, that Mr. Grafton made oath that he had good cause to fear, and was afraid that a certain E. G. Kilbourn of Baltimore county, would do his person, and property, which he had in trust from William Hall, deceased, as by the deed of trust is expressed, certain injury, and craved the protection of the law; that on the same piece of paper, which contained the said oath reduced to writing, then followed the warrant to arrest Kilbourn, directed to any sworn constable,  [**8]  returnable forthwith, before said Worthington, at Smyser's tavern. Kilbourn appeared and applied for a continuance until the 30th, when Grafton appeared; thinks he witness required Kilbourn to enter into a recognizance; does not recollect in what amount, but thinks he told him the amount must be in proportion to the character of the offence; that Kilbourn did not enter into a recognizance; and not wishing to commit him, took his recognizance in $ 100, that he should appear next day a Mallony's; on the 31st, he, Worthington, appeared at Mallony's, and waited until he heard that Kilbourn and Mrs. Hall had gone to town; that afterwards on the second or fourth of January following, after the meeting at Mallony's, that said warrant which had been returned by Adam Sharer on the 30th December, 1831, when Kilbourn appeared as above mentioned, was altered, so that it was directed to     Duncan, or any sworn constable, and without any other alteration, it was delivered to defendant, Thomas L. Hall; that two or three days after the alleged trespass, he Worthington, went upon the place to value the property; that he particularly examined the property to see what injury had been done; as he [**9]  had heard that considerable injury had been done; that he did not examine the palings, nor the windows; that he delivered the said warrant, when it first issued, to Mark Grafton, and it was then addressed to any sworn constable; that he was applied to by Thomas L. Hall, to go to the place to appraise the property, could not see any glass broken in the bed room; there was no return day in the warrant as it first issued--it was returnable forthwith. Said Worthington further testified, that his recollection, respecting the oath of Grafton first made before him, may not be as distinct as he could wish; that when he was going on, administering the oath, when he came to the part expressing his, (Grafton's) fear to his person, that Grafton stopped him, and objected, but afterwards thinks, upon some remarks made by him, witness, that he consented to include, fear of his person, and he distinctly recollects, that he did make oath to his personal fear.

The plaintiff then gave in evidence by Elbridge G. Kilbourn, that a day or two before the 29th December, 1831, Adam Sharer, constable, served upon him, Kilbourn, a warrant, requiring him, the said Sharer, to have him, Kilbourn, before Walter [**10]  Worthington, at Smyser's tavern, on the 29th December; that he, Kilbourn, wrote a copy of the complaint, which preceded the said warrant, and which was on the same paper--that the following is the copy of said complaint, in his own hand writing, and comprises all that he wrote.

(Copy.)     State of Maryland, Baltimore county, sc.

Whereas, Mark Grafton has, this 23d day of December, 1831, appeared before me, the subscriber, a justice of the peace for Baltimore county, and made oath on the Holy Evangels of Almighty God, that he has great reason to fear and is afraid, that a certain E. G. Kilbourn, of Baltimore county, will do his property, which he had in trust from William Hall, deceased, for the purposes, as by said trust is expressed, certain damages and injury, contrary to the peace, and good order, and dignity of the state of Maryland, and therefore prays the protection of the law.

W. Worthington.

To Adam Sharer, constable.

That he wrote in haste, but believes he made an exact copy of the original as far as he wrote, except that he thinks, that the name of Walter Worthington, was signed in full; that he and the constable, Sharer, who was present when [**11]  witness made the copy, compared it with the original after it was made, and found it correct; that witness afterwards heard the original read over by Walter Worthington, or when witness appeared before him on said warrant. That witness does well recollect the substance of the original warrant, and the complaint therein recited, independently of the said copy, and he is confident that there was not in the original, any thing expressed about Grafton's fear to his person, but only to the property which he held in trust from William Hall.

He further proved, that Grafton agreed with the plaintiff, that she should continue to hold the farm and trust property of which she was then in possession, for five years from the 21st of April, 1831, for the use and support of herself and children.

The plaintiff, further to support the issue on her part, gave in evidence by Adam Sharer, a witness, that he as constable had a warrant issued by Walter Worthington, for the arrest of E. G. Kilbourn. That said warrant was dated on or about the 23d of December, 1831, was directed to him, Adam Sharer, by name, and made returnable before Walter Worthington on the 29th of the same month, at Smyser's [**12]  tavern; that when he served said warrant on Kilbourn, he, Kilbourn, requested a copy thereof, and that he, Sharer, saw the copy when it was made, (being the same mentioned in the testimony of Kilbourn) and compared it with the original with Kilbourn. That he believes it to be a true copy as far as it goes. That he is confident there was not in the complaint on the warrant any thing about the fear of Grafton to his person. That this circumstance, and also the circumstance of the warrant having a return day, and its being made returnable specially before Walter Worthington, are reasons why he recollects the contents of said warrant. That Kilbourn appeared at Smyser's on the 29th of December, 1831, the return day of the warrant, but Mr. Worthington was not there. That on the next day, the 30th, Mr. Worthington was at Smyser's, with Grafton and others. That Worthington sent for him, Sharer, and enquired where the warrant was, and Kilbourn; that he, Sharer, told him the warrant was returnable on the 29th, and that Kilbourn had appeared on that day at Smyser's. That Worthington at first denied it was returnable on the 29th, but admitted his mistake when the warrant was produced. That he,  [**13]  Worthington, then wrote on the back of the warrant, "continued until the 30th, returnable forthwith," and gave it to witness, and requested him to go and bring Kilbourn on the warrant, which witness did, he, Kilbourn, making no objection to going; that Kilbourn appeared before Worthington, who read the warrant over to him, and demanded of Kilbourn, to enter into a recognizance to the amount of $ 2400, with securities, which Kilbourn would not do.

Upon the whole evidence, the plaintiff, by her counsel, prays the opinion and instruction of the court to the jury as follows.

1st. If the jury believe that Mrs. Hall, the plaintiff, was in the actual possession of the house and premises, upon which the acts were committed by the defendants as given in evidence, and at the time when they were committed, then such possession is sufficient in law, to entitled the plaintiff to maintain this action, notwithstanding the deed of trust from William Hall (otherwise called William Hall Spicer,) to Mark Grafton.

2d. That the paper purporting to be a power of attorney from Mark Grafton to Thomas L. Hall, dated the 31st December, 1831, did not authorize the said Hall, or any of the defendants [**14]  to commit the acts complained of in the declaration in this cause, or of which evidence has been given to the jury, and that said paper is not a justification of those acts.

3d. If the jury believe that the warrant, or paper, which the defendant, Duncan, had for the arrest of Kilbourn, (if they find he had any in fact) on the night of the 2d of January, 1832, when the house occupied by the plaintiff was broken, &c., as stated in the evidence by the defendants, was the same warrant, or paper, which had been issued by Walter Worthington, upon the complaint of Mark Grafton, made on or about the 23d December, 1831, and if they believe that the tenor or substance of said complaint, as reduced to writing by said Worthington, upon said warrant, or upon the paper containing, or prefixed to said warrant, was as stated in E. G. Kilbourn's evidence, that then the said warrant was not a legal warrant, to authorize the said Duncan, or any other officer or person to arrest the said Kilbourn, and therefore it is no justification of any of the defendants, of the acts complained of in the declaration in this cause, or given in evidence to the jury.

4th. That if the jury should believe, that [**15]  on the night of the 2d January, 1832, when the house occupied by the plaintiff, was broken and entered by the defendants as stated in the evidence, the defendant Duncan, had a legal warrant for the arrest of Kilbourn, for an alleged breach of the peace, yet if the jury find from the evidence, that said Kilbourn was not in fact, in the said house at the time when it was broken, &c., on that night, then the defendants were not, and are not justified by virtue of said warrant, in breaking or entering the house, or in committing any of the acts complained of in the declaration in this cause.

5th. That although the defendant Duncan, had a legal warrant for arresting Kilbourn, for an alleged breach of the peace, at the time when defendants broke and entered the house occupied by plaintiff, as stated in the evidence, yet that such warrant does not justify the defendants, if the jury believe that they broke and entered the house at a late and unreasonable hour of the night, and without having first made known their business to the occupants within the house, and demanded entrance for the purpose of serving or executing said warrant.

6th. That although said defendant Duncan, had a [**16]  legal warrant for arresting Kilbourn, for an alleged breach of the peace, at the time when the defendants broke and entered the house occupied by the plaintiff, as stated in the evidence, yet that such warrant does not justify the defendants, if the jury believe that they broke palings around the house, or broke the windows of the room in which Mrs. Hall, the plaintiff slept, or threatened before they entered, that they would murder all the persons in the house when they should get into it, or used profane or abusive language to her after they, or some of them, had broken and entered the house, or took from her by force the key of the chamber of said house, or locked the door of said chamber, or locked up her clothing or other goods, and carried off, lost, or kept the key after having locked up the said chamber, or threatened to break the house, and commit the like acts again, if she, the plaintiff, locked or fastened the outer doors of the house after the defendants should have gone out of it, because such acts were unnecessary to the lawful execution of such warrant, even if Kilbourn had been in the house, and because such acts were an abuse of the authority granted by such warrant,  [**17]  and if committed by defendants, they were trespassers, notwithstanding such warrant might have been in all respects, regular, legal, and valid.

7th. That the deed of trust from William Hall Spicer to Mark Grafton, offered in evidence, conferred no right upon Grafton, or any other person acting under his authority, forcibly to enter the dwelling house and premises mentioned in said deed, and to dispossess the plaintiff of the possession of any part of the trust property named in said deed, and that if the jury shall believe that the plaintiff was in the possession of the trust property, either by the agreement of the trustee, or by his permission, for the purpose of cultivating the farm, and of obtaining support for herself and family, from the proceeds and use thereof, that then such possession was lawful, and neither Grafton himself, nor any one acting under his authority, derive any right under said deed to interrupt the same.

8th. If the jury believe from the evidence, that the plaintiff was put in possession of the trust property by Grafton, and continued therein by his approbation, from year to year, that then she occupied the premises, from year to year, and it was [**18]  not competent for said Grafton to terminate her possession, without six months previous notice to remove.

9th. That if the jury from the evidence believe, that Thomas L. Hall did enter into said premises in possession of the plaintiff, by virtue of the power of attorney from Mark Grafton, offered in evidence, while the plaintiff was in possession of the same, yet if they also believe from the evidence, that the said Hall left the premises, and during his absence the plaintiff also went away for the transaction of her business, with the intention of returning, leaving all her goods, furniture, servants and other property in the premises, and that she did return on the next day, and uninterruptedly enter into possession thereof, and that she continued, and was in possession at the time the trespass complained of was committed, that such absence was not an abandonment in law of her possession or right of possession, so as to preclude her from maintaining this action against the defendants.

10th. The deed of trust from William Hall Spicer to Mark Grafton, being the only evidence now offered to the jury, which confers any right upon the said Grafton, in relation to the trust property,  [**19]  mentioned in said deed, that the testimony of said Grafton is wholly inadmissible to prove any right in himself, or his agents, to interfere with the use and possession of said property, contrary to the terms and conditions of said deed.

11th. That if the jury believe from the evidence, that the warrant issued by Walter Worthington, against E. G. Kilbourn, upon the complaint of Mark Grafton, was served upon Kilbourn by the constable Sharer, and was returned by Sharer to the justice, together with the body of Kilbourn, and that the said justice took the recognizance of said Kilbourn, to appear before him at a subsequent day, to enter into security to keep the peace upon said complaint, that then such warrant was functus officio and could not again be re-issued to another officer, to arrest the defendant, but the remedy to bring him again before the magistrate, on his failure to appear at such subsequent day, is upon his recognizance.

12th. Walter Worthington, a witness on the part of the defendants, while under examination, having testified that the original warrant, and the complaint on oath of Mark Grafton, on which said warrant was issued by said Worthington, as a justice [**20]  of the peace, in the name of the State of Maryland, against E. G. Kilbourn, that he should give a recognizance to keep the peace, was last in his possession, and was lost. The defendants, by their counsel, then offered to prove the contents of said warrant and complaint, by the oral testimony of said Worthington; to which testimony the plaintiff objected as incompetent in law for the purpose; which objection the court overruled, and admitted the evidence of said Worthington. All which prayers and instructions were refused by the court, (ARCHER, Ch. J.)

But the court granted the plaintiff's seventh prayer, with the following modification, to wit: "Unless the jury should believe that by the agreement with Mrs. Hall, Grafton gave her liberty to occupy the house and property at his will; but if the jury should believe that subsequently an agreement was made, such as is proven by Kilbourn, then the said Hall or Grafton had no right to enter upon or take possession of the premises."

And the court granted the plaintiff's eighth prayer, with the following modification and addition: "Which prayer was granted by the court with this explanation to the jury, that if they believe the [**21]  testimony of Kilbourn, then there existed such a relation of landlord and tenant, as prevented Grafton, or any one acting under his authority, from terminating her possession without legal notice. But if the jury believe that Mrs. Hall made no other agreement, in relation to the occupation of the premises, than that which Grafton swears to, then he could terminate all the possessory right of Mrs. Hall by an entry, with the view to occupy the premises without notice, and further declared to the jury, that there was no other evidence of any agreement with Grafton for the occupation of the premises, than that which is sworn to by Grafton and Kilbourn.

And the court granted the plaintiff's ninth prayer, with the following modifications and additions: "Which instruction the court gave to the jury, but further instructed the jury, that although her leaving the premises, under the circumstances in this prayer mentioned, if they should be found by the jury, would be no abandonment in law, of any possessory right she may have had in the property, yet if the jury believe that Thomas L. Hall, previous to the time of her departure, had taken possession of the property under the power from [**22]  Mark Grafton, and had not abandoned the possession, if it should have been thus acquired, then all her possessory rights had terminated, as regards the defendant Thomas L. Hall, and all who subsequently entered by his approbation or consent, if the jury should believe that the plaintiff occupied the premises at the time of such supposed entry, under no other agreement than that proved by Mark Grafton."

And the court gave to the jury the following instructions and directions: 1st. If the jury believe that the defendant Hall, entered into possession of the premises, upon which the trespass is alleged to have been committed, by the authority of Mark Grafton, the trustee under the deed from William Hall Spicer to him, and if the jury should believe from the evidence, that the plaintiff by agreement with Grafton, occupied the house and premises at the will of Mark Grafton, then the plaintiff is not entitled to recover against the said Hall.

2d. But if the jury should believe that the plaintiff, by agreement with Mark Grafton, was allowed to occupy and possess the premises, according to the evidence of Kilbourn, then neither Grafton nor Hall, acting under him, could have any right [**23]  to enter into possession of the premises while the plaintiff occupied the same under such agreement; and if the jury should find such entry, then the same would on his part, be a trespass, for which he would be liable in damages to the plaintiff.

3d. If the jury should believe that a warrant was issued to arrest Kilbourn, that he might give surety to keep the peace, although the complaint as spread on the face of the warrant is defective, yet if the jury believe that an oath was made by Grafton, upon which it was grounded, that he was fearful of damage to his person, and should also find, that Duncan, one of the defendants, acted as constable to serve said warrant, and that the other defendants were summoned by him to assist in the service of the warrant, and that the acts complained of were only such as were peaceful and necessary in their efforts to execute it, and were unaccompanied with violence, either to the person or property of the plaintiff, then the said last mentioned defendants cannot be found guilty of a trespass, although the said Kilbourn was not in the house of the plaintiff, or was not found by the said defendants at the time of said trespass. But if the jury [**24]  should believe, that the last named defendants having to execute the said warrant, were guilty of violence either to the person or property of the plaintiff, in their efforts to serve the warrant, or that they broke open the doors of the plaintiff's house, and that she, and not Thomas L. Hall, was in possession thereof, without first demanding an entrance for the purpose called for by the warrant, or unless the plaintiff knew the purpose for which they came, to wit, to serve the warrant, then the said defendants are trespassers, and liable to the plaintiff in damages.

4. If the jury should believe that violence was used in the service of said warrant, or that the defendants entered without demand into the house where the plaintiff was, and that the plaintiff did not know the purpose for which they came, to wit, for serving the warrant on Kilbourn, still, whether the plaintiff can recover damages in this case, must depend upon the fact, whether Mrs. Hall had possession; for if Thomas L. Hall had possession, and the other defendants entered with his approbation, they cannot be guilty of a trespass.

To these opinions and instructions, with the modifications and additions of [**25]  the court, to the plaintiff's 7th, 8th and 9th prayers, the plaintiff excepted, and the verdict and judgment being for the defendants, the plaintiff brought the record upon appeal before this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

However it may be proper as a general rule, that the court shall adopt the language of a motion for instruction as preferred by counsel, yet if this court can perceive that full and substantial justice has been done to the party, by declaring the law accurately, and in terms explicit and intelligible to the jury, upon the points raised by counsel, it is no ground for reversing the opinion, that such instruction were not given in the words of the motion or prayer.

S conveyed to G several tracts of land, and personal property, to be held by G in "trust for the use of S during his life; and after his death, in trust for his daughter E and her four children, share and share alike as tenants in common." Upon the death of S, the trustee went into full possession of the whole property, and soon after requested E to take possession of the farm, agreeing with her at the time, that she and her children, should eat and wear, each, her and his, fifth part of the proceeds of the property under the deed of trust; reserving to himself, G, the right at all times to manage and control all the trust property by himself and agents. Under these circumstances E with her children went upon a farm, part of the trust property:--HELD, that the right of management reserved to G, was to be exercised during E's possession; that it did not authorize him to dispossess her at pleasure, nor depute others to do it; but was a mere right of supervision and general direction as to the course of cultivation and general conduct of the property; and the legal effect of this agreement was not to create a tenancy at will, but a tenancy from year to year on that part of the premises only, which was secured to the children by the deed, leaving E to the full enjoyment of her absolute right of property in her fifth part of the estate.

The inclination of the courts has long been against that construction of a demise, which will create an estate at will.

It is the province of the court to determine the legal effect of contracts.

Where a warrant is in due form, and commands a constable to arrest a party to give security for the peace upon complaint made, the officer who executes it, has no reason to inquire into the particulars of the complaint, or whether any were made at all. It is his duty to execute it, and in doing so legally, his justification cannot depend upon the question of whether the oath of the party who applied for it was sufficient to authorize its issue.

A constable, in the execution of a warrant to arrest a party, breaks another's house at his peril. If it shall prove, that the party sought for is not in the house, the officer is a trespasser. Even where the right of possession of the occupant in fact is controverted, the officer in such case derives no justification from it.

Before an officer, with a warrant to arrest a party, breaks the door of another person in executing his authority, he should for his justification demand entrance, and the previous knowledge of the tenant of the purpose of the officer in coming to the premises, does not dispense with this demand.

The law anxiously regards the security of a ministerial officer in serving process directed to him by a competent jurisdiction: And it may happen that a magistrate issuing a warrant, may act illegally, and subject himself to an action or prosecution, while the constable will be justified.

So where a magistrate issues a warrant to one officer, who executes and returns it, and produces the body of the party who is recognized or discharged, and before the return day the magistrate directs the same warrant to another officer who without knowledge of the previous arrest, again arrests the party, he would be justified, although the magistrate's conduct would be illegal.

Where a warrant is traced to the hands of a magistrate, who swears to its loss, parol evidence of its contents may be given as in other cases.  

COUNSEL:
Hinkley, for the appellant.

1. The plaintiff had a sufficient possessory title to support the action. She was at the least a tenant from year to year, and not a tenant at will, and was entitled to six months notice to quit. 1 Cruise Dig. 191. 3 Durnf. and East. 4, 13. 8 Term. 3, 6. 3 Burr, 1609. 1 Johns. 322. But if a mere tenant at will, still she was entitled to a notice of six months, or at all events, to a reasonable notice. 1 Cruise, 191, sec. 19. 3 Wilson, 25. 1 Pick. Rep. 43, 49. 13 East. 210. 9 Johns. Rep. 209. 1 Ib. 322. 2 Ib. 75.

2. The warrant mentioned in the appellant's third prayer, was not sufficient to authorise the arrest of Kilbourn, and is no justification for the acts complained of. The oath upon which the warrant was founded, should have appeared upon its face, and could be proved in no other way. 2 Strange, 1002. 1 Bac. Abr. title (Constable) 690. 2 Stark. Ev. 817. 13 Massa. Rep. 286, 289. 4 Burns' Justice,  [**26]  225, 227. 2 Hawkins, 5, 12 and 111.

3. But if the warrant was sufficient to justify the conduct of the defendants, in case Kilbourn had been in the house, it could not justify them in his absence; and the risk of his not being there was assumed by them. 1 Hale, 117.

4. The previous service of the same warrant by another officer, rendered it functus officio, and for that reason it could furnish no justification to the defendants, though the officer originally charged with its service, might legally have committed the acts complained of. 2 Hale, 120. 1 Burns, 102.

5. The power of attorney from Grafton to the defendants did not authorise them to proceed in the manner charged against them; nor was Grafton a competent witness to prove a right in himself or his agents, to interfere with the plaintiff's possession.

Johnson, for the appellees.

A tenancy at will, or at sufferance, may be created by the express terms of the parties, and according to the evidence of Grafton, such was the character of the tenancy of the plaintiff. 1 Chitty Genl. Pr. 256. 4 Taunt. 128. 5 Barn. and Ald. 604. And the instruction of the court to the jury was, that they should so find, if they [**27]  believed Grafton.

The reservation of rent does not convert a tenancy at will, into a more permanent estate, if the parties by express stipulation so contract, and in such case no notice to quit is necessary. 1 Pick. 48. 2 Wheat. Selw. 531.

When Grafton reserved the right to manage and control the estate, he necessarily reserved the right to take possession of it, without which, the authority to control and manage could not be exerted. The authority conferred by him upon Hall, the defendant, was a legitimate exercise of this power. It was an authority to manage the estate for Grafton, and not to turn Mrs. Hall out of possession, and his right to do this latter act, therefore, is not the question to be decided. To have abandoned the estate wholly to the management of the plaintiff would have been a breach of trust.

2. If the warrant for the apprehension of Kilbourn was a valid one, it furnishes a full justification for the appellees, all of whom were summoned by the officer charged with the execution of it. Whether it was valid or not, depends upon whether the magistrate who issued it had jurisdiction over the subject. If he had, the form of the proceeding is altogether [**28]  immaterial. Grafton's affidavit of personal danger gave the jurisdiction, and authorised the magistrate to issue the warrant; and there is no authority for saying that it should disclose upon its face the proof upon which it issued. 1 Chitty Cr. L. 27, 41. Bac. Abr. Trespass, D. 3.

The legal presumption is, that the warrant was in conformity with the evidence before the magistrate. If trespass can be maintained against the officer for serving this warrant, it may be likewise, against the magistrate who issued it, and Grafton who procured it to be issued.

It has been said that the warrant was functus officio after the return day, and the previous service of it by another officer. If, however, it was good upon its face, and the officer who had it, and those who aided him, were not aware of the misconduct, or mistake of the justice who issued it, they must surely be protected, and such is the instruction of the court. If a different rule prevailed, and ministerial officers charged with the service of process, and their assistants, were responsible for the mistakes of judges and justices, no man would be found willing to execute the laws.

The question of violence, was for [**29]  the jury, and was properly submitted by the court to them. If the defendants had reason to believe that Kilbourn was in the house, they were justified in forcing their way in.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J., and STEPHEN and CHAMBERS, J's.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*404]  CHAMBERS, J., delivered the opinion of the court.
At the trial of this case the plaintiff's counsel made twelve points, upon which the court was asked to instruct the jury. They were all rejected.
The court then instructed the jury upon the seventh, eighth and ninth points, modifying the prayer of the plaintiff as is particularly stated in the exception, and then further instructed the jury in their own terms on several of the questions arising in the cause.
However, it may be proper as a general rule, that the court shall adopt the language of a motion for instruction as preferred by counsel, yet if this court can perceive that full and substantial justice has been done to the party, by declaring the law accurately, and in terms explicit and intelligible to the jury, upon the points raised by the counsel, it is no ground for reversing the opinion that such instructions were not given in [**30]  the words of the motion or prayer. It is sufficient that other language was employed by the court less subject to misconception, or that the prayer was gratified with such accompanying explanations as were necessary for a full and fair comprehension of the law.
The exception professes to set out all the testimony in the cause, and the instructions were asked "upon the whole evidence."
The first instruction moved for, it has been said in argument, was intended to raise the question whether the agreement as proved by Grafton, between the plaintiff and himself, constituted the plaintiff a tenant at will, or tenant from 

 [*405]  year to year, of the house and farm on which the trespass is alleged to have been committed. We do not perceive that the prayer did raise this question. It calls upon the court to say to the jury, that if the plaintiff was in actual possession of the house and premises, then such possession was sufficient to entitle the plaintiff to maintain her action. It did not assume that any of the evidence relating to a trespass was to be believed, that any act of violence against that possession, or that any specific wrong, was perpetrated. The words "upon which [**31]  the acts were committed by defendants, as given in evidence," are used, but they are used as descriptive of the house and premises, and are the only words used to identify the locus in quo. The jury might believe the plaintiff to have been in possession, and yet not believe the witnesses who gave evidence of the trespass. It was therefore in effect to ask the court to say that the trespass was sufficiently proved, if the jury believed the plaintiff to have been in possession of the premises, which the court properly refused to do.
The court, however, after rejecting the prayer, do instruct the jury, that if they believe that the plaintiff made no other agreement, in relation to the occupation of the premises, than that which Grafton swears to, then he could terminate all the possessory right of the plaintiff by an entry with the view to occupy the premises without notice, and also, "that if the defendant, Hall, entered into possession of the premises by the authority of Grafton, and that the plaintiff, by agreement with Grafton occupied the house and premises at the will of Grafton, then the plaintiff is not entitled to recover against Hall"--And again [**32]  they say, "if Grafton made no other agreement than that which he proves, and the defendant, Hall, had authority from Grafton, his first entry is no trespass; and having thus taken possession, his second entry is justified unless he abandoned the possession between the time of the first and second entry." They proceed to say in their subsequent instructions, in regard to the defence taken by those defendants 

 [*406]  who justified under Hall's authority, that it must "depend upon the fact whether Hall has made out his justification that he was in possession under authority from Grafton." These opinions are grounded we think in a misconception of the nature of the tenancy of the plaintiff, and of the effect of the agreement between Grafton and the plaintiff, as sworn to by Grafton.
The inclination of the courts has long been against that construction of a demise which will create an estate at will. The interests of agriculture, and the importance to lessees of land, of certainty and security in their occupation, are opposed to such estates, and they scarcely, if at all, exist in fact. We do not think the circumstances of this case, or the intention [**33]  of the parties justify such an interpretation of the relations existing between them.
Grafton took possession of the premises, as trustee under the deed. He put the plaintiff in possession, entitled to the fee simple interest in one undivided fifth part, of which she could dispose at her will and pleasure. There are no rights of control or management reserved by the deed to Grafton, no authority to remove her from the possession of the portion secured to her after the death of her father.
The consideration of the deed is the natural love, and affection which the grantor had for his daughter, the plaintiff, and her children. The object avowed in the deed is to make provision for them after his decease, and the means adopted is to convey to Grafton, in trust, to permit the grantor during his life, to take the rents and profits, and after his decease, in trust for the plaintiff and her four children, by name, and their heirs, as tenants in common, without an intimation that Grafton is to interpose the slightest obstacle to the complete enjoyment of the property, or the possession of it by them. Assuming then that the case is not within the statute of Henry VIII. [**34]  and the use not executed--upon which subject we do not intend to decide--there is nothing to prevent the full and entire enjoyment of one-fifth part of the premises by the plaintiff, under the 

 [*407]  deed, unless she has contracted to part with her interest and property in it.
To ascertain whether she did so contract with Grafton, it may be proper to consider the circumstances under which his agreement with the plaintiff was made. He was the guardian of the children, and their trustee. By the terms of the agreement, she was to clothe and feed the children; she was to lease the other farm on which she was residing, and to occupy these premises "with the object and intention expressed at the time, that she and the children should eat, and wear each his, and her fifth part of the proceeds of the property." She took possession of the premises in April or May, 1829, and continued to reside upon, and cultivate it to the time of the alleged trespass, and nothing is stated to shew that she did not feed and clothe the children. The right reserved by Grafton was "at all times to manage and control the trust property by himself and agents."
We think it clear this right of management [**35]  and control was to be exercised during the plaintiff's possession, and that it was not a right to dispossess her at pleasure, but a right of supervision and general direction as to the course of cultivation, and general conduct of the property. The obligation to furnish food and clothing for her children, was one of daily expense; many months must elapse from the period when she took possession, before the farm could yield a crop of any kind. Could she have intended to subject herself to be removed at any moment, after pitching a crop, and cultivating it, and before it should be harvested, at any season of the year, at any hour of the day or night. It would be, we think, in direct violation of the intention avowed, as Grafton swears, at the time of the agreement. He acted in reference to some supposed rights vested in him as trustee, to superintend the property, but could not be authorized by any thing in the agreement, to go or send an agent at midnight to break open the doors, destroy the windows, injure the enclosures, and lock up the clothes of the plaintiff, and treat her with rudeness. These are acts 

 [*408]  sworn to have been committed by the defendants, and as it was [**36]  not possible for the court to ascertain whether the jury could, or would not give credit to the witness, who testified to them, they must be regarded as a part of the case in reference to which the court have said the plaintiff cannot recover in the case assumed in their instructions.
It is the province of the court to determine the legal effect of contracts, and we think in this case, the legal effect of the agreement sworn to by Grafton, as made between himself and the plaintiff, taken in connection with the deed of trust, was not to create a tenancy at will, as the court have assumed, as the foundation of the several opinions we have referred to--but a tenancy from year to year, in that part of the premises which was secured to the children by the deed, leaving the plaintiff in the full enjoyment of her absolute right of property in her fifth part.
The second point upon which the plaintiff asked the instruction of the court was, "that the paper purporting to be a power of attorney from Grafton to Hall did not authorize any of the defendants to commit the acts complained of in the declaration, or of which evidence has been given to the jury."
Considering the expressions,  [**37]  "acts complained of in the declaration, or of which evidence has been given," to be understood as referring to the acts of violence and injury to the premises, and the insult to the person of the plaintiff sworn to by the plaintiff's witnesses, we have disposed of this question by what has been already said, from which it follows that the court erred in not giving the instruction.
The third point relates to the warrant issued by the magistrate against Kilbourn.
The prayer is that if the jury believe the tenor or substance of the complaint as reduced to writing upon said warrant, or upon the paper containing or prefixed to said warrant, was as follows, then setting out in haec verba the affidavit on which the warrant issued, that then the warrant was not a legal warrant, and would not justify the defendants. 

 [*409]  This application manifestly and erroneously assumes that the regularity of the complaint, which is the oath of the person at whose instance the warrant issues, must determine the authority of the officer who executes the warrant.
Now if the warrant were in due form, that is, if it commanded the constable to arrest the party, to give security for the peace [**38]  upon complaint made, the officer who executed it had no reason to inquire what were the particulars of the complaint, or whether any were made at all. It was his duty to execute the warrant, because upon its face it disclosed a case of which the magistrate could take cognizance. The warrant is not set out in the evidence, and therefore this court cannot express an opinion upon its sufficiency, but we think the court properly rejected the prayer to declare the warrant illegal, and not sufficient to justify the constable, solely because the complaint was not such as to justify the magistrate in issuing it.
The fourth prayer assumed the legality of the warrant, and asked the court to instruct the jury that it did not authorize the constable and his assistants to break the door of plaintiff's house, if Kilbourn was not then in the house. This instruction we think ought to have been given. The court in their subsequent instructions, make this question to depend upon the nature of the plaintiff's possession.
The defendants justified upon two grounds, one the right of possession, derived under the deed and agreement between Grafton and the plaintiff,--the other, the authority [**39]  to enter upon the premises, and arrest Kilbourn under the warrant. The plaintiff in this prayer appears to have sought from the court an opinion as to the authority of the constable to break the door of the house occupied at the time by the plaintiff as her dwelling, in his pursuit of Kilbourn, against whom the warrant was directed. The constable in execution of a warrant to arrest a party, breaks another's house at his peril. If it shall prove that the party is not in the house, the officer is a trespasser. If Mrs. Hall was 

 [*410]  actually occupying the house at the time with her family, it was to this purpose her castle, and whatever controverted rights of possession there might be in relation to it, the officer derived no justification from that circumstance. We think the court should have so instructed the jury, as not to make the authority of the constable, under the warrant, dependent upon the collateral fact of possession.
The fifth point made by the plaintiff was, that before the defendants could be justified in breaking the door in executing the warrant, the constable should have demanded entrance. We think this instruction should have been given as prayed,  [**40]  and we do not concur in the qualification afterwards given by the court, which excused the demand, if Mrs. Hall knew the purpose for which they came.
The sixth point relates also to the manner of executing the warrant.
Although the prayer does not distinctly assume as a preliminary hypothesis, that the jury should believe the plaintiff to have been in possession, yet as the whole evidence is referred to in the introductory part of the exception, and there does not appear to have been any conflict in the testimony upon that fact, we feel bound to consider it as implied. The court in their instructions upon this subject, have united its consideration with various other matters. It is clear that a legal warrant would not have authorized the officer charged with its execution to commit the acts enumerated in the prayer, and we think the court should distinctly have said so to the jury, and that if Kilbourn was not in the house, the breaking open the door was not justified, although it may have been done with as little mischief or inconvenience as possible to the plaintiff.
The seventh instruction prayed for was that the deed of trust conferred no right on Grafton [**41]  , or any one acting under his authority, to dispossess the plaintiff of the trust property, if the jury believed the plaintiff was in possession either by the agreement of Grafton, or by his permission, &c.

 [*411]  We have before expressed the opinion, that under the circumstances of this case the plaintiff had an absolute interest in one undivided fifth part of the premises, and was tenant from year to year, of the residue, and that Grafton had no authority in person, or by agent, to enter and dispossess the plaintiff at pleasure.
We cannot therefore concur in the modification of this prayer made by the court. It follows in like manner, from what has been said, that the eighth instruction should have been given, as prayed, without the modification.
The ninth instruction moved for by plaintiff relates to the re-entry of Hall the defendant, after a previous entry, which is assumed to have been lawful.
In the view taken by this court, no such legal effect would ensue from the first entry of Hall, the defendant, as to dispossess the plaintiff.
If Hall, the defendant, did take possession in fact adversely to the possession of the plaintiff, and in her [**42]  absence, he was a trespasser; and if the plaintiff afterwards returned to the premises, and finding them unoccupied by Hall, quietly repossessed herself of them, the defendant, Hall, could derive no sanction for a second entry, from the fact of his having previously entered. If the entries were made for the purpose of disturbing the plaintiff's enjoyment of the property, or in a violent manner, or for any other purpose than to discharge the right of supervision reserved by Grafton's contract, it was not in pursuance of any authority given either by the deed or the agreement. We do not concur, therefore, in the modification of the court to the ninth prayer. The tenth point has been abandoned by the appellant's counsel.
The eleventh prayer asked the court to say, that if the jury believed the warrant to have been received and served by Sharer, and returned by the magistrate, and that Kilbourn had been produced before the magistrate who had "taken his recognizance, then the warrant was functus officio, and could not again be re-issued."

 [*412]  The law anxiously regards the security of a ministerial officer in serving process directed to him by [**43]  a competent jurisdiction. It may well happen that a magistrate issuing a warrant may act illegally and subject himself to an action or to a prosecution, while the constable executing the warrant illegally issued, will be justified. The evidence is contradictory, in regard to the return day in the warrant in this case. The magistrate swears there was no day of the month named in it as the return day, but that it was returnable forthwith. If a warrant be issued by a magistrate and delivered to a constable who executes and returns it, and produces the body of the party who is recognized or discharged, and before the return day the magistrate directs the same warrant to another constable, who without knowledge of the previous arrest, again arrests the party, we think he would be justified, although the magistrate's conduct would be illegal. The plaintiff, in stating the case upon which the prayer is founded, does not enumerate the circumstances under which the warrant was re-issued, except only that it had been previously issued, and served by another constable, and that the party had been taken and recognized. These particular facts might exist, and yet other circumstances might also [**44]  exist, which would justify the second officer who executed the warrant, and we think the motion was properly refused. The twelfth instruction was asked upon the ground that parol evidence could not be given of the warrant. It was traced to the hands of the magistrate who proved its loss, and we can discover no ground of distinction between this case, and the every day case of a lost paper, and therefore concur in the opinion which rejected this application.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

10 of 41 DOCUMENTS 

FRANCIS MARSHALL vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 214; 1836 Md. LEXIS 22 

December, 1836, Decided 

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

On the 16th December, 1834, Francis Marshall filed his bill on the equity side of Baltimore county court, praying for an injunction to stay the corporation of the city of Baltimore, its commissioners and officers, from proceeding to execute the act, for opening and increasing the width of German lane, in the city of Baltimore, which in the mode of its proposed execution encroached upon his freehold and improvements on German street. An injunction issued accordingly, and after answers filed, the cause was removed upon suggestion and affidavit to the court of Chancery, where BLAND, chancellor, on the 20th January, 1835, dissolved the injunction, and the complainant prosecuted the present appeal.

At this term, Campbell for the appellees moved to dismiss the appeal.  

DISPOSITION:
APPEAL DISMISSED WITH COSTS.  

HEADNOTES:

Appeals from orders dissolving injunctions not prosecuted under the act of 1832, ch. 197, will not lie.  

COUNSEL:
CAMPBELL for the appellees:

Stated that the order dissolving an injunction was interlocutory merely, and not the subject of an appeal. Snowden, et al vs. Dorsey, et al 6 Har. and John. 114. Roberts, et al vs. Salisbury, et al 3 Gill and John. 434. Dorsey vs. Smith, 2 Har. and Gill. 135. After the dissolution of this injunction, Marshall applied [**2]  to one of the judges of the court for permission to appeal, which was refused him; and without the allicatur no appeal lies. The act of 1832, ch. 197, settles this question. It introduced a new rule. It allows appeals from such orders on terms, which do not exist in this case.

MAYER for the appellant contended:

That this appeal was not within the principle of the cases respecting injunctions cited for the motion to dismiss. That it was within that of Williamson vs. Carnan, 1 Gill and John. 184. The order appealed from was in effect a formal decree. It was like the case of closing up a road. Looking to the consequences of the order, the injury was remediless, and the appeal was a repetition of the case of Thompson vs. McKim, 6 Har. and John. 302, 327. The decisions relied on, were not appeals from practical orders of the chancellor, they looked to no execution, but were the immediate practical effects of the dissolution, affects the appellant's interests, and no future intervention of chancery could give him redress. The counsel has confounded the final character of these orders; they consider they must be final in their form and language, but it is only necessary they should [**3]  be final in their effect and action.

This order is final in its nature, it permits the street to be opened, enlarged, widened, and the property of the appellant to be taken, which brings it within the case of Thompson and McKim, and the acts of the legislature. The distinction between orders which look to execution and those merely speculative, reconciles all the cases. Here the appellant's house was to come down, no compensation could make redress or restore the houses. And what difference is there between an order which commands a street to be opened, and a dissolution of an injunction which permits it to be done under colour of legislative sanction. The answers here admit the bill, and really there is nothing but a question of law upon the construction of the act of assembly. The complainant has nothing to prove, and this appeal must present the precise same question, if now heard, as upon final decree. The cause is not within the act of 1830, ch. 185, nor its provisions. It is introductory of no new law as respects this cause. It looked to certain cases in which appeals were to be stayed, and this is not one of them. The act of 1832, ch. 197, is merely cumulative.

R.  [**4]  JOHNSON, in reply.

There are two grounds for this motion to dismiss.

1. Independent of the act of 1830, the order appealed from was not final.

2. If a final order the appeal is taken away by the act of 1830.

The counsel has misconceived the grounds of the opinion of the court in the two cases cited, in supposing that an appeal lies in every case, if the court supposes irreparable injury is about to result.

1. He is mistaken as to the meaning of irreparable injury.

2. A mere irreparable injury is not the foundation of an appeal unless caused by a final decree.

This court refuses an appeal from the court of Chancery, when the decree rests in the breast of the Chancellor, and is liable to be changed at any time. This doctrine is affirmed by the case of Smith and Dorsey. What irreparable injury is there here? In Thompson and McKim, that sort of injury means without any redress at all upon the principles assumed by the decree. What is the irreparable injury here? Damages have been decided upon by a jury, and over them you have no jurisdiction. The only irreparable injury here is the assertion of the legal right to open the street, and if this has been [**5]  erroneously assumed, upon the ultimate decree damages may be recovered. In this case, if irreparable injury be what it is argued to be, the refusal to grant the injunction would give a right of appeal. The refusal to grant, and the granting might be attended with like consequences.

The irreparable injury must flow from an order finally settling some right of the party appellant, and this is the meaning of the court in the case of Thompson vs. McKim. The general rule is that no appeal lies from an interlocutory order, and the object of the act of 1830, was for the very purpose of preventing appeals in such cases as Thompson and McKim, and Williamson vs. Carnan. They were to be stayed until final decision. The act of 1830, is in terms a legislative prohibition on this appeal, and the act of 1832, concedes that no appeal would lie, and was passed in some measure to qualify the general rule embraced in the act of 1830, and authorizes an appeal when allowed by one of the judges. In either view this motion ought to prevail.  

JUDGES:
The motion was argued before BUCHANAN, Ch. J. and STEPHEN, ARCHER, DORSEY and CHAMBERS, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*217]  DORSEY, Judge, delivered the opinion [**6]  of the court.
The present appeal has not been prosecuted under the act of 1832, ch. 197. The right of the appellant to sustain it stands wholly unsupported by any legislative enactment upon the subject. It is a matter of surprise, therefore, that such an appeal should have been brought before this tribunal, since 

 [*218]  its determination in the case of Dorsey vs. Smith, 2 H. & G. 135, in which the court say, they take this occasion to declare, that they are unanimously of opinion that such appeals will not lie, and that they will consider them an abuse of the right to appeal, and will censure them accordingly.
APPEAL DISMISSED WITH COSTS.  

11 of 41 DOCUMENTS 

THE UNION BANK OF TENNESSEE, vs. THOMAS ELLICOTT, JOHN B. MORRIS AND R. W. GILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 363; 1834 Md. LEXIS 33 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the equity side of Baltimore county court, under the act of 1832, chap. 197.

The bill in this cause was filed on the 4th June, 1834, by the President and Directors of the Union Bank of Tennessee against Thomas Ellicott, John B. Morris and Richard W. Gill, as trustees of the Bank of Maryland. It alleged on behalf of the complainants, and all other creditors of the Bank of Maryland who should come in and contribute to the expenses of the suit, that in the prosecution of the complainants' business as bankers, the Bank of Maryland became indebted to them in a large sum of money, to wit, $ 350,000; that on the 23d day of March, 1834, the President and Directors of the Bank of Maryland determined to suspend further banking operations and to close their banking house, and on the same day executed a deed of assignment of all their estate, property, rights and credits to Thomas Ellicott in trust, to collect and realize the said property, estate, rights and credits, and to divide the same equally and rateably among all the creditors of the said Bank of Maryland, according to the deed of trust filed with said bill; that afterwards John B. Morris and Richard W. Gill having been [**2]  associated with the said Ellicott in the said trust, another deed was executed on the 5th day of April, 1834, which was also filed with said bill; that complainants had no knowledge of said assignments until some time after they were made, nor did they consent or participate in any of the arrangements leading thereto; that the agent of complainant having arrived in the city of Baltimore some time in the month of April, 1834, found the said Ellicott, Morris and Gill acting as trustees under the said last deed of assignment, and receiving and collecting the out-standing debts due to the Bank of Maryland in the notes and certificates of deposit of said bank, which were then and still continue to be greatly depreciated in value, and selling in the market for not more than forty to fifty cents in the dollar; that said agent having in vain remonstrated against this course of procedure as prejudicial to the interests of creditors, had recourse to the opinion of counsel which was against the measure; which opinion said agent communicated to said trustees, and urged them to desist from receiving any more of the notes and certificates of deposits of the Bank of Maryland in payment of debts due [**3]  to that institution; but the said trustees nevertheless continued and still continue to do so, to the injury of the creditors, and to the exclusive benefit of the debtors of the said bank; that the course thus adopted and persisted in, is in direct violation of the spirit and letter of the provisions of the trust deed under which they act, and is not justified by the law of the land, and produces inequality among the creditors; that there will be a large deficiency in the assets of the bank.--Prayer for an injunction prohibiting the said trustees from receiving the notes and certificates of the said bank in payment of debts, and for other relief generally.

With this deed were filed the following exhibits.

1. A deed from the President and Directors of the Bank of Maryland to Thomas Ellicott, dated the 23d March, 1834. This deed recited as follows: "That whereas the parties of the first part are indebted in a large amount of money on account of deposits received by them--notes issued by them, and on various other accounts which they are now unable to meet--and whereas they have belonging to them a large amount of assets consisting of various species of property, real, personal [**4]  and mixed, situate in said city and elsewhere, and which, it is believed, if properly and economically administered will be sufficient to discharge said debts, and whereas it is the opinion of said President and Directors of the Bank of Maryland, that it is better for all the creditors of said bank, that all the assets should be placed in the hands of a private trustee, to be appropriated under the provisions of this deed to the payment of said debts," and then after granting and assigning "all the estate, property, funds, rights and credits belonging to the said bank, or in which they are in any way interested, and wherever the same may be situated, to the said Thomas Ellicott, his heirs and assigns for ever," declared the following trusts--to wit: "In trust that he the said Thomas Ellicott, his heirs and assigns, shall in such manner as he shall deem best for the creditors of the said bank, and acting in that particular, as well as in the entire execution of this trust, under the advice and direction of Stevenson Archer and Thomas B. Dorsey, or in case they decline to act, under the advice and direction of such other person or persons as they may name for the purpose, proceed to [**5]  collect and realize the said property, estate, rights and credits, and from time to time as the same are realized, to divide the same equally and rateably among all the creditors of the said Bank of Maryland.--First deducting all necessary expenses of the trust, and such commissions as would be allowed to such trustee under the rules and practice of a court of chancery of this State, and in further trust after discharging all the debts aforesaid of said Bank of Maryland, the said trustee, his heirs and assigns will, subject to the deduction aforesaid, pay over and divide the balance which may be in his hands, among the stockholders of said bank according to their several interests in said bank."

2. A deed between the same parties of the 23d March, 1834, of the same character and import, designed to confirm the first, which was in fact executed on Sunday.

These deeds were respectively executed by the President of the Bank of Maryland, under the seal of that institution.

3. The third deed exhibited with the bill of complaint, was from the President and Directors of the Bank of Maryland and Thomas Ellicott, to Thomas Ellicott, John B. Morris and Richard W. Gill, and was [**6]  dated the 5th April, 1834. It recited a reference to the two previous deeds, and that "Thomas Ellicott accepted the trusts so as aforesaid confided to him by said deeds respectively, and entered upon the execution of the same--And whereas, since the said Thomas Ellicott accepted and commenced the execution of said trusts, it has been deemed proper and advisable by the said President and Directors of the Bank of Maryland, the said Thomas Ellicott, and by various creditors of the said bank, that John B. Morris and Richard W. Gill of the city of Baltimore, should be associated as co-trustees with the said Thomas Ellicott for the accomplishment of the aforesaid deeds, and whereas the said Morris and Gill have agreed to be associated and act with the said Thomas Ellicott as co-trustees as aforesaid, and whereas for the effectuation of this object John V. L. McMahon and Reverdy Johnson, advisers and counsellors as to the execution of said trusts, appointed as such by the Honorable Stevenson Archer and Thomas Beale Dorsey, by and under the authority of the aforesaid deeds of trust, (they, the said Archer and Dorsey declining to act as counsellors and advisers of the said trust,) have advised [**7]  the execution of these presents as is signified by their endorsement thereon," and then the said deed proceeded to assign the estate granted to the said Thomas Ellicott, to Thomas Ellicott, John B. Morris and Richard W. Gill, and their heirs, and the survivor or survivors of them, and their heirs for the uses and trusts specified in the deed of the 23d March, 1834. This deed like the former was executed by the President of the Bank of Maryland under the corporate seal of that institution, and signed by the three trustees. The endorsement of the advisers of the trust was as follows:

"We do hereby certify that the foregoing deed of trust was prepared and executed under our order and direction as is recited therein. Witness our hands and seals the 5th day of April, 1834. Reverdy Johnson, (seal.) John V. L. McMahon, (seal.)"

All these deeds were duly acknowledged and recorded among the land records of Baltimore county court.

Upon this bill the County court, (PURVIANCE, J.,) refused the injunction.

Thereupon both parties having appeared in court by their respective solicitors, filed the following agreement, viz: "The following admissions are made in this case to be used [**8]  in argument by counsel on either side before the court of Appeals, or any judge thereof, to whom the application for an injunction shall be made by the complainants under the act of 1832, ch. 197.

1. It is admitted that at a special meeting of the board of directors of the Bank of Maryland, held in the city of Baltimore on the 23d March, 1834, the following resolutions were adopted by said board, preparatory to, and before the execution of the deed of trust, bearing date on that day, from the President and Directors of said bank, to Thomas Ellicott, which deed is referred to and exhibited with complainants' bill of complaint.

At a special meeting of the directors of the Bank of Maryland, held on the 23d March, 1834.

1. Resolved, that all debtors of this institution shall have the privilege to pay their debts to the same in notes of this bank, or in certificates of deposit, or in open accounts due by the bank.

2. Resolved, that a deed of trust be at once executed of all the property and funds of the Bank of Maryland to Thomas Ellicott in trust for the payment equally of all the debts and liabilities of the bank in the first place. And secondly for the distribution [**9]  of any balance that may remain among the stockholders of the bank, according to their interests in said stock.

3. Resolved, that the cashier forthwith deliver into the Union Bank of Maryland, all notes and bills discounted at this institution, which when paid shall be carried to the credit of the trustee appointed to settle up the concerns of the bank.

4. Resolved, that all notes and bills deposited with this bank for collection, be also delivered into the Union Bank of Maryland, which, when collected, shall be passed to the credit of the persons or institutions by whom the same were so deposited.

5. Resolved, that the banking house be not hereafter opened for the transaction of any business, and that the cashier take into safe keeping all the property of the institution.

6. Resolved, that the cashier of the Bank of Maryland make the exchanges of the morning with the other banks as usual. Present:--Evan Poultney, president, Evan T. Ellicott, Nathaniel Williams, John Glenn, Charles E. Wethered, B. C. Ross, Reverdy Johnson.

The publication of a notice addressed to the public, siged by the cashier of the bank, upon the 24th March, 1834, advising the suspension [**10]  of the business of the bank, and the rights of debtors as to the mode of paying debts was also admitted; and that Thomas Ellicott accepted the trust with knowledge of the resolutions of the 23d March, 1834, and that on the 5th April, 1834, prior to the execution of the deed of that date, similar resolutions to those of the 23d March, 1834, were adopted by the directors of the bank, and that Morris and Gill were associated as trustees with Ellicott, with knowledge thereof before the deed to them was executed, also with knowledge of the resolutions of the 23d March, and the publication of the 24th March.

It was also admitted, that the president of said bank was not present at the special meeting of the directors thereof, held on the 23rd March, when the first mentioned resolutions were adopted, being then confined to his own house by reason of sickness; but that he afterwards, but before said deed was executed, assented to said resolutions so adopted, and signed his name to the proceedings adopting said resolutions.

It was also admitted that the complainants had no knowledge of the resolutions of the 23d March, and 5th April, until about the middle of the month of April; and [**11]  that complainants were duly incorporated by the State of Tennessee.

It was also admitted that, on the 2d April, 1834, Stevenson Archer and Thomas B. Dorsey, the advisers and directors appointed by and under the deed of trust of the 23d March, by the authority of that deed appointed John V. L. McMahon and Reverdy Johnson, advisers and directors of said trust; and that on the 8th April, 1834, the trustees aforesaid gave public notice to the debtors and creditors of the bank, of their obligation to receive the liabilities of the bank in payment of debts; and their intention to fulfil it.

The complainants being refused the injunction sought by the bill, the record was carried to the judges of the court of Appeals, under the act of 1832, ch. 97.

It was agreed, that if the judges of the court of Appeals, to whom the said application for an injunction may be made, or a majority of them shall be of opinion that the trustees were, and are authorized to receive such notes and certificates of deposit as were actually and bona fide the property of the person or persons offering them in payment to said trustees, at the time of the execution of the deed of the 23d March, but that [**12]  said trustees were and are not authorized to receive in payment any note or certificate of deposit obtained by any debtor or debtors, after the date of the said deed of trust, then the complainant shall be at liberty to amend the prayer of the bill, in conformity with such opinion.  

HEADNOTES:

The banking corporations of the State have the right to provide for the payment of their debts, by a transfer of all their property in trust.

The Bank of Maryland being in failing circumstances, executed an assignment of all her property to a trustee, his heirs and assigns, for the purpose of collecting claims, and paying debts. The deed contained a clause declaring that the trustee, "his heirs and assigns, shall in such manner as he shall deem best for the creditors of the said Bank, and acting in that particular as well as in the entire execution of this trust, under the advice of A. and D., or under the advice and direction of such other person or persons as they may name for the purpose, proceed to collect," &c. The trustee accepted the trust, and entered upon its execution; shortly after this, at the request of various creditors of the Bank, as also of its President and Directors, and under the advice and sanction of the persons substituted in the stead of A and D, as advisors of said trust, in virtue of the clause aforesaid, the said trustee agreed to associate with himself two other trustees for the purpose of the better execution of said trusts, and thereupon the said President and Directors and trustee, executed another deed to the said first trustee, and the two other trustees, agreed upon as aforesaid--HELD, that the last deed was valid and effectual for the purposes therein expressed.

Under the act of 1818, ch. 177, and 1824, ch. 199, the debtors of the banking corporations of the State, have the right to pay their debts in the notes, and certificates of deposit, issued by such corporations, without reference to the period of time when such notes and certificates were acquired by such debtors.

The assignees and trustees of an insolvent bank, authorized to collect its debts and pay its creditors, are bound under those laws to receive payment in such notes and certificates. 

COUNSEL:
G. W. Gibbs, of Nashville, and Meredith, for the appellants.

McMahon and Johnson, for the trustees of the Bank of Maryland.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*371]  BUCHANAN, Ch. J., delivered the opinion of the court.
This case being presented to us as judges of the court of Appeals, under the provisions of the Act of Assembly of 1832, ch. 197, we have fully considered the attested copy of the bill and proceedings in the same, and of the order of the judge of Baltimore county court refusing the injunction prayed for by the complainants, and we have also fully considered the arguments of the solicitors of the respective parties, and are of opinion that the complainants are not entitled to the injunction prayed for, and consequently that there is no error in the order aforesaid of the judge aforesaid, refusing to award [**13]  such injunction, and we therefore refuse to direct such injunction to be awarded.
It is our opinion, that the President and Directors of the Bank of Maryland, were authorized, and had the right to provide for the payment of the debts of the institution, by a transfer in trust of all the property of the bank; and that the deed of trust exhibited to us, of the 5th of April, 1834, to Thomas Ellicott, John B. Morris and Richard W. Gill, is a good, valid and effectual deed for the purposes therein expressed, notwithstanding the prior deeds of the 23d March, 1834, and the 26th March, 1834.
It is also our opinion, that antecedent to the execution of either of those deeds, it was the right and privilege of the debtors respectively of the Bank of Maryland, secured to them by the provisions of the acts of 1818, ch. 177, and 1824, ch. 199, to pay and discharge their debts to the said bank, in the notes and certificates of deposit issued by said bank, at the par or nominal value or amount of such notes or certificates of deposit; which right and privilege were not extinguished or lost to them, by operation of either of the said deeds, but remained unimpaired.
And that Thomas  [**14]   Ellicott, John B. Morris and Richard W. Gill, the trustees named in the deed of trust of the 5th April, 1834, are not only authorized and bound by the provisions of the acts of 1818, ch. 117, and 1824, ch. 199, independent of the resolution No. 1, passed at a special meeting 

 [*372]  of the directors of the Bank of Maryland on the 23d of March, 1834, and of the resolution passed at a special meeting of the directors on the 5th April, 1834, or either of them, relative to the privilege of debtors to the bank, to pay such debts in the notes and certificates of deposit issued by the bank, to receive such notes and certificates at their par or nominal amount or value, in payment of debts to the bank, as the bank itself would have been bound to receive them, if no such resolutions had been passed, or deed of trust executed, whether obtained before or after the execution of the said deeds or either of them, by the debtor or debtors to the bank offering them in payment of their respective debts.
JOHN BUCHANAN,
JOHN STEPHEN,
STEVENSON ARCHER,
THOMAS B. DORSEY.  

12 of 41 DOCUMENTS 

BENJAMIN ECCLESTON vs. STATE USE MARY KENDALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 316; 1835 Md. LEXIS 31 

December, 1835, Decided 

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

This was a scire facias issued in the name of the State of Maryland, for the use of Mary Kendall, on the 24th of June, 1833, to compel the appellant, as the surety of one Elijah Brookes, to pay to the said Mary, the sum of $ 120, as a compensation for the maintenance of her female illegitimate child, of which said Brookes was the father.

The proceeding was grounded upon the following order, by a justice of the peace, the service of which on the appellant, and his refusal to pay the same, was proved.

"State of Maryland--Baltimore county, to wit:--

On application to me by Mary Kendall, the mother of a female illegitimate child for an order on Elijah Brookes, the father of her said child, for a sum of money, adequate to the maintenance of the said child. And whereas on the first day of April, in the year 1829, the said Elijah Brookes, and one Benjamin Eccleston, entered into a recognizance in the sum of thirty pounds, current money, to the State of Maryland, that the said Elijah Brookes, should indemnify Baltimore County, for all charges that might arise, for the maintenance of the said child; and whereas the said Mary Kendall,  [**2]  on this 4th day of May, in the year 1833, before me, the subscriber, one of the justices of the peace, of the State of Maryland, in and for Baltimore county aforesaid, appeared and made oath on the Holy Evangely of Almighty God, that she has not received any sum or sums from Elijah Brookes or Benjamin Eccleston, (his security,) for the use or maintenance of the said illegitimate child, in her care or custody, except for the first year, and that she hath maintained the said child from the 28th day of February, in the year 1829, until the 28th day of February last past, at which time the said child was five years old. You are therefore hereby ordered and required, to pay unto the said Mary Kendall, the sum of $ 120, as an adequate compensation for the maintenance of the said illegitimate child, for four years from the 28th day of February, 1829, and ending on the 28th day of February, 1833. Given under my hand and seal, this 4th day of May, 1833."

To the scire facias, which issued upon the recognizance, recited in this order, the appellant pleaded, that the justice of the peace by whom it was given, "had no authority in the law to give the same."

There was a general demurrer [**3]  to this plea, and joinder; and from the judgment of the County court sustaining the demurrer, and giving judgment for the $ 120, with interest from the date of the order, and costs, the appellant prosecuted an appeal to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The recognizance of the father of an illegitimate child, to indemnify the County from all charges that may arise for its maintenance, taken under the acts of 1781, ch. 47, and 1796, ch. 34, is both retrospective and prospective in its operation, and covers within the limited amount prescribed by the act of Assembly, all such charges arising between the birth of the child and its arrival at the age of seven years.

Under the act of 1796, a justice of the peace is competent to issue an order requiring the father and his sureties, to pay a sum of money not exceeding $ 30 a year, for maintenance provided for the child, anterior to the date of the order, and this, whether for one, or more years.  

COUNSEL:
D. STEWART, for the appellant, contended,

1. The acts of Assembly of 1781, ch. 47, and 1796, ch. 34, look to the prospective indemnity of the county from the charge of supporting illegitimate children.

The contract whatever it may be, is with the county, and the county alone therefore, can enforce it; but in this case, an attempt is made to enforce it, not only by a party not within its scope or provisions, but for a period antecedently to the date of the order.

2. But admitting that the appellant is liable in the present proceeding, still the judgment of the county court must be reversed. He can only be made to pay the £  30 with interest, in like manner as obligors in a bond; unless indeed, a contract of indemnity can be converted into a contract of compensation. State vs. Wyman, 2 Gill and John. Rep. 279.

MCMAHON for the appellee.

1. The act of 1796, ch. 34, requires the persons referred to, in its provisions,  [**4]  to do a certain act, which they are bound to do, whether the county is damnified or not. It imposes an imperative obligation to pay the money. If the mother, or any other person supports the child, the mother or such person is substituted for the county, having done that, which the father was bound to do, indemnified the county, and may then proceed against the father, and his sureties in the recognizance, for the money so spent, provided the amount be within the limits prescribed by the act.

The objection founded upon the retrospective nature of the order, cannot be sustained. If injury had resulted to the county by the maintenance of the child, the recognizors could have been compelled to indemnify; and if so, the party who saved the county harmless may do the same. Under the act of 1796, the father is bound to support the child for seven years from its birth, and not merely from the date of his recognizance, which is therefore necessarily, to a certain extent, retrospective.

2. The question of the liability of the appellant, beyond the penalty and interest, is not presented by the demurrer; but if it was, the judgment of the county court is not erroneous, as the obligation [**5]  in this case, is a continuing obligation for seven years.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*319]  DORSEY, Judge, delivered the opinion of the court.
Whatever may be the literal import of the acts of Assembly, passed November session, 1781, ch. 13, and the supplements thereto passed, the first in 1785, ch. 47, and the second in 1796, ch. 34, we hold ourselves bound by the uniform judicial construction given to those acts of Assembly, in the courts of justice of the State of Maryland, from the passage of the act of 1796, to the present day; according to which, it has always been held, that the recognizance of the father to indemnify the county, "from all charges that, may arise for the maintenance of his illegitimate child, is retrospective as well as prospective in its operation; and covers within the limited amount prescribed by the act of Assembly, all such charges arising between the birth of the child, and the period of its arrival at the age of seven years. And by the same construction it has always been held, that it was competent for a justice of the peace, under the said act of 1796 [**6]  to issue an order, requiring the father, and his 

 [*320]  securities to pay a sum of money, not exceeding thirty dollars a year, for maintenance provided for the child, anterior to the date of such order.
Having stated the settled general interpretation of the acts of Assembly, and of the recognizance entered into, in pursuance of the requisitions thereof, we have thereby disposed of those objections of the appellant to the judgment of the county court, resulting from the alleged exclusively prospective operation of those acts; according to which it was contended that the recognizors were liable for nothing that had occurred before the recognizance was taken; and that no order could be issued thereon for maintenance, furnished the child antecedently to the issuing of such order.
To the scire facias issued in this case, the appellant pleaded that the justice of the peace, had "no authority in the law" to issue the order whereon the scire facias was founded. A general demurrer to this plea, and joinder therein, after the disposition previously made of the appellant's other objections, to this order, presents to us the isolated question; whether the justice of the peace had [**7]  the authority to issue the order requiring the payment of the one hundred and twenty dollars? Upon the authority of the justice of the peace to issue such an order we entertain no doubt.
The time of the maintenance of the child being four years, the power of issuing an order requiring the father, his surety or sureties, to pay such a sum of money as may appear adequate to the maintenance of the child, not exceeding thirty dollars per annum, is explicitly given to the justice of the peace by the act of 1796, ch. 34. As far, therefore, as regards the abstract authority of the justice of the peace to issue the order in question, we entirely concur with the county court in ruling good the demurrer, and affirm their judgment.
JUDGMENT AFFIRMED.  

13 of 41 DOCUMENTS 

JAMES JENKINS vs. JAMES P. WALTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 218; 1836 Md. LEXIS 23 

December, 1836, Decided 

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

On the 23d August, 1836, James P. Walter filed his petition in the above court, charging that during his minority, the appellant as his guardian, had received his property and settled several accounts with said court, that since the petitioner had come of age, he had demanded the balance due him, and he had not been paid. Prayer for an account and relief.

The appellant by his answer, admitted the guardianship, that he had settled accounts; and that on the day of his receiving a sum of money in which his ward was interested, (with two other of his wards,) he deposited the same in the Bank of Maryland, at an interest of five per centum per annum, and received from said bank a certificate of said deposite, on which said certificate he endorsed on the same day the words following, "The within $ 907 85 is the property of James P. Walter, Joseph A. and Sarah Walter, and placed in the Bank of Maryland for their benefit, Baltimore, August 13th, 1832," and signed his name thereto; that he afterwards obtained interest on said deposite, and stands charged therewith in his accounts settled with this court; that in the month of March,  [**2]  1834, the said bank failed, and conveyed its whole estate to trustees for the benefit of creditors; that when the appellant made said deposite said bank was in high credit, and generally believed to be solvent and perfectly secure, and both before and after his deposite, was the selected place of deposite by this court; that he was advised not to part with said certificate, and still holds a certificate therefor, and that the petitioner knew his money was in the Bank of Maryland; that he is ready to pay the appellee's portion of said deposite in Bank of Maryland funds or notes, and submits to the court whether he is chargeable in any other mode.

The guardian's accounts settled with the Orphans' court, charged the appellant with so much cash generally; the certificate of deposite granted by the Bank of Maryland, on the day the guardian received the fund in controversy, was payable to James Jenkins, or order, and endorsed as follows:

"The within $ 907 85 is the property of James P. Walter, Joseph A. Walter, and Sarah A. Walter, and placed in the Bank of Maryland for their benefit.

JAMES JENKINS,

Guardian."

Baltimore, August 13th, 1832.

There were also some [**3]  endorsements of interest paid the guardian. It was in proof that before the failure of the bank, the guardian had exhibited this certificate thus endorsed for the purpose of showing that the fund belonged to his wards, and it was admitted that the bank before its failure was a depository frequently selected by the Orphans' court.

The Orphans' court (Harwood, Payson, and Ridgate,) decreed that the guardian should pay the balance due his ward with interest, until paid, from which decree the said guardian appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

Though this court feels itself bound to shield a trustee, in the honest and faithful discharge of his duties, it is also bound to exercise a vigilant care in protecting the interests of those who, from their tender years are incapable of protecting themselves.

Thus where a guardian had received a sum of money belonging to his ward, and on the day of its receipt, had deposited it in a banking institution then in good credit, but which subsequently failed, and taken a certificate therefor payable to himself, or order; it was held, that the loss resulting from the failure of the bank should fall upon him, though on the day of the deposite, by endorsement on the certificate he declared it to be the property of his ward, and placed in bank for his benefit.

If in such a case the party making the deposite had failed before the bank, the money deposited would have enured to the benefit of his creditors, and the ward must have sustained the loss; and although the exhibition of the endorsement on the certificate might have defeated the claims of creditors, the bank itself might have applied the fund in satisfaction of any claim due it from the depositor.

Quere, whether the guardian would have been protected, if without the sanction of the Orphans' court, he had deposited the money in the name of his ward. 

COUNSEL:
D. STEWART, for the appellant contended:

That the evidence showed, that Jenkins deposited the funds in his hands as guardian in the Bank of Maryland; that the money deposited was the ward's. In case of accident to Jenkins upon this proof, his executor would have been a trustee for Walter. At the time of the deposite he endorsed the certificate as his ward's. His acts and declarations co-temporaneous with this deposite show, that he had segregated it from the mass of his property, and marked it, as belonging to his ward. The responsive character of the answer, and the direct nature of the proof fully show this, and there is no [**4]  countervailing evidence. It is said however, that the deposite was made without authority, and upon the responsibility of the guardian. The record shows that the Bank of Maryland was a favourite depository of funds, under the control of the Orphans' court of Baltimore county. How far then can a guardian be charged with loss, because of no application by him to the court. No application is required in such cases for the act of 1798, sub ch. 12, sec. 13, looks rather to the guardian himself as a depository, and in this case he acted bona fide. I contend that if on application to the court, they would have ordered it to be made at five per cent. in the place selected by the guardian, and as he has acted with good faith he is not to bear the loss arising from the insolvency of the bank. The court will consider the act done, as having their sanction, when they would have so ordered had application been made. Lee, et al vs. Stone and McWilliams, 5 Gill and John. 19. All the guardian wants here for his perfect protection is the form and ceremony of a judicial order; and the court will award him that, when they see that all else was rightly done, and would have so ordered had a request been [**5]  submitted, and he is not to suffer from misapplied confidence. 2 Ves. Sr. 241. Rowth vs. Howell, 3 Ves. Jr. 565. 3 Bro. C. R. 434. There is not the least evidence that the guardian mixed their funds with his own. On the day of their receipt they were deposited in the bank, and so remain now. And as the guardian has behaved throughout with the most perfect good faith--never endeavoured to reap any advantage from their funds, but prudently deposited them as he would have deposited his own funds, in an institution in high credit, and believed to be solvent, he ought not to suffer. Bank of Maryland vs. Ruff, et al, ante.

JOHN SCOTT, for the appellee contended:

That the decree below was right; that the guardian deposited the money in his own name, payable to his own order, to get a credit for himself with the bank, and in the settlement of his accounts with the Orphans' court charged himself six per cent. interest, when in fact he was only receiving five per centum, for which he had some motive personal to himself. That the endorsement on the certificate, declaring the funds deposited to be the property of his ward was not made at the bank, but the money deposited in his own name,  [**6]  there to gain a credit with the bank, and subsequently endorsed to save himself harmless. Under such circumstances it cannot be considered that the wards' money was deposited in bank. If Jenkins had intended this as a guardian's deposite, nothing was easier for him than to have had it so entered on the books of the bank, and face of the certificate. The ward is not affected by the guardian's subsequent acts and declarations. It results that this deposite was made without authority, and the guardian must bear the loss. Trustees are not to act contrary to law, they are presumed to know the law, and this defendant should have acted under instructions from the proper tribunals.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*222]  STEPHEN, Judge, delivered the opinion of the court.
This is an appeal from an order of the Orphans' court of Baltimore county, directing the defendant, James Jenkins, the late guardian of the appellee, to pay to him the sum of $ 490 84 with interest thereon, from the 28th March, 1836, until paid. A part of this sum was deposited in the Bank of Maryland by the guardian [**7]  of the appellee, on the day he received it from the executor on his ward's account; the bank at that time being in high credit and in prosperous circumstances. The deposite however, was made and the certificate taken in his own name, and no communication was made to the bank at that time, that the money deposited was trust property. The bank was to pay for the money deposited an interest of five per centum per annum. On the certificate of deposite an endorsement was made, that the money deposited was the property of the appellee, but the fact of such endorsement was not at the time disclosed to the bank, and the appellant appeared upon the books of the institution to be the absolute proprietor of the sum deposited; and it does not appear that in his settlements with the Orphans court he ever communicated to that tribunal, that in making the deposite he acted in his fiduciary capacity, until the failure of the bank took place, in the year 1834. In his second account settled with that court, it appears he charged himself with an interest of six per centum per annum, upon the amount of his ward's property in his hands, including the sum so as aforesaid deposited. Upon this state [**8]  of facts the question arises, upon whom the loss arising from the failure of the bank is to fall? Is it to be borne by the ward, or ought the guardian to be held responsible for the consequences following from the ultimate insolvency of that institution?
According to the decision of the court below, the loss arising from that contingency is to be visited upon the appellant, and from that decision an appeal has been taken to this court for its revision, so that if erroneous, the error may be corrected. Although, in this transaction there may have been the most upright intention, and perfect good faith on the part 

 [*223]  of the guardian in making the deposite, still we are constrained to say, that we think the decision of the court below was correct, and that it ought to be affirmed. At the same time that this court feels itself bound to shield a trustee from harm, in the honest and faithful discharge of his duties in his fiduciary character, it is bound studiously to exercise a vigilant care in protecting the interests of those who, from their tender years, are incapable of protecting themselves. No principle seems to be better settled than that in such a case as this, any loss [**9]  arising from a misplaced confidence in the solidity of a banking institution, or other depositories of trust property must be borne by the trustee, and not by his cestui que trust. By making the deposite in his own name, he gained a credit with the bank, and reaped all the advantages which could be derived from the apparent ownership of the sum deposited, assuming his authority so to make such a deposite, and having received the benefit, the law declares, and justice seems to require, that he should bear the loss. Nor is there any peculiar hardship in the establishment of such a principle, which would deter a prudent trustee from assuming upon himself the responsibilities of such a fiduciary relation; as it is at all times in his power to avoid any risk or responsibility by clothing the transaction in its true colours, and making the deposite not in his own name, but in the name of him who is the real owner, and for whom he is trusted. That such is the doctrine of a court of equity, we need only refer to a case reported in 4 Maddox's Ch. Rep. That was the case of an agent, who gratuitously undertook the collection of debts for certain trustees, which he deposited with a banker, [**10]  then in good credit, but who ultimately failed; there as here, the money was deposited in his own name, and upon interest, and the vice-chancellor in delivering the opinion of the court expressed himself in the following emphatic terms. "This may be a case of individual hardship, but the court is bound to proceed upon those principles, which are deemed essential to the general interests of mankind. The defendant being the gratuitous agent of his sister's trustees, 

 [*224]  receives their money which he mixes with his own, by paying it into his own bankers and on his own general account. These bankers were in the habit of paying him an interest of three per cent. on the moneys in their hands. The defendant says he meant to give credit to the trustees for their proportion of the interest, but he never made any intimation to that effect. This money is partly lost by the failure of the bankers; and the question is, whether the defendant can throw this loss upon the trust. I will not say what might have been the effect if he had placed these moneys in the same bankers' hands, with full information of the trust and to a distinct trust account. It is sufficient to say, that here [**11]  the defendant gave no notice to the bankers that any part of the moneys in their hands was trust property. Both he and they treated the money as wholly his own; and the bankers considered themselves as his agents solely. It is said that he gave notice to the trustees that he had so invested the money, and that they did not object to it, and are therefore to be considered as having authorized it. If he had given full notice with whom he had invested it, and that he had mixed it with his own moneys, and that an interest would be derived from it, there would have been great weight in that argument, but his letter of the 26th of January, 1816, only states that it is in bank, not stating with what banker, or that it is mixed with his own moneys, or that a profit is to be derived from it. The fact alleged by the defendant, that he had always a balance in his bankers' hands equal to the trust money, is in my view of the case immaterial. I consider the trust moneys thus mixed with his own and placed in his banker's hands, on his own general account, to be an employment of the trust money for his own advantage or his own credit; and that he is therefore responsible for the loss which has resulted [**12]  from it." It is true this was the case of a gratuitous agency for trustees, but the principles upon which he was held responsible, would, we think, equally have applied if the deposite had been made by the trustees themselves, and a loss under similar circumstances had subsequently 

 [*225]  occurred. The reasoning of the court upon which the agent was held responsible, would equally have applied to his principals. The principle of the decision in 4 Mad. received the sanction of Lord Chancellor Eldon, in a case to be found reported in 11 Ves. 377. That was the case of a receiver who was charged with a loss arising from the failure of a banker, to whom remittances had been made to his own credit and use; and not to a separate account for the trust. In that case the Lord Chancellor says, it would be most dangerous to let a receiver deal with the money as his own, until the time his accounts are to be passed, "and if any loss occurs, then to deal with it as the trust estate."
In the settlement of his second account with the Orphans court the appellant charged himself with the legal interest of six per centum, and not with the bank interest for which [**13]  he had stipulated upon making the deposite. It is not readily perceived upon what ground this was done, unless he considered the deposite to have been made upon his own responsibility; and if prior to the failure of the bank, he had become insolvent, the credit which he obtained with the bank on his own account would have enured to the benefit of his creditors, and his ward must have sustained the loss. In the case above referred to in 11 Vez. the Lord Chancellor says, if he (the receiver,) had failed before the failure of the bankers, this estate could never have claimed any part of the balance there, for it was carried to his own private credit, and there was nothing to prevent his paying any other debt with it; and although the claims of creditors upon the fund deposited might be defeated by the exhibition of the endorsement upon the certificate, showing on whose account the deposite was made, yet we think it clear, the bank would have had a right to appropriate the money so deposited to the satisfaction of any demand they might have had against the appellant. This may be a case of some hardship to the appellant, but in such a conflict of interest it is of less consequence [**14]  that individual injury should be sustained, than that the wisdom and policy of established principles should be violated.

 [*226]  Before closing this opinion we wish it however, to be distinctly understood, that we do not mean to decide that a guardian could protect himself from loss, by making the deposite in the name of his ward without the sanction of the Orphans court, but mean to leave that question unaffected by any views herein expressed.
We therefore think that the decree of the Orphans court of Baltimore county was correct, and ought to be affirmed with costs.
DECREE AFFIRMED.  

14 of 41 DOCUMENTS 

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

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 190; 1836 Md. LEXIS 19 

December, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was an action of covenant on a policy of insurance. It is the same case reported in 6 Har. and John. 408, and 2 Gill and John. 136, to which reports the reporters now refer for a more detailed account of the evidence in the cause.

The policy on which the claim was founded, was at, and from Rio de la Plata to Havana, with liberty of Martinico; on the cargo of the brig Eugene, Charles A. Chatumeau, master, valued at $ 6,000.

The cargo with which the brig sailed, consisted exclusively of mules and jackasses; and on her voyage, and before she reached Martinico she encountered a violent storm, which killed the principal part of the live stock, shattered the vessel and forced her to repair to Rio de Janeiro, where she was condemned as unworthy of repairs, and with a small number of mules remaining alive, sold for account of whom it might concern. The cargo was regularly abandoned. There was evidence to show, that the principal trade from Rio de la Plata to Havana, was in beef; mules and jackasses were sent to the French West India islands. A trade exclusively in mules and jackasses from Rio de la Plata to Martinico, and proof of mules,  [**2]  &c. being occasionally shipped from Rio to Havana, with jerked beef. There was also proof of a usage among underwriters in Baltimore, to consider that words liberty of a place in a policy of insurance gave liberty to trade; so did liberty to touch, or liberty to touch and stay. There was evidence also of a prevailing practice to use Martinico for the purpose of procuring a clearance from that port for Havana.

After this evidence the plaintiffs prayed the following instruction to the jury: if the jury find from the evidence in the cause, that at the time of making the policy of insurance in this cause, and before, the trade from the river La Plata to Martinico, was exclusively in mules and other live stock exported from the river La Plata, and that mules were an article of trade and export from Rio de la Plata to Havana, during the same period; and if they also find, that by the general usage of trade of the city of Baltimore, at the time of making the said policy, and before, the "liberty of Martinico," mentioned in the policy, and in the order of insurance in this cause, was understood and construed to give the assured the right of carrying a cargo from Rio de la Plata to Martinico,  [**3]  and there selling the whole cargo, and of terminating the voyage there, if the assured thought proper to do so, then if the jury shall believe the rest of the evidence offered by the plaintiffs in the cause, the plaintiffs are entitled to recover, notwithstanding the omission to specify live stock, or mules and jackasses, as the cargo meant to be insured. Which instruction the court refused to give.

The plaintiff then moved the court to instruct the jury as follows: if the jury find from the evidence in the cause, that according to the course of trade, at and long before the making the policy of insurance in this cause, mules and other live stock were the sole articles of export from Rio de la Plata to Martinico; and that at the time and long before the making of said policy, mules were an ordinary article of export from Rio de la Plata to Havana; and if the jury further find that by the usage and practice among merchants and underwriters in the city of Baltimore, at and long before the time of making the said policy, the "liberty of Martinico," mentioned in the order for insurance in this cause, and in the policy aforesaid, conferred upon the assured, the option of going to Martinico [**4]  from Rio de la Plata, and selling there the whole cargo laden at Rio de la Plata, and of making Martinico the termination of his voyage, or of selling a part of his cargo at Martinico and carrying the remainder to Havana, or of unlading his whole cargo at Martinico and taking in and carrying a new cargo thence to Havana; and further, if the jury do not find that Martinico was ever used as a port to get a clearance to enable a vessel sailing from Rio de la Plata to Havana, to obtain an entry into Havana, then the fact that the direct trade from Rio de la Plata to Havana, consisted in other articles besides mules, does not preclude the recovery of the plaintiff in this cause. Which instruction the court refused to give, but instructed the jury upon all the evidence in the cause, that the plaintiff could not recover, because he had not shewn either an exclusive direct trade in live stock from Rio de la Plata to Havana, nor an exclusive indirect trade from Rio de la Plata by Martinico, to Havana.

The plaintiff excepted; and the verdict and judgment being against him, he brought the cause to this court upon appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action of covenant upon a policy of insurance, in which the words "with liberty," of a port were used, it was held, that those words, confer a power subordinate to the general course of the voyage.

They do not necessarily import an intention to trade at the port mentioned; nor do they amount to an assurance, or intimation to the underwriter, that the assured looked to the port of privilege under any circumstances in the contemplation of the parties, as that, at which the voyage was designed to terminate.

Mere awakening circumstances, inciting the underwriter to inquiry, are not sufficient to relieve the assured from the necessity of making known to the former the fact, that the cargo for insurance consisted of live stock. A knowledge of this fact, previous to the insurance, must be shewn in the underwriter, or an imputed knowledge, by proving, that on the voyage insured, live stock is the only article of commerce; and such imputed knowledge does not result from the introduction into the policy of the words, "with liberty," of the port, to which such exclusive trade is shewn.

When insurance is demanded on live stock, it is the duty of the assured to notify the assurers of the nature of the cargo, and his failure to do so, vitiates the policy.  

COUNSEL:
MAYER, for the appellant.

The decision [**5]  in this cause formerly made depended on the case of 4 Pick. 429, but in the record before brought up, there was no evidence of an exclusive trade in mules; here an exclusive trade in them to Martinico is proved; and a trade in jerked beef and mules from Rio de la Plata to Havana. The proof also shows, that in 1820, the trade in mules to Havana was more active than since; and that vessels carrying mules generally carry nothing else. There is also in this record, proof of usage, that liberty of a port is a right to trade there, and make it a terminus of the voyage. Then the voyage described from its nature indicated the articles to be carried. Martinico was one of the points of the voyage, and the underwriter considered the premium to be charged on such enterprises. It was an insurance on cargo, asking a liberty of a port in connection with such cargo. Why use if not to trade? But the proof of usage is clear and positive. Martinico then was one--or might be one of the proposed termini of the voyage, and the underwriter was bound to know that mules might be carried. The alternative of carrying live stock to Havana, was presented to the underwriter and put him on inquiry. Then under the [**6]  proof of usage the policy is the same as if it had been to Martinico and Havana. In effect to either or both ports. In point of law, then they were notified the live stock would be carried, for there was no other article of trade common to both ports from the Rio de la Plata. Marsden vs. Reid, 3 East. 572, a voyage to several ports is a voyage to one or all of them; but if she proceeds to more than one port she must visit them in the order named, Kane vs. Columbian Insurance Company, 2 John. 264. Houston vs. New England Insurance Company, 5 Pick. 89. Hale vs. Mercantile Marine Insurance Company, 6 Pick. 172. The underwriter must take notice of the course of trade--facts in connection with it are presumed to be in his knowledge. If he desires more information he must seek it. He is not merely to be passive and act exclusively on the facts presented by the order to his consideration. Allegre's adm'rs vs. Maryland Insurance Company, 2 Gill and John. 160. 1 Pet. S. C. Rep. 159. Maryland and Phoenix Insurance Companies vs. Bathurst, 5 Gill and John. 227, 228. In this voyage the underwriter took the risk of the fact that the second port, Martinico, might be used to trade at, 2 Phil. Ins.  [**7]  80, 85 to 88.

Again the court below erred in not submitting to the jury the question of the increase of risk between a live and dead cargo. The materiality of that increase was for the jury. On the materiality of concealment it is competent for the assured to show that an adequate premium was paid. Every case where a policy is sought to be avoided on the ground of increased risk, depends on its own peculiar circumstances. Judicial knowledge does not extend to this, and we have lost the right of argument before the jury from the mode in which they were instructed.

D. STEWART, for the appellee.

The case of Allegre's admr's vs. Maryland Insurance Company, in 2 Gill and John. 162, declares that a policy on cargo will not cover live stock, and requires a disclosure to the underwriter to extend its operation. The question now is, whether the course of trade will affect the underwriter with notice, and leave him liable to its consequences. The general meaning of the term cargo, excludes the company from liability for live stock. The company relies on the general rule. The plaintiff must show himself within the exception, the burthen of proof is on him. He must establish the [**8]  course of trade--Rio de la Plata is the beginning and Havana the end of the voyage insured. Is there evidence in the cause which can bring to the underwriter, at the time of the inception of the contract, such a notice as is equivalent to notice to him of the actual voyage in contemplation at that time? The appellee finds this in the right to go to the port of privilege, Martinico. He had a right to go there, but that right must be consistent with the objects of the main adventure. Such is the American law. The liberty is subordinate to the main adventure. 1 Mar. Ins. 191, 192. The order of the voyage which the parties contemplated, on which the vessel set out, was for Havana. It was to that port in fact and in contemplation of law; and there is no proof of exclusive trade in live stock between Rio and Havana; and consequently, the exception relied on is not established as to what constitutes an exclusive trade, in Parker, et al vs. Jones, 13 Mass. 177. The cases in 2 John. 254, and 5 Pick. 89, decide that the particular order of ports as stated in the policy need not be followed. They are cases on the point of deviation, and decide that a port of privilege may be avoided, not that [**9]  it enlarges the ordinary effect of the policy; nor that it is a terminus of the voyage--again, the exception on which we rely calls for an exclusive trade, as distinguished from a casual or accidental trading.

MERIDETH, further for the appellee.

The counsel for the appellant misapprehends the opinion of the court on the second appeal. The court will find in that some little variety in the evidence, but it does not affect the principle decided by this court. It stands as it did on the last appeal. To show this it may be necessary to compare the cause, as it was and now is. The nature of the insurance, the voyage and all the matters already stated need not be repeated, nor the several minor points disposed of on the last appeal; one important point was on the effect of the order, standing on the word cargo. The county court before decided the cause in the absence of all proof of usage, whether "cargo," excluded or included live stock. They placed themselves on the materiality of the increase of the risk, and a concealment fatal to the risk. Allegre's adm'rs vs. Maryland Ins. Co. 2 Gill and John. 144, and put the case to the jury on those questions. The argument now used, that [**10]  the underwriter was bound to look to the course of trade was used then; and the court said, they must look to the whole voyage. the underwriter was bound to know the course of trade--and that a cargo of live stock might be carried.

But when we look to the points decided by the court, we see that the word "cargo," did not cover live stock. The nature and character of live stock as cargo was considered, and the right of the underwriter to know that a cargo of live stock was intended to be transported, sustained. The exceptions are founded on a known usage, that cargo shall comprehend live stock when the contract was made, or upon an exclusive trade in live stock on the voyage insured. These bind the underwriter. Then why did the cause go back before? Because evidence of a usage of trade that cargo covered live stock was offered and rejected by the court.

The construction of the order followed the general principles of insurance, and put on the reason and authority of the case from 13 Mass. on the former trial, the proof showed an exclusive trade in live stock from Rio to Martinico, and an occasional trade in those articles to Havana. But the underwriter is only bound to look [**11]  to the course of trade on the voyage from La Plata to Havana,--to regard the termini and not the intermediate port,--the course of trade on the voyage described in the order.

Does the additional evidence now in the cause enlarge the liberty at Martinico? It declares that liberty to touch means to trade. The American cases show that it is a liberty to trade, provided it produces no delay, in which event it discharges the underwriter. 1 Phil. Ins. 203. I contend now that the court before had the same evidence of usage as now, the point, that liberty to touch was to trade, was fully argued. It is re-argued that the underwriter must know the result of this liberty. This was conceded in the cause before. The underwriter is bound to look to the order, policy and course of trade in connection with it. This order is not in the alternative. It was not to Martinico or Havana--perhaps Havana, but describes a voyage to Havana. The trade which the underwriter was bound to know, was from Rio de la Plata to Havana, or to Havana via Martinico; not from Rio to Martinico, as the ultimate terminus of the voyage. The opinion of the court below, was in conformity to the decision of this cause, as [**12]  before reported. We admit that an underwriter is presumed to know the course of trade which he insures. The voyage gave a liberty to touch, what inference is he bound to make from this liberty? He is bound to believe that the assured would make a whole voyage, not a part and subordinate part. The vessel had in fact given up the liberty. All his papers show a direct voyage to Havana; she designed to abandon the liberty, and although it was the real voyage then being prosecuted, the assured turn round and plant themselves on the order, giving it a construction to bring it within the exception opposed to their real designs.

We contend also, that as no return premium was asked for, that the assured always contemplated going to Havana, and never considered Martinico as one of the termini of the voyage. Hughes on Ins. 137. 1 Phil. Ins. 174.

The circumstances and course of the voyage described in this order, were not calculated to awaken inquiry on the part of the underwriter, and so prevent his charging the assured with concealing the fact that live stock was to be carried. The order could not induce the underwriter to suppose that an alternative voyage to one of two ports was [**13]  intended; but on the contrary, the underwriter supposed the voyage was not to terminate at Martinico, which fact answers all the cases founded upon contingent termini, as where various distinct ports of destination were mentioned. 3 East. 573. 5 Pick. 89. 2 John. 283. It is true a voyage may terminate at an intermediate port; if the assured pleases the risk may end there. 28 Serg. and Low, 22. The risk ends where the voyage is given up. 1 Phil. Ins. 174. But the volition of the assured in terminating his voyage, cannot create a presumption against the underwriter; he cannot anticipate it, nor be presumed to look to it; his calculation is, that the whole voyage will be performed; he presumes it from the payment of the first premium; and if intermediate ports of termini are not intended to be used as set forth the policy does not attach. 1 Mar. 324. Moreover, this policy in terms only attached upon the cargo shipped at Rio de la Plata, and not the cargo laden at a succession of ports. Hughes, 127, 128. 1 Taunt. 463. 1 Phil. Ins. 70. 2 Phil. Ins. 60. The usage relied on does not change this view of the case. The usage shows that liberty means a right to trade, and so is the proof. But [**14]  then this is restricted by the terms of the policy. Usage does not counteract the express provisions of a contract. Its explicit terms prevail. 1 Phil. 14, 17. This court has said that the underwriter must look to the termini of the voyage and decided affirmatively, that an exclusive trade in live stock from Rio to Martinico will not do. It must be an exclusive trade to both ports. That the underwriter was bound to look to the course of trade on the voyage insured--and the decision of the court below was in strict conformity.

Upon the second point of the appellant, as to error from the materiality of the increase of risk not being submitted to the jury. The court decided that the term cargo did not generally cover live stock, as they increased the risk, and underwriter not bound unless previously informed of the risk; there was nothing for the jury. Increase of risk was no longer an open question.

Upon the whole there was no circumstance which called the attention of the underwriter to the course of trade between Rio and Martinico. The voyage was not to terminate, nor the cargo to be changed there. All circumstances induced the belief that it was a direct voyage to Havana.  [**15]  At Rio the assured determined to go there. What then was the object of the liberty? It was incumbent on the assured to announce that. It was not to trade, nor to terminate the voyage, nor to exchange the cargo. His object was to procure a clearance from a neutral port. The meaning of the term cargo being ascertained, the conclusion is, that the object of the assured in using it was not consistent with fairness, to divert attention from the cargo intended to be shipped. Where the policy discloses the voyage, yet if the circumstances connected with the application are calculated to mislead the underwriter, the policy is void. 1 Mar. 322. A policy literally true, if calculated to induce a false conclusion is void.

GLENN for the appellant in reply.

The case is free from fraud. The property shipped is fully equal to the valuation. The questions to be now decided are essentially different from those formerly presented for determination in this cause. The usage and proof of trade is new. The proof of exclusive trade in mules to Martinico is a new fact. The only point decided before was that the word cargo did not include live stock except under particular circumstances; we now establish [**16]  by proof that liberty of Martinico was a liberty of trading and terminating the voyage there, of selling all the cargo there, or of selling none of it there. The effect of a course of trade is the same as an express declaration on that subject. This, with the order, announces the intent to unlade at Martinico. It is also notice that the trade is carried on but in one commodity. Both, and each of the parties, are bound to know this. It is equivalent to an express insurance on cargo from Rio to Martinico. When I ask for liberty to touch, stay, and trade at a port, and but one article is carried to that port, why is it, that the underwriters, bound to know the course of trade, do not know the nature of the cargo composing such enterprises? This is like other risks not ordinarily covered. If a party announces his intent to visit a belligerent port, then the belligerent character of the cargo need not be described. The case of the Maryland and Phenix Ins. Co. vs. Bathurst. 5 Gill and John. 159, 160. The underwriter may inquire and demand a warranty, and should not let the voyage go on, and after a loss set up his own default as an excuse for not paying. This is a case of construction in [**17]  which we are to look at the policy and order, interpreted by the usage proved in the cause, and as if it had been incorporated in the order and policy. The prayer presents a question of construction, and nothing else. The order is for whom it may concern; it may cover belligerent risks. It is from the river Plata which covers any port on that river. It is with a liberty, what does that include? It is a general liberty--nothing restrains it. It is not a special liberty as to do a particular thing, or use the port for a particular purpose: but an unrestricted universal privilege to use Martinico, for all, and any purpose, as any other port. The usage fixes the meaning of the liberty. If this is not so the liberty is paid for without an equivalent, for the only article in which a trade to the port of the liberty is carried on with, is that carried on this occasion; the liberty is to try both markets, and to do this, the assured has a right to carry cargoes suitable to both. Live stock was the only article common to both. We proposed to submit to the court on the proof, that the object of stopping at Martinico was to trade, and the counsel now opposed to us are not at liberty to argue [**18]  here upon that view of the case. If the liberty as expounded by the usage makes an insurance at and from Rio to Martinico and thence to Havana, which brings us within the exception, as proof shows an exclusive trade to one of the ports, if it was a case of alternative destination in terms, its effects conceded. We contend that the liberty set up and established here produces that result.  

JUDGES:
Argued before BUCHANAN, Ch. J. and STEPHEN, DORSEY and CHAMBERS, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*200]  DORSEY, Judge, delivered the opinion of the court.
The only question discussed in this cause arose as to the effect of the words in the policy, "with liberty of Martinico" with liberty of a port, is a power subordinate to the general course of the voyage.
It does not necessarily import an intention to trade. It may, and ordinarily is granted for other and different purposes. It is not an assurance or intimation to the underwriters, that the assured looked to the port of privilege, under any circumstances, in the contemplation of the parties, as that, at which, the voyage was designed to terminate. Mere awakening circumstances, inciting the assurer to inquiry, are not sufficient to relieve [**19]  the assured from the necessity of making known to the insurer, the fact that the cargo for insurance consisted of live stock; as was in effect decided in the case of Allegre's administrators vs. The Maryland Insurance Co. 2 Gill and John. 136. A knowledge of this fact previous to the execution of the policy must be shown in the underwriter; or an imputed knowledge by proving that on the voyage insured live stock is the only article of commerce. But it is insisted that a knowledge of the nature of the cargo must be imputed to the underwriters, because they gave the assured the liberty of Martinico, which confers the license to trade there. This 

 [*201]  position cannot be sustained. It rests on a principle of false logic, universally exploded: It draws a general conclusion from an isolated fact. The grant of a license conferring a a power to do a variety of acts, does not necessarily imply the commission of all the acts authorized. Had the design of the assured been, to call at Martinico for a clearance, or to obtain supplies necessary to the prosecution of the voyage, or to do any act, or transact at Martinico any business, wholly unconnected with the trade carried [**20]  on between La Plata and Martinico, the license in such case required, and that in this case granted, would have been identically the same. In requiring the liberty of Martinico, the insured did not necessarily notify the insurer, that the object of the privilege was to trade at Martinico, and was not therefore an unequivocal intimation of the nature of the cargo. And if we advert to the circumstances attending this insurance, so far from their intimating to the assurers that the cargo was of live stock, the reverse was the natural conclusion to have been drawn from them. According to the decision of this court in the case in 2 Gill and John. 136, when insurance is demanded on live stock, it is the duty of the assured to notify the assurers of the the nature of the cargo, and his failure to do so vitiates the policy. Of this principle of the law of insurance, the underwriters in this case must be presumed to have had knowledge. From the order for insurance, apart from the liberty of Martinico, the necessary inference was, that the thing insured was a dead cargo, and giving to the order of insurance and policy a fair and reasonable legal construction, this inference [**21]  is not controlled by the privilege granted as to Martinico. If the design of this liberty was, as has been urged, to terminate the voyage, and sell the whole cargo at Martinico, should the market prove favourable, Martinico would have been made one of the termini of the voyage; and a proportionate return of premium would have been provided for in the event of the voyage terminating there. Such an omission was the strongest implied intimation that could be given, that the object of the assured in requiring the liberty of Martinico, 

 [*202]  was not that now ascribed to it in the argument; and there is nothing in the proof offered which would give to the policy a different interpretation from that, which on its face it purports to bear.
JUDGMENT AFFIRMED.  

15 of 41 DOCUMENTS 

JOHN GLENN AND JOHN P. KENNEDY vs. FRANCIS M. FOWLER AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 340; 1836 Md. LEXIS 28 

December, 1836, Decided 

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

On the 22d November, 1836, Francis M. Fowler, Samuel Poultney, David U. Brown, and Ann Poultney, administratrix of Thomas Poultney, filed their bill in chancery, charging that in the year 1832, Samuel Poultney and William M. Ellicott entered into a co-partnership in the city of Baltimore, as bankers, under the style of Poultney, Ellicott & Co. engaged in business and contracted debts still due. That in 1835, said firm constituted said Fowler, their attorney, to settle and adjust their business; that he continued to act as such attorney until the 4th September, 1836, when said Poultney and Ellicott delivered to him a valid deed of assignment and transfer of all and singular the estate of the said firm in trust, to collect and make distribution equally among all the creditors of the said firm, and which deed was made an exhibit with the bill as a part thereof; that said Fowler accepted the trust, and is engaged in the due execution thereof; that on the 16th November, 1836, William M. Ellicott petitioned for and obtained a personal discharge under the insolvent laws of Maryland; that said Brown was appointed his provisional trustee, and bonded as such; that [**2]  afterwards the commissioners of insolvent debtors, on the application of persons representing themselves creditors of Poultney, Ellicott & Co. but whose alleged claims were not inserted in the schedule of said insolvent, appointed John Glenn and John P. Kennedy, permanent trustees for the creditors of said Ellicott, and that a very large majority of all the creditors whose claims are not disputed and contested, but are admitted by the said schedule, have recommended said Brown as permanent trustee, as will appear by the recommendation of said creditors in the schedule and papers of said insolvent herewith filed; that the said Glenn and Kennedy, as such trustees, have sued out of Baltimore county court a writ of replevin, returnable on the 2d January, 1837, against said Poultney, Fowler and Brown, to recover the various books of accounts of said firm of Poultney, Ellicott & Co. That the said Ann Poultney, administratrix, is a creditor of the said firm on their certificate of deposite for $ 25,000, and as such is advised she has a right to require that the said Fowler shall proceed in the execution of said trust according to the terms of said deed, and that chancery will protect the [**3]  same; that the execution of the said writ of replevin will deprive the said Fowler of the possession of the books of said firm, and prevent certainly, until the return day of the writ, his executing the said trust; that the deed to Fowler is valid, and that if it could be questioned the said Samuel Poultney would then be entitled to the sole possession of said books, &c. Prayer for an injunction to prevent the execution of the replevin, and for subpoena for said Glenn and Kennedy, and for general relief.

The deed exhibited with the bill from Samuel Poultney and William M. Ellicott, was dated the 14th September, 1836, and conveyed to the said Fowler, in consideration of the sum of five dollars, "all and singular the property and estate, rights, credits, and effects of the firm of Poultney, Ellicott & Co. and all debts due said firm and securities therefor in trust." That the said Francis M. Fowler shall and may sell and dispose of, lease and demise, transfer and assign in such manner and upon such terms as he may deem proper and just, all or any part of the estate, property, rights, credits, or effects hereby conveyed and transferred, and the proceeds arising therefrom or benefits [**4]  thereof, shall, after deducting all the expenses incident to this trust, and all counsellors' fees and other costs and charges incurred, or which may hereafter be incurred by the said co-partners, or either of them by reason of any suit or controversy pending, or which may be instituted in regard to the transactions of the said co-partnership, apply to the payment and satisfaction of the aforesaid debts of the said firm, and to pay and satisfy all or any of such debts of said Poultney, Ellicott & Co. either in the specific property or estate, rights, credits, and effects hereby conveyed or any part thereof, or by sale, exchange, or transfer, or assignment, and after the payment of all the said debts to re-convey to said partners the entire residue, if any there shall be, of said estate. And in case the said estate shall be insufficient to pay and satisfy in full all the said debts as aforesaid, then the said Fowler, after ascertaining all the debts which are truly and lawfully owing from the said firm, shall divide the same estate, effects, credits, and property, or the clear proceeds thereof, equally and rateably among the creditors to whom the said debts are so truly and lawfully [**5]  owing; and moreover the said Samuel and William, do hereby empower the said Fowler to appoint one or more trustees in addition to himself, or independently of himself, he relinquishing his said trust, provided he shall deem it necessary for the more perfect execution of these presents, and provided that the said Francis M. Fowler shall not appoint such one or more additional trustees without the consent and approbation of the said Samuel and William, or the survivor of them previously obtained in writing, and shall appoint such person or persons as shall be nominated and approved by the said Samuel and William, or the survivor of them."

The recitals of this deed referred to the prior appointment of said Fowler, as their agent, to wind up the business of said firm--the dissolution of said firm and the design to distribute its funds rateably among the real creditors thereof.

The several exhibits referred to in the bill were filed with it.

On the 22d of November, 1836, the chancellor (Bland,) ordered the injunction as prayed.

After this the defendants, Glenn and Kennedy, filed their answer to the bill, and petitioned the chancellor without further notice to dissolve [**6]  the injunction. This petition the chancellor dismissed, and the defendants took an appeal as well from the granting of the injunction as the dismissal of the petition.

The answers of the defendants not being considered by this court upon the appeal are omitted by the reporters.  

DISPOSITION:
ORDER REVERSED.  

HEADNOTES:

The great purpose and object of a court of equity in assuming jurisdiction to restrain proceedings at law, is to afford a more plain, adequate and complete remedy for the wrong complained of than the party can have at law.

Where a statute has made provision for all the circumstances of a particular case, no relief in equity can be afforded, although the provisions of the statute may conflict with the notions of natural equity and justice entertained by a court of equity.

The several acts of assembly erecting the system which exists in Baltimore city and county, in relation to insolvent debtors, has in the first instance, invested the commissioners with the sole and exclusive jurisdiction upon the subject of appointing permanent trustees; and over the exercise of that power the court of Chancery can exert no control to supervise or reverse their appointment for any pretended error of judgment.

In actions of replevin, the proceedings with reference to the possession, are regulated with exact minuteness by the acts of assembly. Upon the return of the writ, the court is commanded to entertain the question of possession, as a preliminary question altogether independent of the title; and to return the property to the defendant, unless it shall appear that his possession was forcibly or fraudulently obtained, or that the possession first being in the plaintiff, was got or obtained by the defendant without proper authority or right derived from the plaintiff. On this preliminary question the whole matter of fraud may be investigated as fully as in a court of Chancery.

Courts of equity have sometimes interposed to prohibit proceedings at law, upon the ground that having possessed itself of the general subject, by an application for its aid, to compel a disclosure or for the exercise of some other admitted jurisdiction, it will dispose of the whole matter and thus avoid a multiplicity of suits.  

COUNSEL:
KENNEDY, for the appellants, contended:

That the chancellor erred in granting the injunction in this cause.

1. Because from the bill it was apparent that W. M. Ellicott and Samuel Poultney had become insolvent, and had taken the benefit of the insolvent laws, and that shortly before they had done so they had executed a deed of trust of all their property and effects to Francis M. Fowler, as trustee, which deed was in fraud of the insolvent laws, being designed to prevent the creditors of Poultney and Ellicott from nominating a trustee, as by the said laws they had a right to do.

2. Because the appellants as permanent trustees of the said Poultney and Ellicott were entitled to the possession of the books and papers of the said insolvents, not only by reason of the said deed above mentioned being fraudulent and void, but also notwithstanding that deed, supposing it to [**7]  be good; their right to said books and papers being equal and concurrent with the right of any other trustee.

3. Because it did not appear by the bill that the said trustee had given any security for the execution of his trust, and that it was therefore improvident in the chancellor to issue the injunction without requiring bond which he did not do. He cited: Dorsey's Am. Law Insol. 51. Eckhardt, et al vs. Wilson, 8 Term Rep. 141. King (in aid of Braddock vs. Watson,) Cond. Exch. Rep. 265. 4 Conn. Rep. 146, 155, 162, 172.

MCMAHON, on the same side.

This bill concedes us a prima facie case. Its equity rests upon a conflict of title. Fowler is in by deed. The appellants claim under the insolvent laws. The commissioners of insolvent debtors acted rightfully. Williamson vs. Carnan, 1 Gill and John. 185. They had the legal power of appointing trustees, and their judgment cannot be impeached collaterally.

Does the bill entitle chancery to interfere by injunction? Where there is a dispute at law, injunction will only go to prevent irreparable injury, not on the ground of title alone. Jerome vs. Ross, 7 J. C. R. 322. Where there is a prompt and adequate remedy at law, chancery [**8]  will not interfere. Irreparable injury here is not pretended. The sole injury alleged is a temporary one. No detriment to property is alleged. No more than suspicion at law of our title, and no reason shown why the property replevied may not be restored specifically. Where is such a jurisdiction to terminate? What action of replevin can go on if such a bill may arrest it? No case of conflict of title in which injunction will not be granted. The grant of this injunction is against the analogies of the law to stay legal process. It never interferes except to preserve the subject matter of the dispute. But here there is an adequate remedy at law. At the return of the writ the defendant in replevin may move for restitution and may have it if entitled.

The parties claim title in several distinct rights.

Ann Poultney, as a general creditor.

Samuel Poultney, as the solvent partner of the house.

D. U. Brown, as the provisional trustee of Ellicott, the insolvent.

Fowler, under the deed to him.

The defendants are permanent trustees under the insolvent law.

That system has several objects--equal distribution--trustees chosen on a recommendation of majority of [**9]  creditors--this is ancillary to an equitable distribution of assets--power to remove trustees on application of creditors--trustees appointed and removable on motion of creditors--act of 1820, ch. 193.

This trustee, Fowler, was not appointed by creditors--is not removable by them--is competent to discharge himself--may convey the estate to another. His office is wholly at war with the insolvent system. This trustee is the agent of the debtors--a fraud may be kept up in perpetuity--he may appoint a successor--that successor guilty of a fraud may appoint another. As to what assignments are good against dissentient creditors. If made, coupled with condition of release for a portion of the debt, it is void. Such deeds are only valid on unconditional surrender of the property. This deed is at war with the policy of the law, and cannot be sustained. The grantor about to become an insolvent debtor, can do nothing inconsistent with that relation without the privity of his creditors. He cannot strip himself of his property, and in a state of nudity leap into the gulf of insolvency.

Every such deed is a fraud on the principles of the common law. Every deed made in contemplation of [**10]  bankruptcy is a fraud, though for the equal benefit of creditors, as it takes from the creditor the appointment of assignees; and where you find the same elements in any other case the deed is fraudulent and void.

Such a deed validated is a premium to debtors to violate the insolvent law. Does any man doubt between the efficiency of trustees selected by debtors or creditors.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*346]  CHAMBERS, Judge, delivered the opinion of the court.
The court have to regret that in this case they have not 

 [*347]  had the benefit of an argument on the part of the appellees; but they have been compelled in obedience to the imperative rules of law to decide the case without such advantage.
They do not find it to be necessary, however, to express an opinion upon several points presented by the appellants' counsel, and it is their purpose to avoid the decision of any matter not immediately demanding their notice.
The great purpose and object of a court of equity, in assuming jurisdiction to restrain proceedings at law, is to afford a more plain, adequate, and complete [**11]  remedy for the wrong complained of than the party can have at law. 1 Story Com. 53.
The rule which confers the chancery jurisdiction in such a case is as well established and as much entitled to observance as the rule which clothes the same tribunal with jurisdiction, in cases of fraud, accident, or of trust, but both are rules of general and not universal application.
One of the excepted cases is, where a statute has made provision for all the circumstances of a particular case; no relief in equity can be afforded in such case, although the provisions of the statute may conflict with the notions of natural justice and equity entertained by a court of Chancery. 3 Black Com. 432. Fonbl. B. 1, ch. 1 sec. 3.
The material grounds assumed in this bill and on which the injunction is asked are, that the appointment of the appellants to be permanent trustees has been irregularly made, on the recommendation of those who ought not to have been regarded by the commissioners of insolvent debtors as creditors; that the court of law could not order a restitution of the property replevied till their next session; and that the trust created by the deed to Fowler, one of [**12]  the appellees, would in the interim be obstructed to the prejudice of the cestui que trusts.
The several acts of assembly erecting the system which exists in Baltimore, in relation to insolvent debtors, has in the first instance invested the commissioners with the sole and exclusive jurisdiction upon the subject of appointing a permanent trustee. Over the exercise of that power the 

 [*348]  chancery court can exert no control to supervise or reverse their appointment for any pretended error of judgment. The positive provisions of the statute are imperative. The chancery court can claim no jurisdiction then on that ground.
The proceedings in the action of replevin, so far as relates to the possession of the property involved in the suit, are regulated with exact minuteness by the acts of assembly. A bond is required before the plaintiff is permitted to remove the property from the possession of the party holding it. The very object and purpose of the bond is to protect the rightful possessor against all loss or damage he may sustain by reason of the interruption to his possession. 6 Gill and John. 453. 3 Gill and John. 247. The court at the return of the writ [**13]  is commanded to entertain the question of possession as a preliminary question, independent entirely of the title, and to return the property to the defendant in replevin, unless it shall appear that his possession was forcibly or fraudulently obtained, or that the possession first being in the plaintiff was got or retained by the defendant, without proper authority or right derived from plaintiff. The whole matter of fraud may, on that preliminary inquiry, be investigated as fully as in a court of Chancery, and the relief administered is precisely what is here claimed; that is, by awarding the possession of the property. The sole advantage then, which the applicant to a court of Chancery can expect, is to have that relief afforded him, a few weeks sooner than it would be, in the court of law, to which by the express terms of the statute the investigation and decision of the matter is confided, and where too, full indemnity is secured for any intermediate injury by the replevin bond. We do not think that the delay in a case like this is such a defect of ample and complete remedy as the rule contemplates. If it did it would be difficult to say in what case the court of Chancery [**14]  might not interpose its prompt aid to adjust disputed questions on the ground of defect in the courts of law.
The occasion did not exist in the case, upon which courts of equity have sometimes interposed to prohibit proceedings 

 [*349]  at law, on the ground that having possessed itself of the general subject, by an application for its aid, to compel a disclosure, or for the exercise of some other admitted jurisdiction, it will dispose of the whole matter and thus avoid a multiplicity of suits. No disclosure is sought; and so far from being intended to restrain a court of law from exercising jurisdiction over a subject previously depending in chancery, thereby making unnecessary litigation, it proposes by the means of a second suit to be prosecuted in chancery, to arrest the party plaintiff in his then pending suit at law, in which the complainant in chancery could have had the very same relief asked by his bill.
There are doubtless great difficulties in prescribing the precise boundary at which to limit the interposition of a court of equity, to restrain the assertion of doubtful rights, in a manner to produce irreparable injury or to preserve property more effectually, while [**15]  it is the subject of litigation, or to afford a more perfect and appropriate remedy. Yet we do not doubt that it would be an extension of its jurisdiction, not authorized by principle or authority, to apply it to a case like the present, where the party can have at law a remedy as effectual and complete, as clear and as certain as in a court of equity. Mit. Ple. 123.
The order and injunction is therefore reversed with costs.
ORDER REVERSED.  

16 of 41 DOCUMENTS 

JOHN KILGOUR vs. RICHARD H. MILES, and JOHN M. GOLDSMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 268; 1834 Md. LEXIS 21 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from St. Mary's county court.

This was an action of Covenant, brought by the appellant against the appellees, on the 12th of July, 1832, on the following contract, under the hands and seals of the parties.

"We, John M. Goldsmith, and Richard H. Miles, promise and oblige ourselves to deliver to John Kilgour, or his agent in Baltimore, on the first day of July next, three thousand bushels of good merchantable corn; and he, the said Kilgour, promises and obliges himself, his heirs and assigns, to pay for the same forty-five cents per bushel, on the delivery of the above corn. May 11th, 1832."

The plaintiff in his declaration averred, that he "was ready and willing to accept and receive the said corn at the rate or price aforesaid, at the time and place aforesaid, specified in the said articles of agreement, that is to say, at the city of Baltimore, on the first day of July, 1832, and was likewise at the time and place specified in the said articles of agreement, ready and prepared to pay for the said corn upon its delivery the rate or price, so as aforesaid agreed upon, in the said articles of agreement, to wit, the sum of forty-five cents per bushel; yet the said [**2]  defendants not regarding," &c.

The defendants pleaded "that they had the said corn ready to be delivered, according to the said agreement, but that they could not perform the same because it would have been against the laws of the land for them to do so, inasmuch as the 1st day of July, named as the day of performance thereof, was a Sabbath day, and this they are ready to verify"--wherefore they pray judgment, &c.

There was a general demurrer and joinder in demurrer to the plea; which the county court ruled good, and gave judgment for the defendants. The plaintiff thereupon brought the record by appeal to this court.  

DISPOSITION:
Affirmed. Motion Overruled.  

HEADNOTES:

Upon a contract to deliver merchandize at a future day, if the day mentioned be in fact Sunday, in analogy to the usage in other commercial cases, the day of delivery, according to the legal effect of the contract, is Saturday.

In pleading upon such a contract in an action brought to recover damages for a failure to deliver, the plaintiff having agreed to pay the price of the article contracted for on its delivery, he must aver his readiness to pay at the time and place, when and where, by the legal construction of the contract the delivery was to be made.

The "Sabbath," "the Lord's day," and "Sunday," mean the same day in all Christian communities, and includes the twenty-four hours next ensuing the midnight of Saturday.

It is the duty of the court to notice the days of the week on which particular days of the month fall.

Upon demurrer the court looks for the first defect in the pleadings.

This court does not award a procedendo when the judgment of the county court against the plaintiff for a defective declaration upon demurrer, is affirmed.  

COUNSEL:
John M. S. Causin, for the appellant.

1. The plea is contradictory, double, and uncertain. The same plea cannot present inconsistent defences, though different pleas may. 4 Term. Rep. 194.

In the commencement of the plea in this case the validity of the contract is admitted, and an excuse for its non-performance relied upon; whilst the conclusion avoids it altogether. 6 Com. Dig. 132.

This plea is so framed as to leave the court in doubt whether the defendants rely upon an excuse for their failure to perform the [**3]  contract; or whether they assail its validity altogether; and this uncertainty renders it bad on demurrer. 3 Durn. and East. 185. 1 Com. Dig. 141. 2 Johns. Cas. 312. A plea susceptible of two intendments shall be taken most strongly against the party pleading it. 1 Chitby's Pl. 463.

The averment that the day was a "Sabbath," does not necessarily mean that it was Sunday. The original and true meaning of Sabbath is a day of rest merely, and not a day consecrated to religious exercises.

2. A covenant will be enforced against its letter in obedience to its spirit. 1 Esp. 118.

If the contract in this case could not be performed on the day stipulated, it should have been performed on the day before or after; that is, Saturday or Monday. 2 Con. Rep. 69. And the defendant should have tendered the corn on one of those days; and his plea should have been shaped accordingly. Every circumstance constituting the excuse should have been averred. This plea merely excuses a literal, but not a substantial performance of the contract. The validity of the contract itself cannot be questioned, because it was not intended that it should be performed on Sunday. That was an event wholly unanticipated [**4]  by the parties, and cannot consequently impair their contract.

Under the act of 1823, the facts disclosed by the plea cannot destroy the obligation of the contract, though they may suspend the performance. 2 Con. Rep. 74, 75. 5 Bac. Abr. (Tender H. 2.) 8 Serg. and Low. 230. Chitty on Bills, 260. 4 East. 501. 5 East. 265.

Johnson, for the appellees.

The covenants of this contract are mutual, and neither can sue the other without performance, or excuse for the non-performance on his part; and the plaintiff by his pleadings must show such performance or excuse. Chitty Pl. 310, 375, 278, (New Ed.) In the present case the plaintiff does not aver a performance, or readiness to perform, according to the legal effect of the contract, but according to its express stipulations; that is, on the very day mentioned in the contract. The question then is, does the declaration allege such a readiness to perform as the law will sanction and recognize; for if it does not, the result is the same, as if such averment had been wholly omitted; and then, undoubtedly, it would be bad on demurrer. 6 Harr. and Johns. 401. It was incumbent on the plaintiff to aver in his declaration a readiness [**5]  to perform his contract, either on the day preceding, or succeeding that named; and also, why he was not ready to perform on the day stipulated, and in the absence of such averments he cannot recover.

The plea has been charged with duplicity, and with having an improper conclusion; but if this be so, it can only be reached by a special demurrer. When a plea contains matter in bar, the court will give the proper judgment without regard to the conclusion.

In this case, there is no averment in the declaration of a readiness to perform, according to the tenor and effect of the contract; which distinguishes it from the case referred to in Serg. and Low., where the averment was of a presentation, according to the tenor and effect of the bill; and besides, this being an action or a covenant, an averment of performance or an excuse was indispensable.

McMahon, in reply.

The covenants are distinct and independent, and not concurrent, and consequently performance or excuse need not be averred. Arch. Pl. 100. 10 Johns. 90.

The breach assigned in the declaration, is a breach of the entire contract, including time and place; and the plea only responds as to time, and is [**6]  therefore no answer to the declaration. Under the breach as assigned, the plaintiff might have recovered by showing a readiness to perform on a different day, from the day mentioned in the declaration; there being no distinction in regard to time, between a sealed and an unsealed contract. In declaring on either, when the allegation is under a scilicet, the party is not bound to prove the averment strictly, if there are other words from which a different allegation may be inferred. In such case the court will assign the time, according to the legal effect of the contract. 8 Serg. and Low. 230. Chitty on Bills, 246, 360. The parties to this contract live in St. Mary's county, while it was to have been performed in Baltimore; and there the plea should have shown the defendant to have been prepared to perform it on his part, and that he was prevented by the intervention of the Sabbath. The plea should have averred a readiness in Baltimore, at the time mentioned in the contract. This averment would certainly have been necessary, if the present defendants were plaintiffs suing for the purchase money, and there is no reason why the same strictness should not be required in a plea.

2.  [**7]  But the plea does not show that the day was the Sunday, or Lord's day, mentioned in the act of assembly, which being a penal act, must be rigidly construed.

The term Sabbath, does not necessarily, and ex vi termini, mean Sunday. It is a generic term, and means a day of rest, applicable to all nations, and every denomination of persons, Christians or Jews. It has no peculiar meaning, and would not be good in an indictment for violating the Sunday. If, however, the words Sabbath and Sunday have the same signification, still he insisted it meant the solar day, and the contract might have been performed before sunrise, or after sundown. 2 Con. Rep. 547. 2 Strange, 902. 3 Burr. 1595. 1 Taunt. 135. 10 Mass. 317. 13 Mass. 345. 8 Cowen, 67.

The true time for the performance of this contract was the Saturday preceding; but the plea by alleging a readiness to perform on Sunday, admits a want of readiness on Saturday. 4 East. 501. 5 East. 265.

A defective declaration may be aided by the admissions of the plea. Gold on Pl. 166.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J., and DORSEY, and CHAMBERS, J's.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*272]  CHAMBERS, J., delivered the opinion of the [**8]  court.
The demurrer obliges the court to look for the first defect in the pleadings, and we think it is to be found in the declaration.
By the letter of the contract, the first day of July was appointed for the delivery of the corn, but that day happening to fall on Sunday, and the law prohibiting the delivery on Sunday, although it does not annul the contract, 

 [*273]  it follows, that the execution of the contract was due on another day, and the delivery on that other day could be enforced. The failure to deliver on Sunday was no violation of the contract, according to its legal interpretation. There was no more obligation upon the party to execute the contract on Sunday, than there was on a day prior to the date of the contract. Let us suppose then, that the declaration had charged a breach of the contract, in the non-delivery of the article sold on some day prior to the date of the covenant, and confining the breach exclusively to such day; would it not be bad on demurrer, and why? Certainly it would, because the covenant of which profert is made, shews that the plaintiff had no claim to damages for the act complained of, that act not being at all in violation of the contract [**9]  set forth.
Now, this declaration claims damages expressly and exclusively for the non-delivery on Sunday.
There are no words that allege or import a failure to deliver on any other day, and this most important particular differs this case from that in 8 Serg. and Low. There the presentment of the bill was alleged to have been made, "according to the tenor and effect thereof," and the videlicet being struck out, there remained an averment of the fact. Here there is no averment of the non-delivery according to the tenor and effect of the contract, nor any other but specific averment of a non-delivery on the first day of July, which was on Sunday.
The covenant to pay the stipulated price is a mutual covenant, and it was therefore incumbent on the plaintiff, to aver in his declaration a readiness to pay at the time and place, when and where, by the legal construction of the contract the delivery was to be made. 1 Ch. Pl. 278. 1 East 203. West vs. Emmons, 5 Johns. 179. Porter vs. Rose, 12 Johns. 209.
The allegation of readiness to pay, is made solely in reference to Sunday, and the same remarks precisely apply 

 [*274]  to this necessary [**10]  averment, as we have before made in respect to the assignment of the breach.
The efforts of the counsel to escape from these obvious difficulties, by taking a distinction between the "Sabbath" (as the day is described in the plea) and the "Lord's day," as mentioned in the act of Assembly, or "Sunday," cannot avail. The Sabbath is emphatically the day of rest, and the day of rest here is the "Lord's day" or christian's Sunday. Ours is a christian community, and a day set apart as the day of rest, is the day consecrated by the resurrection of our Saviour, and embraces the twenty-four hours next ensuing the midnight of Saturday. But without relying on the plea for the appropriate appellation of the day, or for any other aid, we think there is no difficulty, and the defendant might safely have demurred according to the doctrine of the case of Hoyle vs. Ld. Cornwallis, reported at large in Strange 387, and the authority of which has never been disturbed we believe by any later decision.
That case recognizes it as the duty of the court, to notice the days of the week on which particular days of the month fall.
We have found much difficulty in determining whether the legal [**11]  effect of the contract required its execution on Saturday or Monday. We have no statute or Maryland decision to guide us, and in the case in 2 Con. Rep. the only one produced, we find a great diversity of opinion amongst the judges. In the commercial community, as is admitted in the argument, the usage is established. In bank transactions, drafts, bills of exchange, and negotiable paper, amongst mercantile men, the pecuniary engagements becoming due on Sunday, according to the letter of the agreements, are discharged on the previous Saturday, and we think, that both analogy and convenience will be consulted, by deciding that the same rule shall govern other cases.
JUDGMENT AFFIRMED.
The appellant's counsel afterwards, at the same term, moved the court for a procedendo, but the motion was overruled.  

17 of 41 DOCUMENTS 

DANIEL L. THOMAS' ADMINISTRATORS vs. B. J. VONKAPFF'S EXECUTORS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 372; 1834 Md. LEXIS 34 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the equity side of Baltimore county court.

The appellees on the 30th of November, 1831, exhibited their bill in Baltimore county court, against the appellants, praying that the sum of $ 10,000, which had been deposited by the intestate of the appellants, in the Maryland Savings Institution, might be paid to them. The bill alleged, that the plaintiffs' testator, had loaned to the defendants' intestate the sum of $ 20,000, and as a security for the repayment of the same, with interest, the latter had executed to the former a mortgage dated July 6th, 1827, on a certain lot and improvements in the city of Baltimore. That the mortgage contained a covenant, that the mortgagor, or his representatives, would at all times, during the continuance of the lien, procure the insurance against loss by fire, then effected on said improvements, &c., to the amount of $ 19,000, to be renewed, and that in case of loss, the sum insured should be immediately applied to rebuilding the premises, &c. That in the winter of 1830, the most valuable of the improvements on said lot were destroyed by fire, at which time the insurance amounted to $ 10,000, and that the same was subsequently paid [**2]  by the insurance office, to the mortgagor. That the said mortgagor deposited the money in the Maryland Savings Institution, until he could decide whether he would apply it to rebuilding the premises, or to the extinguishment in part of the mortgage debt, and that it remained on deposit until the period of his death. That after ascertaining that the administrators of the mortgagor were unwilling to apply this money to the extinguishment of the mortgage, the complainants filed a bill, and obtained a decree for the sale of the premises, which, owing to the injury done to them by the fire, produced the net sum of but $ 8,225 69, so that the aforesaid $ 10,000 will not satisfy the residue of the mortgage debt.

The answer, after admitting the allegations of the bill, presented to the court the question, whether the complainants in virtue of the mortgage, held a specific lien on the fund in question, or whether the same should not be distributed equally among the creditors of the mortgagor, who the defendants alleged, died insolvent.

Among the exhibits filed by the complainants, was the following paper signed by Thomas, addressed to and left with the treasurer of the Maryland Savings [**3]  Institution, at the time of making the deposit.

"April 27th, 1830, I wish to deposit in the Maryland Savings Institution, a check of the Firemen's Insurance Company, for $ 10,000, and to receive for this sum, a certificate bearing interest at four per cent. It is my intention, this sum should remain in your institution until I can decide upon whether I shall have to use it for the rebuilding of my sugar refinery establishment, or have to transfer the same to the executors of the estate of B. J. Vonkapff, for the payment of a mortgage held by this estate on my property."

The convenants in this deed, to insure, and to rebuild, in case of loss, are recited by the learned judge who delivered the opinion of this court.

The county court (HANSON, A. J.) decreed that the complainants had a specific lien on the money so deposited in the Savings Institution, and that the same, with interest, at the rate of four per cent., be brought into court, to be applied to the payment of the balance of their claim.

From this decree, the defendants prosecuted the present appeal.  

DISPOSITION:
DECREEE AFFIRMED WITH COSTS.  

HEADNOTES:

In a mortgage of real property given to secure the repayment of $ 20,000, borrowed money, T, the mortgagor, covenanted that he would at all times, during the existence of the lien hereby created, at his own proper cost and charge, cause and procure, the insurance against loss by fire already effected on the mortgaged premises to amount of $ 19,000, to be kept up and renewed; and that in case of loss, the sum insured shall be immediately applied to rebuilding, replacing and putting the said property and premises in the like good order and condition that the same now are in, so that the said V, (the mortgagee) his heirs, &c. shall in case of loss by fire be benefitted by such insurance, or participate in the benefit thereof, to the extent of his aforesaid lien."--Upon the construction of this contract, IT WAS HELD,

1. That the parties evidently looked to the estate mortgaged, if it remained without deterioration, as sufficient to satisfy the debt which it was taken to secure.

2. That the design of this covenant was by the insurance, always to have a fund for re-establishing the premises, so that the security should not be in any manner diminished.

3. The insurance was one for the benefit of the mortgagee, to the extent of his lien. He was not entitled to the money, but to have it applied to the rebuilding of the premises in the like good order in which they were at the time of the contract, and such an application of the money would be coerced in equity, which would consider the mortgagor, if he received the insurance money, as a trustee for that object.

4. That as the mortgaged property was clothed with a trust in reference to this fund, the legal representatives of the mortgagor must also take it subject to the trust.

Where property was mortgaged to secure a certain sum of money, and afterwards the improvements on it being destroyed by fire, was sold and did not pay the mortgaged debt; and the mortgagee then applied to a court of equity to enforce a covenant in the mortgage to keep the property insured, and apply the proceeds of the policy to rebuilding it, claiming under that covenant, a lien upon the insurance money, and payment of the balance due him out of it--HELD, that although equity could not administer the relief in the terms stipulated for, as the property was sold, and rendered rebuilding by the mortgagor or his representatives impossible, yet still the creditor was entitled to be paid out of this fund, over which he had a qualified lien, in preference to the general creditors of the debtor or his representatives.

Covenants to repair and rebuild on the land, are covenants running with the land; and so is a covenant to effect insurance and apply the proceeds in case of loss by fire, to the reparation of the insured property.

When a party is entitled to relief in equity, but from some cause it cannot be obtained in the mode stipulated for between the parties, chancery will still grant relief, though in some other form than the one agreed upon.  

COUNSEL:
Johnson, for the appellants.

1. The appellees had no specific lien [**4]  on the fund, and as the appellants' intestate died insolvent, it should have been equally distributed among his creditors. A covenant to pay in a mortgage is collateral, and does not run with the land. 8 Taunt. 227. 1 Cov. Powel, 61, (note E.) Sugden 477, 481.

2. The mortgage itself, with the paper deposited with the Savings Institution, did not amount to a lien on the fund. If a mortgagor in his life-time, sets apart a certain sum for the payment of the mortgage debt, that does not amount to a specific appropriation of the money, so set apart for that purpose. The object of the covenant in the mortgage, was to provide for the rebuilding of the premises, and not for the payment of the debt, and therefore, when Thomas received the money from the Insurance Company, the mortgagee could not have recovered it from him. 2 Durnf. and East. 211. If the mortgagor had rebuilt with other funds, this fund would have been his, as his personal right. It does not appear but that the $ 10,000 was more than adequate to to restore the property to its former state, which is every thing the mortgagee had a right to ask; nor is there any evidence, that Thomas was in his life-time called on to rebuild.  [**5]  If the mortgage per se, constituted a lien on the fund, then the mortgagee would be entitled to it, though the mortgagor should rebuild. Suppose, notwithstanding the injury, the property had been sufficient to pay the debt, will it be pretended that the mortgagee could have insisted on the application of this money for that purpose. The policy therefore, cannot be regarded as a substitute for the property, or in other words, the insurance money is not the primary fund for the payment of the debt.

The mortgage then did not create a lien, nor did the memorandum signed by Thomas when he made the deposite; as notwithstanding the memorandum, the bank could pay the money to no one but himself. There was nothing in the declaration accompanying the deposite which made it the duty of the bank to see to the application of the money.

McMahon, for the appellees.

1. The mortgaged premises having been sold, the money cannot be applied to rebuilding them, and the question therefore is, how shall it be applied. The mortgagee has the same right to the insurance money as he would have to the premises themselves. He is the legal owner of the premises, and every thing which attaches to [**6]  them, and enhances their value, also belongs to him, though acquired subsequently to the mortgage. 1 Powel on Mortg. 189, (note 2.) The mortgagor may insure to the full value of the property, as in equity, he is considered the owner, subject to the charge. His right to insure depends upon his interest, which being subject to the charge of the mortgagee, the proceeds of the policy should be applied to the payment of the charge. The money must be applied, as the estate is to go. 2 Madd. Rep. 481, 482, 486.

2. The covenant to insure, makes it the duty of the mortgagor to do so, for the benefit of the mortgagee, as an additional security for his debt. Such a covenant would hardly be required by the mortgagee, if the mortgagor is to have the benefit of it. It could not be to create a personal responsibility on the part of the mortgagor, as that responsibility exists independently of any such covenant. A court of equity will not relieve against the consequences of the non-performance of a covenant to insure, though a forfeiture results. 19 Ves. 133, 143. 2 Merrivale, 459. 4 Campb. 177. A covenant to insure does run with the land. 7 Serg. and Low. 1. Cov. Powel, 187.

3. But at all [**7]  events, the covenant to rebuild, gives the mortgagee a clear right to the fund, if from the default of the mortgagor, he cannot comply with his covenant. Such a covenant creates a lien, and follows the fund in the hands of the assignees. 2 Durnf. and East. 206, 211. 2 Merrivale, 511. It is in a court of Chancery, an appropriation of the money to the use of the mortgagee.

4. But if not an actual appropriation, it is an agreement to appropriate, and that in Chancery creates a trust for the benefit of the mortgagee, as against the mortgagor, and all claiming under him. 1 Ves. Jr. 477. 3 Ves. 58. 2 Desauss, 552. 3 Powel on Mortg. 1000, 1449. 2 Ib. 434.

5. When the money was deposited in the bank, it was dedicated by the mortgagor, either to rebuild the premises, or to the satisfaction of the mortgage debt; and as it cannot now be applied to the former object, because of the mortgagor's default, in suffering the property to be sold, it follows that it must be applied to the payment of the mortgage. 2 Durnf. and East. 210.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*377]  ARCHER, J., delivered the opinion of the [**8]  court.
The answer admits that the buildings on the premises insured, were burned down, whereby the security of the mortgage was impaired; and that the sum of $ 12,000 remained due on the mortgage after the application to its discharge of the proceeds of the sale of the mortgaged premises. It is also admitted, that a decree in equity has been 

 [*378]  passed for the sale of the mortgaged premises, and that they have in pursuance of said decree been sold, and that the proceeds of the sale have been applied towards the payment of the mortgage.
From this statement of facts it will appear, that the power of Thomas, or his legal representatives, to comply with the covenant, by rebuilding, is gone; the right to the property having passed from them. Upon these admitted facts, it would seem only to be necessary to recite the covenant contained in the mortgage deed from Thomas to the defendants to decide the question. That covenant is as follows.
"That the said Daniel Thomas, his heirs, executors, and administrators, shall and will at all times during the existence of the lien hereby created, at his and their own proper cost and charge, cause and procure the insurance against [**9]  loss by fire already effected on the buildings, improvements and fixtures and utensils aforesaid, to amount of $ 19,000, to be kept up, continued, and renewed; and that in case of loss, the sum insured shall be immediately applied to the rebuilding, replacing, and putting the said property and premises in the like good order and condition, that the same now are in, so that the said Bernard J. Vonkapff, his heirs, executors, administrators, or assigns, shall in case of loss by fire, be benefitted by such insurance, or participate in the benefit thereof, to the extent of his aforesaid lien."
The parties evidently looked to the mortgaged estate, if it remained without deterioration, as sufficient to satisfy the debt, which it was taken to secure. It is under this belief the above covenant is entered into. It was foreseen that the security might be lessened by the calamity which actually befell it, and the design of the covenant was, by the insurance, always to have a fund for re-establishing the premises; so that the security should not be in any manner diminished; for they stipulate in case of loss by fire, that the sum insured shall immediately be applied to the rebuilding, replacing, [**10]  and refitting the property, in the like good order, 

 [*379]  that the same was in at that time; so that in case of loss by fire, the mortgagee might be benefitted by such insurance, or participate in the benefit thereof to the extent of his lien.
The insurance, then, according to the express agreement of the parties, was one for the benefit of Vonkapff, to the extent of his lien. He was not, it is true, entitled to the money, but he was entitled to have it applied to the rebuilding of the premises, in the like good order which they were at the time of the contract, and it cannot be questioned but that such an application of it might have been coerced. When the mortgagor received the insurance money, a court of equity would have considered him in the light of a trustee of the fund, and would have caused the whole of it, or such parts thereof as might be necessary, to restore the premises to their former situation to be expended in rebuilding. The mortgagee had undoubted rights in the fund thus arising, which could not be over-reached by Thomas or his creditors, and if the property was thus clothed with a trust, his legal representatives must also take it subject to the same [**11]  trust.
This being so, and the restoration of the buildings by Thomas, or his representatives, having become impracticable; the estate having passed from them, the question to be determined is, to whom the fund arising from the insurance belongs?
Equity cannot administer relief in the terms stipulated for; that has become impossible. But shall it therefore be said, that although the insurance was taken for the benefit of the mortgagee, it shall go into the mass of the mortgagor's estate, and be distributed to his creditors generally? This would be doing great injustice to the mortgagee, who would thus be stripped of all advantages and priorities which he would otherwise have had by the contract; and the insurance money, instead of being applied in conformity with the contract, to make good the lien, would in opposition to the agreement of the parties, be a fund for the benefit of Thomas 

 [*380]  and his representatives, instead of being for the benefit of the mortgagee.
The whole insurance money, added to the sale of the mortgaged premises, it appears, is not sufficient to extinguish the mortgage, or in the language of the contract, if allowed to take the whole, he will [**12]  not "be benefitted to the extent of his lien." His lien will not be satisfied.
If therefore the fund of $ 10,000 had according to contract been expended on the premises, it would not have placed them in the same condition they were at the time of that mortgage; for the parties then considered the premises to be worth $ 20,000. And if the whole extent of the insurance money would not have reinstated the premises, and Thomas was bound to lay it out for the mortgagee's benefit, and that has become impracticable, would that not be an obvious equity, which would give him the right to the money itself, which was to be expended manifestly for his benefit solely.
If indeed, the expenditure of this amount, thus recovered, upon the premises, would have enhanced their value beyond the lien, then to the extent of such enhancement, the fund would be for the benefit of Thomas' representatives. And if such had appeared to have been the case, we should have considered the mortgagee as only entitled to such sum as would have brought up his security to its former standard; or in other words, only to such portion of the insurance fund, as would have satisfied his lien; the rest would have belonged [**13]  to Thomas' representatives.
But we will examine this question in another view, which will be found to be equally conclusive of the rights of the parties.
The mortgagor as between him and the mortgagee, had in virtue of the covenant to keep up the insurance, a qualified lien on the amount of the insurance: that is, he had a right which attached itself to the fund, not a right to be sure, which could divest the mortgagor of its possession, but a right, which would cling to the fund until it was expended 

 [*381]  for his benefit,) to the extent of his lien under the mortgage. The mortgagor in his life-time could never have diverted this fund from its destined object. It would pass to his administrators, clogged with the same qualified equitable lien, with which it was encompassed in the mortgagor's life-time. If indeed this fund had been passed over by the mortgagor, for a valuable consideration without notice, to a third person, such third person's right would prevail, because he would have an equity also; and having the possession, he would be protected therein. For as the court of King's Bench say, in 2 T. R. 210, the title of him who hath both a fair possession, and [**14]  an equitable title, shall be preferred to that of a mere equitable interest. But here, the administrators have a mere naked legal right, subject to the mortgagee's equity. That the administrators represent the creditors, cannot change the character of this equity of the mortgagee, or weaken its efficacy. The particular creditor, and the general creditor, stand in different attitudes. The former never trusted to the personal credit of the mortgagor, but trusted and looked to this particular fund, to satisfy his debt or give him security for it. The general creditors trusted to a personal credit alone. What has produced this fund? The advance of money upon its faith. Now if it be abstracted to the extent of the money advanced, the general creditors can have no right to complain, for their debtor is precisely in the same situation as if the money had never been advanced, and consequently the insurance effected. But again, the covenant is expressly for the benefit of the particular creditor, not for the benefit of the general creditors, and if they participate in it, they get that which they never could have looked to, and the extent to which they derive advantage from it, to the same [**15]  extent, do they take from that creditor who looked exclusively to it. In this aspect of the case, there is another view against the pretensions of the general creditors. That this is a covenant running with the land, can, we think, scarcely be doubted. The covenants to 

 [*382]  repair and rebuild are admittedly so. And what is this, but in effect a modified covenant to repair and rebuild? The insurance is to be kept up, so that in case of loss by fire, the sum insured shall be immediately applied to rebuilding the property on the premises. Being of this character, it would run with the land, just as would an ordinary and absolute covenant to repair or rebuild; and running with the land, the record of the mortgage would be notice to all the general creditors, and they would, therefore, have no just pretensions to participate in the fund, to the prejudice of the particular creditor.
We have said that although a lien existed, it gave no right to the possession of the fund, as against Thomas; the design being to apply it for the purpose of reinstating the premises. But the facts show that the lien cannot in the terms of the contract be specifically enforced, owing to the sale of [**16]  the mortgaged premises. A court of equity, however, is not on this account powerless. It must administer relief, in the only manner in which it can now be done. As the leading object in effecting the insurance, was exclusively a beneficial one to the mortgagee, its great spirit and object will be effectuated by decreeing him the fund. The mode only, of giving relief, will be changed, and that has become inevitable.
We have not considered it necessary to express any opinion on the legal effect of the declaration of Thomas accompanying the deposit of the money, as the cause is settled by the above considerations.
DECREEE AFFIRMED WITH COSTS.  

18 of 41 DOCUMENTS 

THE UNION BANK OF MARYLAND, vs. DEBORAH COCHRAN, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 138; 1835 Md. LEXIS 12 

June, 1835, Decided 

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

On the 18th of March 1820, a bill was filed on the equity side of Baltimore County court, by a creditor of the late firm of Cochran & Comegys, consisting of William Cochran, and John G. Comegys, for the sale of the real estate of the former, then deceased, upon the allegation, that the assets of the partnership, in the hands of the surviving partner, were inadequate to pay the partnership debts.

Upon this bill, the real estate of Cochran was ordered to be sold. A sale was accordingly made, and the proceeds brought into court for distribution among those who might be entitled.

The case was then referred to the auditor of Baltimore County court, who stated an account, from which the claim of the appellant was rejected, upon the ground, as stated by that officer, that the fund would not give to the remaining creditors, a dividend equal to that which had been received by the bank. The payments so received by the bank, consisted of cash on deposit to the credit of Cochran & Comegys, on the 21st of March 1820, and the sum of $ 1060, which appeared to have been paid 22d September 1820, by one of the executors of Comegys, the surviving partner,  [**2]  (who died pending the suit) out of the proceeds of certain real estate, his individual property, which had been pledged by him for that purpose. These two sums, the cash on deposit, and the payment by Comegys' executor, the bank applied to the satisfaction pro tanto, of its claim; which was founded on a judgment against the survivor of the firm, rendered upon promissory notes discounted by the bank, for the accommodation of the partners.

Before the final action of Baltimore County court, upon this report of the auditor, the case was transferred to the court of Chancery, upon the suggestion of the appellant.

Afterwards, on the 6th of February 1832, the case having been submitted to Bland, Chancellor, on notes by the solicitors, by his order of that day, the objections of the auditor to the allowance of the claim of the appellant were sustained, and the case referred to the auditor of the court of Chancery, with directions to state an account accordingly.

In obedience to this order, the auditor stated an account, excluding the appellant's claim, and dividing the fund for distribution, among the other creditors of Cochran & Comegys.

The exceptions of the bank to this [**3]  account, were afterwards, on the 12th of November 1833, overruled by the Chancellor; the account ratified; and the trustees directed to apply the fund accordingly. From this decree, the bank prosecuted an appeal to the Court of Appeals.  

DISPOSITION:
Decree reversed with costs to the appellant.  

HEADNOTES:

The notes of A & Co. were discounted at the Union Bank, for the accommodation of B and C, the endorsers. The real estate of B, one of the partners, was sold after his death by decree of Chancery, upon the ground, that the partnership property was insufficient to pay the partnership debts. The bank retained in part payment of her claim, a sum of money standing on her books, to the credit of B and C in account; she received also another sum from the executors of C, arising from the proceeds of land which he had pledged for B and C's debt; and another sum from A & Co, and she claimed a dividend upon the balance of her debt out of the proceeds of B's real property rateably, with other creditors. HELD, that in striking a dividend, it was error in the court of Chancery to consider the payments retained by, or made to the bank, (as from the assets of B's estate,) or to exclude her upon the ground, that those sums amounted to more than a dividend upon B's real assets.

Where the legal sufficiency of the evidence of a claim of a creditor, filed with the auditor for the purpose of procuring a dividend out of the proceeds of real estate, sold for payment of debts, was not excepted to in the court of Chancery, that question will not be examined upon appeal.  

COUNSEL:
JOHNSON and KENNEDY, for the appellants, contended,

1. That in equity, the bank was entitled to prove her debt against the partnership, as it existed, when the private estate of William Cochran was rendered subject to the partnership creditors, and that as no objection was made in the court of Chancery, by the auditor, or any of the parties, to the sufficiency of the proof of the claim, it is to be regarded in this court as fully proved. Maccubbin vs. Cromwell, 2 Harr. and Gill 458. If the proof of the claim was intended to be questioned, it should have been objected to by an exception. Act 1825, ch. 117, sec. 3; 1832, ch. 302, sec. 5.

2. The payments made to the bank, were not derived from the assets for distribution. They did not diminish those assets, and of course, could not affect the distributive shares of the other creditors. They were derived from sources not accessible to the other [**4]  creditors, and by diminishing the appellants claim, and consequently her share of the fund for distribution, operates to their benefit, rather than injury. These sums therefore, are to be regarded as payments, and not as dividends out of the assets for distribution. Ex parte D'Oliviera, 8 Ves. 84. Ex parte Bennett, 2 Atk. 526. McDermutt vs. Strong, 4 Johns. Ch. R. 691.

JOHN SCOTT for the appellees, insisted,

1. That the legal, as well as the equitable rule is, that when an estate is insolvent, the assets shall be distributed pro rata amongst the creditors of equal degree, and that the appellants claim is of no higher dignity, in consequence of their judgment against the surviving partner. They are still only on a footing with the other creditors, in reference to the partnership effects, or the assets of the private estate of Cochran. Ward vs. Howell, et al, 5 H. and J. 60.

2. The principle is also well established, that whenever there has been a distribution of a fund, in which a party had an interest, but in which he had not participated, that in the distribution of a second fund, of the same character; he who was excluded from the first distribution, shall be compensated [**5]  out of the second, and this principle is applicable to the present case. Cases, Tem. Talb. 220. Wilder vs. Keeler, 3 Paige 167.

3. The bank having from other funds applicable to the partnership engagements, received more than her full dividend of the whole assets, is not, upon the principle above stated, entitled to participate in this fund.

4. There is no evidence of any claim, on the part of the bank, against the estate of William Cochran.  

JUDGES:
The cause was argued before STEPHEN, ARCHER, DORSEY, and CHAMBERS, Judges.  

OPINIONBY:
STEPHEN 

OPINION:

 [*141]  STEPHEN, Judge delivered the opinion of the court.
In this case, upon the petition of a creditor of the firm of Cochran & Comegys, the real estate of William Cochran, one of the partners, was sold after his death, upon the ground 

 [*142]  charged in the bill, that the partnership property was insufficient to pay the partnership debts. The Union Bank of Maryland, was a creditor of the firm, upon judgment obtained against Comegys the surviving partner, to the amount of $ 22,500. The debt was originally due upon sundry promissory notes drawn by Comegys, Falconer and Company, for the accommodation of Cochran  [**6]   & Comegys, and discounted by said bank. Before the distribution of the fund raised by the sale of the real estate, the Union Bank of Maryland exhibited a short copy of their judgment, claiming a dividend of the proceeds of sale. The auditor rejected the claim, upon the ground, that the Union Bank of Maryland, as a creditor of Cochran & Comegys, had already received out of the assets, dividends to a larger amount than her due proportion. To this report of the auditor, disallowing her claim to a dividend, the bank excepted. The Chancellor passed an order overruling the exceptions, from which an appeal has been taken to this court.
This court are of opinion, that there is error in the decision of the court below, rejecting the claim of the bank to a dividend.
Several of the items contained in the account of payments exhibited by the bank, to the auditor, and which were considered by him as dividends, were not, we think, of that character. They were manifestly payments made, not out of the assets, because the face of the accounts shew, that they were derived from other sources. The sum of $ 3877,44, with interest, standing to the credit of Cochran & Comegys in bank,  [**7]  we think the bank had a right to retain in part payment of her claim; because if suit had been instituted for the recovery of that sum, the bank could have successfully resisted the recovery of it, upon the ground of a right of retainer, she being at the time a creditor of Cochran & Comegys to a larger amount.
The sum of $ 1060, appears to have been paid, by one of the executors of John G. Comegys, and is stated in the account of the bank, (which not being excepted to is evidence) as 

 [*143]  being the proceeds of sale of a lot of ground of said Comegys, and which was appropriated, or pledged by him to the payment of the bank's claim in his life time. The sum of $ 3500 was paid by Cornelius Comegys & Company, the drawers of the note, according to their contract with the bank, and of course, cannot be considered, as a dividend of the assets of Cochran & Comegys.
We consider, that there was sufficient evidence of the claim of the bank before the auditor, the same not being excepted to, or put in issue. The right of the bank to a dividend, was alone contested, not the legal sufficiency of the evidence to prove her demand.
We are therefore of opinion, that the [**8]  order of the Chancellor, overruling the exceptions of the Union Bank to the auditors report, and confirming the same, was erroneous, and ought to be reversed.
The decree was accordingly reversed with costs to the appellant in both courts, and the case referred to the auditor of the court of Chancery, with directions to state an account, in conformity with this opinion, which account, was subsequently ratified and confirmed by this court.  

19 of 41 DOCUMENTS 

JOHN ANDERSON vs. NEGRO JULIA ANN BAILY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 32; 1836 Md. LEXIS 2 

June, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore city court.

The appellee petitioned for her freedom on the 1st of June, 1833, and after an appearance, and denial of her right by the appellant, the case was submitted to the court below, upon the following statement of facts:

"It is admitted that Gideon Longfellow, of Kent county, was heretofore the legal owner of a female slave named Lucy, and on the second day of December, 1803, executed in due form of law, the following deed of manumission, which was duly recorded in Kent county court.

"Maryland.--Kent county, to wit: To all whom it may concern, be it known, that I, Gideon Longfellow, of the county and state aforesaid, for divers good causes and considerations, me thereunto moving, do hereby release from slavery, manumit, and set free, my negro girl named Lucy, being of the age of eleven years or thereabouts, when she shall arrive at the age of thirty years; and in case the said negro girl Lucy shall, or may hereafter have a child or children, before she arrives at the age aforesaid, that then, such child or children, shall be free at their birth.

"I do hereby acknowledge the said negro girl Lucy, discharged from all claim of service and [**2]  right of property, whatever from me, my heirs, executors, or administrators, from and after she arrives at the age aforesaid. In testimony, &c."

It was further admitted, that said Longfellow, shortly after the execution and recording of said manumission sold, or otherwise disposed of his right in said Lucy, to one Henry Taylor, of the same county, in whose family, she remained until her arrival to the age of thirty, when she became free, and with the consent of said family removed to the city of Baltimore, where she has continued to reside ever since. It was further admitted, that the petitioner is the child of the said Lucy, named in the manumission, and was born after the execution thereof, but before her mother became entitled to her freedom, and is now nineteen years of age. That said Lucy, survived the said Taylor, and the time she had to serve was appraised in his estate. That about two years before his death said Taylor, gave the petitioner then a small child to his daughter, the wife of the defendant, who took her into possession, and held her until after her father's death, when the family supposing to be free under the said manumission, suffered her to depart from their [**3]  service, and come to Baltimore, to reside, and where she has continued to reside for about ten years last past, enjoying her freedom, without any claim being made to her as a slave, until arrest by said Anderson, which occasioned the filing this petition.

That the said Lucy, during the time of her servitude with Taylor, had three other daughters Eliza, Jane, and Hannah, and that neither they, or the petitioner were appraised as part of his estate.

Upon the statement of facts, the City court, gave judgment for the petitioner, and from that judgment the defendant appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

L, the owner of a female slave, declared by deed of manumission duly executed and recorded in 1803, that she should be free, at thirty years of age, "and in case the said negro girl, may hereafter, have a child or children before she arrives at the age of thirty, that then such child or children shall be free, at their birth." Held, that under the act of 1796, ch. 67, sec. 13, the children of the said female slave, at their birth, not being able to work and gain a sufficient maintenance, could not be liberated.  

JUDGES:
The case was submitted to BUCHANAN, Ch. J. and STEPHEN, ARCHER, DORSEY, and CHAMBERS, Judges.  

OPINIONBY:
ARCHER 

OPINION:

 [*34]  ARCHER, Judge, delivered the opinion of the court.
The case of Hamilton and Cragg, 6 Har. and Johns. 16, is decisive of this cause. This court there determined, that the provisions of the act of 1796, ch. 67, sec. 13, applied to the will then under consideration, and that the petitioner in that case was not entitled to freedom. Rachel Turner, made her will in 1801, containing the following clause, "I [**4]  give and bequeath to my loving sister, Sarah Turner, five negroes by name, Frank, Joe, Tille, Mill, and Linn, to possess and enjoy during her natural life, them and their increase, and my will is, that after my sister's death, the above named negroes be free."
The petitioner was the son of Mill, and was born after the death of Rachel Turner, and at the death of the legatee for life, he was about two years of age. The court in delivering their opinion say, that the issue of the negroes named, one of whom was the petitioner, though unborn at the time of the will, were equally objects of the testatrix's benevolence, with the negroes themselves, and were entitled to their freedom, if they were in a predicament to receive it. They then proceed to adjudge, that he was not entitled to freedom under the act of 1796, because he was not when his freedom was to commence, able to work, and gain a sufficient maintenance.
It thus appears, that although the testator intended to give freedom to the issue, yet that such freedom was entirely dependant upon the "issue's" ability to gain a sufficient maintenance. So in this case the intention is express, to liberate the issue [**5]  at its birth, but the intention cannot be legally perfected, for at the moment of time, when the freedom is to operate, the petitioner was incompetent to take it; that is, she was unable to gain a sufficient maintenance. It certainly can make no difference, that by the deed, the issue is to be free at its birth, at two years old, on a contingency; if when the contingency happens the issue is not able to work and 

 [*35]  gain a maintenance; because in each case, there is a legal incapacity for freedom.
That in the two latter cases the issue was born a slave, according to the intention of the manumittor, and that in the former at its birth, so far as intention would affectuate any thing, he was free, could not furnish the basis for a different adjudication in the two cases; because the law of 1796, applies at the moment of birth, so that the intention cannot be carried into effect against the statutory disability.
If the statement had concluded with submitting the facts of this case to the judgment of the court, we should have adjudged the petitioner to be a slave; but it submits nothing to the court, and we shall award a procedendo.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  [**6]  

20 of 41 DOCUMENTS 

MARY E. BERRETT, vs. ROBERT OLIVER, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 191; 1835 Md. LEXIS 17 

December, 1835, Decided 

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

The appellant on the 28th of November 1832, filed a bill in the court of Chancery, against the appellee Oliver, the heirs of Joseph S. Berrett, and the heirs of one James Inloes, praying that certain deeds, and a decree of the court of Chancery, might be vacated and annulled.

It charged, that the complainant before her intermarriage with Joseph S. Berrett, (now deceased) was seized and possessed in her own right, of a valuable real and personal estate, under the will of her father. That being so entitled, she on the 9th of March 1809, before her marriage, and in contemplation thereof, together with her intended husband, conveyed her aforesaid property to John Oliver, in trust for her sole and separate use. That subsequently to the marriage, doubts being entertained as to the validity of this deed, in consequence of the minority at the time of its execution of both the grantors; the said Joseph S. Berrett on the 28th of March 1811, executed a second deed to Sarah C. O'Donnell, the mother of the complainant, settling the property embraced in the first deed, to the same uses, as it was by that deed intended to be conveyed to. That on the 17th of July 1813,  [**2]  the complainant, her husband, and Sarah C. O'Donnell united in a deed of the above property to James Inloes, in trust to secure to him the sum of $ 3000, paid by him to the complainant, and after accomplishing that object, to hold the residue of the estate, for her separate use, and subject to her sole, and separate control.

That on the 29th of May, 1815, the present complainant, her husband, and Inloes, filed a bill in the court of Chancery, against Sarah C. O'Donnell and John Oliver, upon which such proceedings were had, that on the same day a decree passed, by which the said deeds were vacated, and the property contained in them was vested in the said Inloes, in trust, to sell a portion thereof for certain specified purposes; and to hold the balance for the separate use of the complainant during her natural life, and after her death, for the use of her children as tenants in common. That, although the complainant was apprized of the filing of this bill, she was not aware of the purpose designed to be effected by it, or she would not have given it her sanction. That her object was simply to get authority for the sale of a part of the property, and that the residue should be [**3]  held by the trustee subject to her sole and separate use, absolutely, and for ever; and that it was not until the latter end of the year 1816, when the time limited, for reviewing decrees upon appeal had expired, that she discovered, that her absolute, and fee simple interest had been cut down to a mere estate for life. That immediately upon her ascertaining the effect of this decree, she petitioned the Legislature, who thereupon passed an act for her benefit, relieving her from its operation, so far as it was competent for that body to do so. The bill then asserts, that the decree cannot have the effect imputed to it, of reducing the complainant's interest from a fee simple, to a life estate, because the estate of a feme covert, can only in Maryland be affected, by a conveyance, with privy examination, in conformity with our acts of Assembly.

Prayer, that the Chancellor will review the decree, vacate that, and the three deeds; and that the property may be vested in the complainant in the same manner as if they had never existed, and for general relief.

After the defendants had answered the heirs of Berrett consenting to a decree, and the heirs of Inloes by their answers [**4]  had affirmed, that the property was held by their father, subject to his claim upon it for $ 3000, and that it is now liable for that claim; the complainant filed a supplemental bill, making the administrator of Inloes a party, and averring that the aforesaid debt, either never had existed, or had been paid and satisfied.

The administrator answered this bill, insisting that the property stood charged with the debt, and that the same is still due and unpaid.

Proof was taken on both sides, in reference to this debt, but it is omitted, as having no bearing upon the legal propositions decided by this court.

Before the cause was brought before his Honor the Chancellor, the defendants the heirs and administrator of Inloes, filed the following exception to the allegations in the bill, and the sufficiency, and admissibility of the plaintiff's evidence.

1. The allegations in the said bill, if they were proved, are not sufficient to entitle the complainant to a review and reversal, and modification of the decree, in the said bill complained of.

2. The testimony in the cause is not sufficient to prove the allegations in the bill, to entitle the complainant to a review [**5]  and reversal of said decree.

3. Upon the allegations in the bill, whether the decree is altered or not, the complainant is not to be relieved against these defendants, except upon the terms of paying the claim of said Inloes, as stated in the proceedings.

4. The allegations in the bill are not sufficient to show that said claim was not justly due and owing; nor is the evidence sufficient to show, that it is not still justly due and owing.

5. Assuming that said claim was at any time justly due, and was secured by the aforesaid decree, the allegations in said bill, are not sufficient (even if proved) to show, that said claim has been satisfied.

6. That upon the allegations in the bill, it is not competent for the complainant to offer any evidence to prove that said claim was not justly due at the date of said decree, or that said claim has been since satisfied.

7. That the evidence offered is not sufficient to prove, that said claim was not justly due, or that it has been satisfied.

8. That these defendants are entitled to retain their rights in the lands in the proceedings mentioned, until the claim of the said James Inloes deceased, as stated in the proceedings,  [**6]  is fully satisfied.

Upon these proceedings, the cause was argued before Bland, Chancellor, at December term 1833, who by his decree of that term dismissed the bill with costs, being of opinion, that there was no proof, that the decree of the 29th of May 1815, was obtained by mistake or fraud.

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

DISPOSITION:
DECREE AFFIRMED WITH COSTS IN BOTH COURTS.  

HEADNOTES:

M, on the 28th November 1832, filed a bill against O, the heirs of B, and the heirs of I, praying that certain deeds, and a decree of the court of Chancery might be vacated. It charged that M, before her marriage with B, was seized in her own right of a valuable estate, and in contemplation of marriage with B, in 1809 conveyed her property to O, in trust for her sole and separate use. That in 1811, doubts being entertained as to the validity of the deed of 1809, in consequence of M and B being both minors at the time of its execution, a second deed was executed, conveying the property to S in trust, to the same uses intended by the deed of 1809. That in 1813, M and B, and S, united in a deed of the property to I, to secure a sum lent by him to M, and to hold the residue of the estate for the sole and separate use and control of M. In 1815, M, B, and I filed a bill in Chancery against S and O, in which a decree was passed vacating the said deeds, and vesting the property in I, in trust, to sell a portion thereof for certain specified purposes, and to hold the balance for the separate use of M, during her natural life, and after her death for the use of her children (the heirs of B) as tenants in common. The complainant alleged in her present bill, that she was not aware of the purpose designed to be effected by the former decree--that she intended simply to get authority for a sale of a part of the property, and that the residue should be held subject to her sole use absolutely--that she did not discover the effect of the decree of 1815, until the latter end of the year 1816, when the time limited for reviewing decrees upon appeal had expired; that then she applied to the Legislature for relief, who thereupon passed an act (1816 ch. 157,) declaring that the said deeds and decree were null and void, so far as the same extended to vest the property of M in trust, and that all the estate which had not been sold, and then vested in trust, be vested in the said M, in the same manner and under the same conditions, and none other, that married women can, and do hold property in this State, of the same description, with a saving of the rights of other persons. The bill also alleged, that the rights of a feme covert, could only be concluded by a privy examination. The heirs of B consented to a decree, but those of I, claimed the property as a security for their father's debt. The administrator of I was then made a party, by supplemental bill averring satisfaction of this debt. He denied such payment. Before a final hearing in Chancery, the heirs of I filed exceptions to the allegations of the bill; to the sufficiency of the evidence; and also to the admissibility of evidence to prove that I's claim was not due at the date of the decree, or that it had been since satisfied. Held upon appeal;

1st. That if the bill in this cause had been unequivocal in its character, and distinctly disclosed the grounds on which its claim to relief was predicated, then according to the act of 1832, ch. 302, the sufficiency of the averments in the bill would be excluded from the consideration of the appellate court; but as it was peculiar in its structure, and so multifarious in its character, as to be viewed in a great variety of aspects, it was not practicable for the defendants to take more specific exceptions to its averments than they had done, and their sufficiency was still open to consideration.

2d. The act of 1832, ch. 302, does not require any exception to be filed, to the want or insufficiency of evidence in Chancery, but restrains parties in the appellate court from making objection to the competency of witnesses, or the admissibility of evidence, unless the point insisted on, was raised by exception in the court below.

3d. A general exception in Chancery to the competency or admissibility of evidence, will not avail upon appeal. The exceptions should be sufficiently definite to apprize the opposite party of the particular witnesses, or evidence, designed to be excepted to

4th. Where exception to averments in a bill are sufficiently specific, and point out the defect of the bill on a particular subject, the evidence taken in support of that part of the cause, (it being upon a distinct and independent matter) must be treated as evidence of a fact not in issue and rejected.

5th. A feme covert may create a lien in Equity upon her sole and separate estate in lands, without a privy examination.

6th. The settlement by decree of a married woman's estate to her separate use for life, with remainder to her children, is a strong circumstance to recommend it to the favour and protection of a court of Equity. It bears intrinsic evidence of its correctness, wisdom, and expediency, and conforms to that mode of settlement always made by the court, where its powers over the subject are brought into action, by the husband seeking through its aid, the recovery of the wife's property.

7th. The act of 1816, ch. 157, was not intended to authorize M to file a bill of review, for the purpose of reversing the decree referred to in it, nor the adoption of any judicial proceedings to try the validity of the deed and decrees mentioned in it. The Legislature intended to vacate and annul those deeds and decrees, and to re-invest the property, subject to certain exceptions, in the same manner as if they had never existed. And this act therefore, is so direct and obvious a violation of our declaration of rights, as an exercise of judicial authority, and of the 10th section of the Constitution of the United States, as impairing the obligation of contracts, that it is null and void.

8th. That if the act of 1816, ch. 157, could be regarded as operating only upon M's rights, so far as to give her a remedy by which the rights of the parties could be adjudicated upon, still her bill must be filed within nine months after the death of her husband, or if preferred by M and B should have been filed within nine months after its passage.

9th. It is the duty of a court of Equity, to see that the rights of infants are not prejudiced or abandoned by the answers of their guardians.

10th. Where a plaintiff shows upon the face of his bill that the court has no jurisdiction, it is immaterial whether the defendant relies upon the want of jurisdiction as a defence or not. It is matter of law which the court must judicially notice. It is not like the ordinary case of limitations, or presumptive bar from lapse of time; the determination of which may depend upon the proofs of the cause.  

COUNSEL:
TANEY, and G. H. STEWART, for the appellant contended.

1. That the decree of the 29th of May 1815, ought to have been set aside, so far as it proposes to restrict the interest of the complainant in the property therein mentioned to a mere life estate, because in that particular it was obtained by surprize upon her. 1 Chitty Dig. 461, 683. Ramsbottom vs. Gosden, 1 Ves. and B. 168. Bingham vs. Bingham, 1 Ves Sr. 126. Kidney vs. Cousmaker, 12 Ves. 136. Oldham vs Hughes, 2 Atk. 455. 1 Mad. Ch. 256. 1 Roper H. and W. 584. Wesley vs. Thomas, 6 H. and J. 24. 2 Chitty Dig 956. Dreury vs. Thacker, 3 Swanst. 534 (note.) Mitf. 139.

2. That in consequence of the coverture of the complainant at the time of the passage of said decree, the court of Chancery had no jurisdiction [**7]  to reduce her estate, and for that reason, and to remove the cloud from her title, this court will now interfere. Judicial power, cannot proprio vigore take property from one, and give it to another. There must be a contract. Evans vs. Cogan, 2 Pr. Wms. 451. Richards vs. Chambers, 10 Ves. 580. 3 Jac. and Walk. 665. 2 Chitty Dig. 773. Woollands vs. Crowcher, 12 Ves. 177. 1 Mad. Ch. 777. Sampeyreac and Stewart vs. United States, 7 Peters 238. Livingston vs. Story, 9 Peters 632.

3. That the act of 1816, ch. 157, has the effect of opening the decree of 1815, and in that respect at least, is the legitimate exercise of constitutional power. Garrettson vs. Cole, 1 Harr. and Johns. 391. Gover vs. Hall, 3 Harr. and Johns. 49. Sampeyreac and Stewart vs. United States, 7 Peters 238. Lessee of Livingston vs. Moore, et al, Ib. 546. And upon the proofs taken under the present proceeding, the Chancellor should have annulled the decree complained of.

4. That the heirs and representative of Inloes have no interest under that decree, and cannot therefore resist the application of the complainant to have it corrected, or annulled. Their interest, if they have any, is under the deed of 1813,  [**8]  which however gives them no lien; but if it did, the evidence abundantly shows it to have been discharged by payment.

5. It may be argued, that the bill does not seek to avoid the decree upon the ground of mistake, surprize, or fraud. This is not so in point of fact, the allegation being substantially made; but if it were not, the defendants are precluded from urging the objection by the act of 1832, ch. 302, which requires the objection to be pointed out in the court below by exception. Evans et al, vs. Iglehart et al, 6 Gill and Johns.

It is true exceptions were filed, but they are too vague, and indefinite. They should have designated the particular defect in the frame of the bill intended to be relied upon.

6. The present bill was filed in time. Limitations did not begin to run against the complainant, until after the death of her husband. If, however, that is not the case, and the statute is to be considered as commencing from the date of the decree of 1815, still the objection should have been taken by plea, or relied upon in the answer. McCormick vs. Gibson, 3 G. and J. 12. Deloraine vs. Browne, 3 Bro. Ch. C. 639. Lytton vs. Lytton, 4 Ib. 445.

7. The frame [**9]  of the bill is such as to entitle the complainant to relief in some form. It may be regarded as an original bill operating on another bill, or a bill of review to correct errors apparent on the face of the decree, which may be filed without leave. Mitford 122, 138, 139, &c. Or it may be treated as a supplemental, or amended bill, and in either view would accomplish the purpose intended. Mitf. 89, 114, 115.

ALEXANDER and JOHNSON for the appellees.

1. Treating the appellant's bill as an original bill, and she can have no relief against the decree of 1815, because she has neither alleged fraud, or any other circumstance in avoidance of it. Mitf. 139. Hollingshead's case, 1 Pr. Wms. 743.

2. Considered as a bill of review, the only matter alleged in impeachment of the decree, is the coverture of the appellant, and that is not sufficient, the court of Chancery having full power to bind the inheritance of a married woman, upon her application. Brundige et al, vs. Poor, et ux, 2 Gill and Johns. 1. Willis vs. Beale, Ib. 458. Lowry et ux, vs. Tiernan and Williamson, 2 H. and G. 34. Nor in this aspect can it affect the claim of Inloes, as that claim was not embraced in the former [**10]  decree, and upon a bill of review new matter cannot be introduced. Its only office, is to review the former decree, in reference to the subjects referred to in it. Burch et al, vs. Scott, 1 Gill and Johns. 423. 2 Ball and B. 154. Mellish vs. Williams, 1 Vernon 166. Perry vs. Phelps, 17 Ves. 173. Ib. 178. And the error must be apparent in the body of the decree itself. Beames Orders 1.

Regarding the deeds of trust as void, then the decree of 1815, rather impaired the rights of the husband, than of the wife. But if those deeds are good, then the wife in reference to the property contained in them, is to be considered as a feme sole, and her acts as obligatory upon her, as if she were single. Pybus vs. Smith, 3 Bro. Ch. R. 340. Allen vs. Papworth, 1 Ves. Sr. 163. Grigby vs. Cox, Ib. 517. Herline vs. Tenant and wife, 1 Bro. Ch. C. 16. Sturgis vs. Corp, 13 Ves. 190. The husband abandoned his marital rights over his wife's property, in consideration of the provision made by the decree for his children, and therefore to set it aside after his death, would be essentially unjust. A reasonable decree will not be set aside upon a bill of review, though there is error upon its face. 2 Coxe [**11]  3. Richmond vs. Tayleur, 1 P. Wms. 734.

3. Viewing the wife, as a feme sole in reference to the property in question, as she undoubtedly was, then whatever objections might have originally existed to the decree, the application for its review comes too late. Lytton vs. Lytton, 4 Bro. Ch. R. 458.

Such an application must be made within the time limited for appeals.

4. The claim of Inloes being recognized by the conveyance of July 1813, and neither the claim or conveyance being impeached, the appellant as a condition to being relieved against the decree, will be required to pay the claim. The appellant was unquestionably bound by the deed of 1813, considered as a contract, and affecting her separate estate. Tiernan vs. Poor and wife, 1 G. and J. 216.

5. Inloes' claim cannot be disputed upon the present bill. Its validity is not called in question, but if it was, the proofs, do not sustain the allegation.

6. An appeal however, will not be from a decree dismissing a bill of review. It does not settle the rights of the parties-- that was done by the original decree, from which an appeal should have been prosecuted in time, if its provisions were unsatisfactory.  [**12]  This was not done, and the attempt now is, to induce the chancellor to re-examine his former judgment. It was in passing that former judgment, and not in refusing to revise it, that the appellant has been aggrieved, if she has been aggrieved at all.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*200]  DORSEY, Judge, delivered the opinion of the court.
The preliminary question which the appellees have raised, predicated upon the idea, that this is a bill of review, seeking the reversal of the Chancellor's decree, on the ground of error in law patent on the face of the decree, denies to the appellant the privilege of prosecuting this appeal, upon the principle, that this decree of dismissal, whether right or wrong, does not materially prejudice or conclude any of his valuable rights. In that innocent, immaterial light, we cannot regard it, but believing that it does foreclose and settle rights, highly important to the interests of the appellant, we deem it a fit subject for revision, in an appellant tribunal.
Several incidental questions have been discussed, which we will advert to, before we proceed to the [**13]  examination of the main points in the cause. It has been urged by the appellees, that the appellant cannot obtain the relief she has asked for, because of the insufficiency of the averments in her bill. That if she seeks to vacate the decree of 1815 on the ground of fraud, mistake, or surprise, such fact must distinctly appear in the statements of the bill. To this it has been replied, that by the act of 1832, ch. 302, sec. 5, all objection to the sufficiency of averments of the bill, shall be made by exceptions filed in the cause, and no point shall be raised, noticed, determined or acted upon in the court of Appeals, unless it shall plainly appear in the record, that such point had been raised by exceptions, in the court of Chancery, and that the exceptions in this respect filed by the appellees, were so general and indefinite, that they should be wholly rejected, as in no wise complying with that particularity and 

 [*201]  certainty, which it was the design of the Legislature, that such exceptions should assume. We should feel no hesitation in so regarding these exceptions, if taken to a bill in Chancery in the ordinary form. But to the present bill, which its advocate has refused [**14]  to class under any definite head of bills in Equity; but has assigned to it, as many characters as the chameleon assumes colors, it would be unreasonable to require exceptions more discriminating and specific, than those used on the part of the appellees.
In support of this bill it has been insisted, that it may be regarded as an original bill, seeking to remove a void or voidable incumbrance or conveyance, hanging as a cloud over the title of the appellant; or as an amended bill, or as a supplemental bill; or as a bill of review without leave, or as an original bill seeking to avoid certain deeds of conveyance, and a decree of the court of Chancery, as being obtained by fraud, or by mistake, or by surprise. If this bill be so peculiar in its structure, so multifarious in its character, as that it may be viewed in all the various aspects which have been ascribed to it; more specific exceptions, to the insufficiency of its averments, than those which have been taken, could not in reason be demanded of the appellees. Had the bill been unequivocal in its character, and distinctly disclosed the grounds on which its claim to relief was predicated, then according to the spirit and true [**15]  intent, of the act of 1832, would the question of the sufficiency of the averments in the bill be excluded from our consideration, and the appellees would have lost the benefits contemplated by their exceptions, except those which relate to the mortgage debt claimed by Inloes' representatives. In relation thereto, the exceptions to the averments in the bill are sufficiently pointed.
A similar objection has been taken to the appellees exceptions to the sufficiency of the evidence adduced in support of the allegations in the bill. But on this score, the appellant has no reason to be dissatisfied; nor have the appellees lost any thing from the want of greater particularity. The act of Assembly makes it neither the interest nor the duty of the 

 [*202]  appellees, to raise exceptions to the sufficiency of the evidence on the part of the appellant. Instead then, of regarding the exceptions in this case as uncandid, and evasive, they ought rather to be viewed as the gratuitous and friendly suggestions, of a frank and liberal adversary, pointing out to his enemy the assailable point of his position, that before the battle commenced, he might take measures to fortify and strengthen [**16]  it. The act of 1832, ch. 302, although it does not require any exception to the want or insufficiency of evidence, does restrain parties in this court, from making any objection to the competency of witnesses, or the admissibility of evidence, unless the point were raised by exception in the court below. No exception was, in this cause, taken to such competency or admissibility, and consequently the objection here taken, to the admissibility in evidence, of the schedule of property, and list of debts due to James Inloes, the insolvent petitioner, cannot avail the appellees. Nor would a general exception in the court below to the competency of the appellant's witnesses, and the admissibility of his evidence, better their condition. To render such exception available, it must be sufficiently definite to apprize the opposite party of the particular witnesses, or evidence designed to be excepted to.
An attempt has been made to shut out the proof and defence opposed by the appellant, to the mortgage debt of James Inloes (the payment whereof is insisted on by his heirs, trustee, and administrator) on the ground, of a want of averment in the bill, that the debt has been satisfied [**17]  or paid, or is not still due and owing. And this objection we think well founded, as far as concerns the heirs of James Inloes. A part of the relief prayed for is, that the deed of 1813, from Berret and wife, and Sarah Chew O'Donnell to James Inloes, be cancelled. To obtain it, some allegation of its payment or discharge, is indispensable. The exceptions to the averments in the bill, pointed with sufficient certainty to this defect, and therefore, all the proof taken and relied on by the appellant as a bar to that claim, must be considered as out of this case, being evidence of a fact not in issue in the cause. As curing 

 [*203]  this obvious imperfection in the bill, in respect to all the appellees, it is stated that the amended bill contains this necessary allegation. But that amended bill, it must be remembered, has never been answered by Inloes' heirs, and consequently as to them, can produce no such effect as has been imputed to it. The attempt, however, of the heirs of Inloes, to exclude from the court the investigation of the merits of this claim, can avail them nothing. In the eyes of a court of Equity, they are mere nominal parties, having no beneficial [**18]  interest in the subject. Against the trustee and administrator of James Inloes, the only party substantially interested in contesting this matter, the requisite allegation has been made in the amended bill, and the equity and validity of this claim is now fairly submitted for determination to this court.
Is this alleged mortgage debt, if unpaid, a subsisting lien on Mr. Berrett's real estate? is the next question to be examined. It originated under the deed of 1813 from Berrett and wife, and Sarah Chew O'Donnell, to James Inloes. What estate in the realty of Mrs. Berrett passed by that deed, is first to be ascertained. If it be true, as stated in the bill, that Berret, and Mary E. O'Donnell were, at the time of the execution of the deed to John Oliver in 1809, under the age of twenty-one years, and the deed of marriage settlement on that account voidable, (of the correctness of which conclusion however, we mean to express no opinion) then the deed of 1813, transferred to Inloes during the life of Berret, the legal title to the real estate conveyed to John Oliver; but by reason of the defect as to privy examination in the acknowledgment [**19]  of that deed, which prevented its operation at law as a legal conveyance, and thereby avoiding in toto the deed to John Oliver, it passed no legal estate in the reversion to Inloes, and left the same in John Oliver, subject to the trusts specified in the marriage settlement. According to those trusts, Mrs. Berrett was entitled to the property as her separate estate; on which as such, to the extent of her beneficial interest therein, James Inloes had in equity, a specific lien for the debt, intended 

 [*204]  to be secured by the deed of 1813. See Brundige and al, vs. Poor and wife. 2 G. and J. 1.
Has this lien been paid since or discharged, is the next enquiry? Upon this subject we entertain no doubt. We think that abundant evidence, that this claim has been satisfied, is to be found in the proofs, and circumstances of this case; and particularly in the testimony given by Ephraim Smith, Robert R. Richardson, John Elder, and Catharine McDowell; in the great length of time this claim has been permitted to sleep, the large amount of money subsequently received by James Inloes for Mrs. Berrett; and in the intrinsic evidence furnished by [**20]  his list of debts, filed with his petition in 1818, when he applied to Baltimore County court, for the benefit of the insolvent laws of Maryland. This pretended mortgage debt of Inloes, therefore, furnishes no obstacle to the relief sought by the appellant.
Looking to the appellant's bill as seeking relief against the decree of the Chancery court of 1815, on the ground of fraud, it cannot for a moment be sustained. It is utterly destitute of the most essential ingredients of such a bill; it neither charges fraud, nor states facts from which an imputation of fraud could possibly arise; and if it did, there is not a shadow of proof to sustain it. There is also a total absence of all proof, that this decree was procured by either mistake or surprise. So far from these grounds of impeaching the decree being inferrible (as has been contended) from the fact of the property's being settled on Mrs. Berrett for life only, and on her children after her death; it is one of the strongest circumstances that could be adduced, to recommend it to the favour and protection of this court. It is a settlement in this respect, bearing on its face intrinsic evidence of its correctness, [**21]  wisdom, and expediency, and conforms to the letter, to that settlement of the property of a feme covert, which a court of Equity always makes, where its powers over the subject are brought into action, by the husband's seeking through its aid, the recovery of the wife's property. Nay, so strict is the chancery rule in England, on such an occasion, 

 [*205]  that the court will not lend its assistance in securing and settling the wife's property on herself, unless she consent that it be secured to her children after her death. Johnson vs. Johnson, 1 Jacob & Walker 455.
Has the appellant a right to the relief she seeks, viewing her bill, as a bill of review without leave, asking for the reversal of the chancellor's decree for error of law appearing on the decree itself? is the next question we propose to examine. The act of 1816 ch. 157, entitled, "an act for the relief of Mary E. Berrett of Baltimore county," it is insisted by the appellant's solicitors, has opened the door for such a bill of review, and rendered it the appropriate mode of seeking the relief they desire. Is such the effect of this act of Assembly? Was it so designed by its framers? It contains [**22]  but a single section, and is in these words: "Be it enacted by the General Assembly of Maryland, that the deeds which were executed by Mary E. Berrett and Joseph S. Berrett her husband (upon their marriage) to John Oliver, of the city of Baltimore, and after their marriage to the said John Oliver and Sarah Chew O'Donnell, and also to James Inloes; making a settlement of the estate real and personal of the said Mary E. Berrett in trust, for the uses and purposes therein mentioned; and also the several decrees of the chancellor of Maryland, and the County court of Baltimore county, in and upon the premises, and appointing successively James Inloes, and finally Gabriel Paul, trustees in the premises, in the place of the said John Oliver, and Sarah Chew O'Donnell, be and the same are hereby declared to be null and void; so far as the same extend to vest the property of the said Mary E. Berrett in trust, and that all the estate of the said Mary E. Berrett, which has not been sold and disposed of by virtue of, and under the authority of the decree aforesaid, and which is now vested in said Gabriel Paul in trust, be,  [**23]  and the same is hereby vested in the said Mary E. Berrett in the same manner, and under the same conditions, and none other, as married women can and do, by the laws of this State, hold and enjoy property of the same 

 [*206]  description, Provided, and it is hereby expressly declared, that nothing in this act, shall in any way or manner, affect the right of any other person in and to any part of the said property, and that this act be construed only to render void and annul the trust now existing as aforesaid, and to leave the said Mary E. Berrett, with respect to that part of her property now held in trust, in the same manner as if no such trust had ever existed." Construing this act of Assembly as all other Legislative enactments must be construed; according to the declared will and obvious design of the Legislature; can the human mind be brought to the conclusion, that the intention of the General Assembly in passing that law, was to authorize the filing of a bill of review, for the purpose of reversing the decree referred to? Is there a sentence or word in the law, which could suggest the idea; that in passing it, the Legislature intended, or contemplated, any [**24]  subsequent judicial proceedings, to try the validity of the decrees and deeds which it mentions? If there be, it requires keener optics than we possess, to discern it. to us their design is too manifest to admit of a momentary doubt. They intended to do what their language unequivocally imports; by legislative enactment, to vacate and annul the deeds and decrees on which they were acting; and to divest the rights and title, of the other persons by them named in the real and personal estate held by Mary E. Berrett before the date of said deeds and decrees, and to reinvest the same in her in the same manner, as if those deeds and decrees had never existed; subject to the proviso, contained in the act of Assembly. Can the Legislature exercise such a power? Unquestionably not. This act of Assembly, is so direct and obvious a violation of our declaration of rights (a part of the constitutional code of Maryland) which declares, "that the legislative, executive, and judicial powers of government ought to be forever, distinct from each other," and of the 10th section of the constitution of the United States, which provides, that no State shall pass any law impairing the obligation [**25]  of contracts, that to prove its unconstitutionality needs neither argument, illustration, 

 [*207]  or authority. We regard, therefore, this act of Assembly as utterly null and void; and wholly inoperative, upon the deeds, decrees, and rights of the persons mentioned therein.
But suppose there could be ascribed to it, that qualified effect, which has been imputed to it, by the appellant, viz: that it only operated upon the remedy, by which the rights of the parties were to be adjudicated; and so far removed from Mrs. Berrett and her husband, the conclusiveness of the decree of 1815, as to authorize its reversion, by such a bill of review as that now under consideration. Within what time must that bill have been filed? In nine months after the passage of the act of Assembly, if preferred by Berrett and wife; and within nine months after the death of Berrett, or the knowledge of that event had reached her, if filed by Mrs. Berrett after discoverture; that being the time fixed by the act of Assembly, limiting appeals from decrees and orders of the court of Chancery. The present bill was filed more than two years after information of Berrett's death was communicated [**26]  to the appellant.
It is alleged, that this objection does not arise in this case; the appellees not having relied on it in their answer. This suggestion, if entitled to any weight, is answered by the fact; that this proceeding is in part against infants, and it is the duty of a court of Equity, to see that their rights are not prejudiced or abandoned, by the answers of their guardians. But there is nothing in this objection. It is not the ordinary case of limitations or presumptive bar from lapse of time; the determination of which may depend upon the proofs in the cause. But is a case, where a plaintiff comes before you, asking for relief, and shews upon the face of his bill, that you have no jurisdiction over the subject. Against the influence of such a defect, you cannot shut your eyes, whether the defendant rely on it as a defence, in his answer, by plea, or on demurrer, or not. It is a matter of law, of which the court must judicially take notice. It admonishes them not to proceed in the trial; that they have no jurisdiction over the subject matter thus illegally attempted to be brought before 

 [*208]  them. And they dispose of the question in precisely the same manner, that [**27]  an appellate court would do, if a case were brought before them, in which the appeal had been taken, long after the time limited by law for the granting of such appeals. In a proceeding like the present, the Chancery court is in fact an appellate tribunal, called on to review its own decree, in a case where the application for its aid, shews the absence of all appellate power in the court. Edwards vs. Carroll, 5 Bro. P.C. 466; Foster vs. Hodgson, 19 Ves. 180; and Mitf. P. C. note (e) 212.
The views we have taken of this case, render it unnecessary for us to examine the several grounds urged in the argument, for the reversal of the decree of 1815.
Looking to the appellant's proceeding, as a bill of review without leave (and in no other character, more favorable to her can it be regarded) we cannot do otherwise than affirm the Chancellor's decree, dismissing the bill, with costs in both courts.
DECREE AFFIRMED WITH COSTS IN BOTH COURTS.  

21 of 41 DOCUMENTS 

LEWIS, USE OF RINGGOLD'S ADM'R, vs. HOBLITZELL'S ADMR'S, AND HOBLITZELL'S ADM'RS vs. LEWIS, USE OF RINGGOLD'S ADM'R.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 259; 1834 Md. LEXIS 20 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   CROSS APPEALS from Alleghany county court.

This was an action of Assumpsit, instituted on the 25th of August, 1829, by the appellant in the first case, against Hoblitzell in his life-time, to charge him as the assignor of two bonds for $ 1000 each, payable respectively on the 1st of April, 1824, and 1825.

Issues were joined upon the pleas of non assumpsit and limitations; and a verdict taken for the plaintiff, subject to the opinion of the court upon the following case stated.

"On the 30th of December, 1818, Robert G. Russell purchased a house and lot of ground in Bedford, Pennsylvania, from one John Anderson, for $ 7000--$ 1000, part thereof was paid in cash; and the balance to be paid in six equal annual payments, commencing on the first of April, 1820, for which he gave six several bonds secured by mortgage on the premises. That on the 20th day of January, 1820, the said John Anderson assigned the aforesaid bonds to Jacob Hoblitzell, (the appellee's intestate) in his life-time, for a full and valuable consideration, and at the same time, and as a simultaneous act, assigned him the mortgage to secure the payment of the bonds. That on the 2d of May, 1820, two of the [**2]  said bonds, and on the 22d May of the same year, one other of the said bonds, were assigned by said Hoblitzell to Henry Lewis, (the appellant) for a full and valuable consideration, in the terms following: "For value received I assign to Henry Lewis, his heirs and assigns, the within bond, and hold myself answerable for the ultimate payment. May 2d, 1820."

That on the 17th of February, 1821, three of the bonds payable in 1823-4 and 5, were assigned by said Lewis to Samuel Ringgold, (for the use of whose administrator the present action is brought.) The plaintiff further proved, that on the 18th of April, 1823, suit was instituted in the Alleghany county court, in the name of said Lewis for the use of Ringgold, against Hoblitzell, as the assignor of the bond which became due on the 1st of April, 1823, in which suit there was a verdict and judgment for the defendant, at the October term of that court in the year 1824. That on the third day of September, 1823, suit was instituted in Frederick county court, on the same bond, in the name of Anderson, the obligee, for the use of Ringgold, against Russell, the obligor, who confessed judgment therefor, on the 3d of August, 1824, and that [**3]  nothing was ever received from the said Russell, on either of the said bonds, except the sum of $ 1669 63, from the sale of the mortgaged premises in Bedford. That Isaac S. Swearingen, to whom Ringgold's proportion of the proceeds of the mortgaged premises was paid, was his agent in the collection of the money due on the said bonds, and as such agent, he caused the suits to be instituted in Alleghany county court against Hoblitzell. That he then went to Pennsylvania to proceed on the mortgage, one of the said bonds being then either lost or mislaid, and that he afterwards got that bond from Franklin Anderson. That he employed counsel in Bedford, with directions to proceed as fast as possible in the business, it being his desire to obtain all the money from Anderson, rather than resort to Hoblitzell. That Anderson was solvent in 1828, and that no other suit or suits were at any time instituted against him on his assignment of the aforesaid bonds, or mortgage, and no other suit was brought against said Russell, except that already mentioned in Frederick county court.

The plaintiff also offered in evidence the following certificate. "I hereby certify that it appears on the docket [**4]  of August court, 1823, that Robert G. Russell has had a personal release, under the insolvent laws of this State, and on the 13th March, 1830. That his day for appearance was on the second Monday of December, 1830, and by his schedule has made return of no property, except what is in the constable's hands, taken under distress for rent.

Test,     John Schley, Clerk."

Upon this statement the county court gave judgment for the plaintiff, for the amount found due by the jury, deducting the sum received by the plaintiff from the proceeds of the mortgaged premises in Pennsylvania.

Both parties appealed to the court of Appeals.  

DISPOSITION:
Judgment affirmed in part and reversed in part, and a PROCEDENDO ordered.  

HEADNOTES:

The bonds of G, payable in 1823-4 and 5, were assigned by A the obligee, to H, who assigned them on the 2d May, 1820, to L, in the following terms: "For value received I assign to L, his heirs and assigns, the within bond, and hold myself answerable for the ultimate payment." These bonds were afterwards assigned by L to R. HELD, that in the event of L's diligent prosecution against those who stood before H, in the order of liability, upon those bonds, or by shewing the inutility of such a prosecution, he became entitled to a right of action against H, upon his contract of indemnity, and that suit might be brought against him for the use of R, the equitable assignee of L. But quere, although it was indispensable to proceed against G, the obligor, or account for not doing it, whether it was necessary to proceed against all the antecedent parties to H.

In an action against the assignor of certain bonds, to shew the inutility of proceeding against the obligor, the bonds being payable in 1823-4 and 5, the certificate of the clerk of the proper court, "that it appears on the docket of August court, 1824, that the obligor had a personal release under the insolvent laws of the State; and that he again applied for the benefit of the insolvent laws of the State on the 13th March, 1830; that his day for appearance was on the second Monday of December, 1830, and by his schedule has made return of no property except what is taken under a distress for rent," is not sufficient upon a case stated, to enable the court to assume the inability of the obligor's estate, in the years 1824-5-6, and to the institution of the suit in 1829, to pay the claim, if he had been sued; although it might have been sufficient to induce a jury to find the fact of the insolvency.

In a case stated, the parties ought to agree upon and state the facts, and not the evidence of the facts; if all the facts upon which the law is claimed cannot be agreed, a jury should be called.  

COUNSEL:
Dixon and Johnson, for Hoblitzell's Admr's, contended,

1. That the plaintiff is not entitled to recover, in consequence of his neglect to proceed against Russell. Unless due diligence was used to recover the money from Russell, the principal debtor, the secondary liability of Hoblitzell did not attach. His engagement was not absolute, but conditional. It was a contract of indemnity, to save harmless, and no more; and he could only be held responsible, upon the insufficiency [**5]  of the means of the principal to pay the debt, being ascertained by a diligent prosecution of every legal remedy against him. Act 1763, ch. 23, sec. 9. 3 Harr. and Johns. 235. The obtention by Russell of a personal discharge is not evidence of insolvency. A party who has been discharged is not a competent witness for his trustee, because of his interest in the surplus of his estate, and of course the law presumes there may be a surplus.

The assignor of a bond is only answerable when the exercise of due diligence has failed to recover the money from the principal debtor, and the onus of the proof is upon the plaintiff. 2 Hen. and Munf. 114. (note.) 16 Serg. and Lowb. 29. This suit is upon the assignment of the bonds which fell due in 1824 and 1825, and upon them suits were never brought against the obligor, and no fact is stated, which furnishes a legal excuse for not doing so.

2. The money should have been recovered from Anderson, the obligee, against whom a suit might have been instituted in the name of Hoblitzell, for the use of Lewis. It was a Pennsylvania contract, and consequently it is no answer to say, that the plaintiff is excused from proceeding against him because [**6]  he resided in that State.

This cause comes before the court upon a case stated, and no inferences of fact are to be made but such as are inevitable. 2 Harr. and Gill, 119, 320. 3 Gill and Johns. 158.

On the appeal of Lewis they insisted, that the verdict was conclusive upon the question of the application of payments.

Price, for Lewis.

On the bond which became due in April, 1823, suit was instituted to the first term thereafter against Russell, soon after which he petitioned for the benefit of the insolvent laws, and obtained a personal discharge. And he petitioned again in 1830, having no property which could be made liable for this debt. A suit therefore would have been fruitless, and need not have been brought. The inability to pay a debt, is a matter to be inferred from circumstances, and need not be expressly proved. The plaintiff had already sued Russell, on the bond of 1823,. and recovered a judgment, from which nothing could be realized; why then should they encounter the expense and trouble of securing the others.

2. Proceedings against Anderson were not necessary to fix the liability of Hoblitzell. The assignment by Anderson to Hoblitzell, was a naked [**7]  assignment, and created no liability from the former to the latter, but if it did, there could be no obligation on Lewis to go to Pennsylvania in pursuit of him. The cases in Virginia, upon the subject of the responsibility of the assignor to the assignee, were decided upon the principle of treating sealed notes, as negotiable instruments. 3 Gill and Johns. 242. There was no obligation on Ringgold to go to Pennsylvania to proceed upon the mortgage, though he had a right to do so if he chose. The money received by him there from the proceeds of the mortgaged premises, he had a right to apply to the debt most in jeopardy, and that was the bond of 1823. 6 Cranch, 27, 28. 5 Taunt. 601. 1 Serg. and Low. 203. And besides, as that bond first became payable, it should have been first paid. 1 Bay. 497.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*264]  CHAMBERS, J., delivered the opinion of the court.
It is clear that the assignment of Hoblitzell to Lewis, by the express terms of which, he made himself responsible for the ultimate payment of the debt assigned, would subject Hoblitzell to an action at the suit of Lewis [**8]  , in the event of Lewis' diligent prosecution against those who stood before Hoblitzell in the order of liability, or by showing an excuse for, or in other words, the inutility of such prosecution.
We think that Ringgold, being in point of fact the equitable assignee of Lewis, the suit might well be instituted in the name of Lewis for his use. Much argument has been urged on one hand to sustain, and on the other to resist the proposition, that the obligation of Hoblitzell did not arise until an effort had been made to enforce the demand against Anderson, as well as against the mortgaged premises. Upon this proposition it will be unnecessary for us to 

 [*265]  express an opinion, as our decision will be given upon grounds not involving its justness.
It cannot be controverted, that before the liability of Hoblitzell could accrue, it was necessary to use due diligence against Russell, or to account for the want of it, by proof of his entire inability to pay.
That no suit has been instituted against him on these bonds is admitted, and therefore due diligence is disclaimed; but it is said, that "facts and circumstances" set forth in the case stated, [**9]  prove an excuse, by shewing his inability to pay. The parts of the record to which we are referred, and in which alone, any thing can be found, having any reference to this subject, are first, the certificate of the clerk of Frederick county court, in these words: "I hereby certify that it appears on the docket of August court, 1824, that Robert G. Russell, has had a personal release under the insolvent laws of this State, and that he again applied for the benefit of the insolvent laws of this State, on the 13th of March, 1830. That his day for appearance is on the second Monday of December, 1830, and by his schedule, has made return of no property, except what is in the constable's hands, taken under distress for rent. Test, John Schley, Clerk."
Next, the statement of Swearingen's proceedings as agent of Ringgold, the assignee, who "caused a suit to be instituted in 1823, in Alleghany county, against Hoblitzell," which was an action upon the assignment of another bond, and in which action the plaintiff was non-suited; and another suit in Frederick county against Russell, in 1823, which was an action upon another bond, and upon which bond [**10]  judgment was obtained, and no proceeding by execution issued--"And went to Bedford, Pennsylvania, and employed counsel to proceed on the mortgage, and against Anderson. That he resorted to all the efforts aforesaid, wishing to obtain all the money from Anderson, rather than resort to Hoblitzell; and that he directed his lawyers to proceed as fast as possible in the business aforesaid;" which we are 

 [*266]  asked to connect with a prior part of the case stated. "That nothing was ever received from said Russell, on either of said bonds, except from the sale of the mortgaged premises in Bedford."
We have no means of determining the date of the clerk's certificate, except that it speaks of the application in March, 1830, in the past tense, and not so of the day for appearing in December, nor is the purpose avowed for which it was introduced. We are also left to conjecture to which of the two applications it intends to attach the "schedule" spoken of. It would seem to be a part of the proceedings of 1830, as the certificate says, the property returned thereby "is" in the hands of the constable. The certificate therefore proves nothing in regard to the [**11]  property held by Russell, when the "personal discharge" was obtained, nor does it deny that he returned a schedule, or if any, to what amount. He might have had ample estate to pay all his debts in the year 1824, 1825, and 1826, and to the institution of this suit, and it might have appeared even on the face of his schedule, returned when he obtained the personal release, that he had large and ample funds, and yet every word in the certificate be literally true.
The proceedings of Swearingen, the agent, and every thing stated in regard to them, are as inconclusive as the certificate, and the history of his acts and directions may be strictly given in the statement, and yet leave it entirely possible that Russell was solvent, and the additional fact that nothing was received from Russell, does not supply the chasm, or constitute the conclusive proof of inability to pay on the part of Russell, which alone can avail the party, in a special verdict or case stated. The circumstances might probably have induced a jury to infer the insolvency of Russell, although we cannot but think it would have been prudent to aid them by some little evidence from individuals, who [**12]  residing in the vicinity and acquainted with his pecuniary condition, might speak to the fact of his having property, in terms at least as satisfactory as these "circumstances" do.

 [*267]  The cases in this court are full in regard to this matter. In Reeside vs. Fischer, 2 H. & G. 320, the Replevin was issued and served on the 4th of March, 1824. The defendant justified as deputy Marshall under a seizure made in virtue of a fieri facias, which issued on the 18th of December, 1823, and was returnable on the first Tuesday of March, 1824. These facts appeared in a case stated, and the court would not infer that the property thus seized, remained in the defendant's hands, as deputy Marshall, the case stated, not expressly asserting it; because it might be that the goods had been sold, and left in the defendant's hands by the purchaser, or that the debt had been paid, and the goods permitted to remain by the owner, consistently with any thing appearing on the statement. In Hysinger vs. Baltzell, 3 G. & J. 158, the court would have imputed laches, if it had been alleged in the case stated, "that the defendant was in Baltimore [**13]  for two days, and that the plaintiffs knew he was there for that space of time," but it being only stated, that the defendant was in Baltimore, purchased goods from the plaintiffs, and remained there two days, the court thought it consistent with the statement, that the purchase of goods might have been immediately before the defendant left Baltimore, and therefore without enabling the plaintiffs to sue out a writ with effect, the omission to do which, was charged as laches.
The pervading error in the case at bar is, that the "evidence of facts," is set out instead of the facts themselves. The statement furnishes little else but evidence. If all the facts upon which the law is claimed, cannot be agreed, a jury should be called. As the judgment of the county court should have been for the defendants on the facts as stated, and cannot be complained of by the plaintiff, but is erroneous as to the defendant below, we affirm the judgment on the appeal of Lewis use of Ringgold's Adm'r, and reverse it, and order a PROCEDENDO in the case in which Hoblitzell's Adm's are the appellants.  

22 of 41 DOCUMENTS 

THE STATE OF MARYLAND vs. THE PRESIDENT AND DIRECTORS OF THE BANK OF MARYLAND, AND ELLICOTT, MORRIS, AND GILL, TRUSTEES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 205; 1834 Md. LEXIS 16 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the equity side of Baltimore county court.

On the 3d of October, 1834, the State of Maryland filed a bill on the equity side of Baltimore county court, against the appellees, the President and Directors of the Bank of Maryland, and Thomas Ellicott, John B. Morris, and Richard W. Gill, trustees; claiming to be paid out of certain funds in the hands of the trustees, in preference to the other creditors of the bank, which was charged and admitted to be insolvent.

The bill alleged, that the Treasurer of the Western Shore on the 1st of October, 1832, in pursuance of a resolution of the General Assembly, passed on the 14th of March, 1828, deposited of the public monies, in the Bank of Maryland, the sum of $ 50,089 96, for which, with interest at the rate of five per cent. per annum, the interest payable quarterly, and the principal on demand, he received a certificate of deposit signed by the president and cashier thereof. That afterwards, on the 22d of March, 1834, the said bank became insolvent and unable to pay its debts, and being so insolvent, on the day after (the twenty-third of March) conveyed and transferred to Thomas Ellicott, all its estate, property, funds,  [**2]  rights and credits. That on the 26th of March of the same year, the said bank executed a similar deed to the said Ellicott; and afterwards on the 5th of April of the same year, the Bank, and Ellicott, conveyed and transferred to Ellicott, Morris, and Gill, all the said property, funds, rights, and credits. That they accepted the trust, and in virtue thereof, have received large sums of money, which they now hold for equal distribution among the creditors, alleging that the State is only entitled to be paid pari passu with the rest.

The deeds which are exhibited with the bill, direct the trustees to divide the property and funds of the bank, when realized, among all its creditors equally and rateably.

After the trustees had answered, admitting the facts stated in the bill, it was agreed, that the question to be decided, was, whether the State has any, and what preference, under the circumstances of the cause, over the other creditors. If it be decided, the State has no preference, the bill to be dismissed. If she has a preference, then the case shall be remanded to Baltimore county court, and before final decree, the auditor shall ascertain the amount of funds in the hands [**3]  of the trustees, clear of expenses, and such allowances as they may be equitably entitled to, upon which ascertainment such further proceedings shall be had, as are usual in such cases. And it was further agreed, that Baltimore county court should pass a pro forma decree dismissing the bill.

Such a decree was accordingly passed, and the record upon the appeal of the State, brought before this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A debtor in failing circumstances may prefer one creditor to another by a transfer of his property made in good faith; nor is there any objection under similar circumstances to the validity of a transfer by a debtor of his whole estate to trustees for the equal benefit of all his creditors.

The principle is the same whether the deed of transfer is made by a corporation or an individual.

A bona fide assignment of property by an insolvent individual to a trustee for the benefit of his fair creditors, is a valid sale and transfer of the property for a valuable consideration; a like transaction by an insolvent corporation in relation to the property subject to its debts, is equally a good sale and transfer of it.

A corporation not being a person capable of taking the benefit of the insolvent laws of this State, is not affected by the act of 1812, ch. 77, sec. 1; and 1816, ch. 221, sec. 6.

The rights conferred by the act of 1650, ch. 28, were granted to the lord proprietary of Maryland, personally, and to his heirs, so long only as they should be lords proprietaries of the then province; that act was not in force at the period of the revolution, and the privileges which it originally created did not pass to the State.

The royal prerogative right of preference in the payment of debts is a branch of the common law of England, and that common law has been adopted in this State by the general terms of the declaration of rights, and the third article thereof. And this secures to the State the right at common law to have its debt first paid out of the property of its debtor, remaining in his hands, and no lien standing in the way.

The right of priority of the State is a rule only in the distribution of the property of the debtor, requiring the debt due to the State to be first paid, where the individual creditor has no antecedent lien overreaching it.

The State of Maryland's funds were deposited in a bank under resolution of the General Assembly, and the bank being in failing circumstances, the president and directors thereof transferred all its property to trustees for the equal benefit of all its creditors. HELD, that the assignment was valid, and that the preference which the State had in the payment of her claim so long as the title to the property remained in the bank was defeated by the deed of trust.

An executor or administrator takes the funds of the deceased to be distributed according to law, subject to such preference as the law allows. The moment the debtor dies the law asserts the rights of the creditors, and takes the property into its hands, and makes or directs the distribution of it according to their priority; that being the law of deceased person's estates which a testator cannot by his will defeat.

A banking corporation although it may by a transfer of all its property render itself powerless to discharge the ordinary purposes of its institution, yet still remains a living and existing corporation.  

COUNSEL:
Taney, Dixon, and Price, for the State contended,

1. The right asserted on the part of the State, is not a lien, or charge on the person or property of the debtor; but a right founded upon the common law to a priority of payment, whenever its rights, and the rights of the citizens came in conflict, and when as between individual creditors, there would be a pari passu abatement. The right is a personal privilege, attached to the person of the sovereign, and comes into existence when his right, and the rights of private persons are brought into collision. 5 Cranch. 299. 1 Black. Com. 178, 185. 3 Bac. Abr. 79. 5 Ib. 487, 558. Tidd's Pr. 1099. This privilege forms no part of the contract with the debtor, and does not embarrass him. He may notwithstanding the [**4]  privilege, alien or encumber his estate, and use it in any way, which his convenience, or interest may dictate. It merely regulates and affects the comparative personal rights of creditors, when in other respects they stand in equali jure. As regards the debtor, the State is but an ordinary creditor. She only stands upon higher ground in reference to other creditors, whose claims are in equal degree. The right does not depend upon process, or the action of the State. Whenever conflict arises, whether by process, the death, or the act of the party, not having enough to pay his debts, the right attaches, as a sovereign prerogative right; and this right has been expressly conferred upon the United States by statute, and neither its constitutionality or policy have ever been questioned. On the contrary it has been deemed a wholesome right, and as such received the saction and approbation of the courts. 6 Binney, 271. 2 Cranch, 389, 390. 6 Peters, 30, 35.

The claim to a priority in payment in England, on the part of the king, is founded upon magna charta itself, which was written by the property holders of the kingdom, and signed by a conquered king, not for his private benefit, but [**5]  for the public good. The right is a vested one, and the deed, so far as it proposes to divest it, and place the claim of the State on a level with the other creditors is, inoperative. The right being based upon the common law, is adopted by the third article of the declaration of rights, which introduces into the jurisprudence of Maryland the whole body of the common law, not inconsistent with the frame of the new government, and subject of course to legislative modification. 5 Harr. and Johns. 401. 3 Harr. and McHen. 173. The act of 1650, ch. 23, shows that this common law principle was recognized and adopted by the colonial legislature. There can be no distinction between this case, and the case of a deceased debtor, whose property is in the hands of his executor or administrator, where according to repeated adjudications, a priority is enjoyed by the State.

There is no English statute now in force, which gives the king a preference in the case of deceased debtors. It is derived therefore from the common law, which is not limited to that particular case.

The deed in this case cannot be supported if it interferes with the vested rights of the parties. For all substantial [**6]  purposes, the corporation is dead, and this court will administer its assets, as if such was the case. The deed amounts to a surrender of the charter. 8 Cowen, 387. 2 Kent's Com. 251. 19 Johns. Rep. 456. 7 Johns. Ch. Rep. 225. Angel and Aimes on Cor. 509. It is the case then of a dissolved corporation, not only without means to pay its debts, but without the capacity of acquiring them, and a court of Chancery, regarding substance, and negligent of forms, must so treat it.

The deed brings the State and the other creditors directly in conflict, as they all, and each, seek to be paid out of the funds covered by it; and they being inadequate to the full payment of all, opposing rights are unavoidably created. Unless the right of priority exists in such a case, it is a mere shadow, capable at all times of being defeated by the mere voluntary act of the debtor. It is not said that property bona fide sold and conveyed for the payment of a just debt, is subject to the claim now set up on the part of the State. But the question here is, does not the right attach, when the sole object of the deed, is to provide for the payment of debts generally.

As a general proposition, the right [**7]  of the State to a priority in the payment of its debts, cannot be denied. 3 Harr. and McHen. 173. 1 Harr. and Johns. 417. Kilty's Rep. 206. The act of 1650, ch. 28, which gives it, was declared by Bacon to be in force in 1763. By the act of 1676, ch. 2, it was confirmed among the perpetual laws. Kilty's Rep. 206.

The third article of the declaration of rights refers to the common law, as known in England, and not merely to those portions of it which had been used and recognized in the colonies anterior to the revolution. 5 Harr. and Johns. 401.

No inference can be drawn adverse to the existence of this common law doctrine of priority, from the passage of the act of 1650, ch. 28. The preface to Bacon's compilation of the laws shows that it grew out of previous political dissentions; and the same remark may be made in reference to the act of 1650, ch. 23.

The argument that if the right exists as in England, that then the English remedies must also obtain here, such as the writ of protection, &c. is not sound. Though we may adopt the rule, we are not bound to adopt the remedies; but may fashion them according to the nature of our institutions, and the spirit of our government.  [**8]  The principles of jurisprudence are one thing, and the machinery by which they are carried into operation another, and very different thing. We may adopt the one and wholly reject the other. Kilty's Rep. 224, 225, 227, 233.

The case in 3 Harr. and McHen. shows that the process used in England is not necessary here; for in that case the court took judicial notice of the right of the State, without an extent, or any proceeding whatever on its part.

The deeds in the present case are purely voluntary--no consideration passed from the grantee to the grantor, nor was their execution induced by the solicitation of the creditors, or any of them. Reference has been had to the case of Brooks vs. Marbury, 7 Wheat. 576. But in that case Marbury, the grantee, was a stockholder in the Bank, whose claim was provided for; and besides, the contest there was between individuals, and involved no question touching the prerogative of priority. The extent in chief is a process used by the king for the recovery of his own debt. That in aid by the king's debtors against his own debtor; and the process in the latter case confers upon the party adopting it, no new right. The case in 3 Price was a [**9]  case of this latter description, and consequently was merely a case between individuals. And the case in Clarke and Finley, 91, only decides, that when the King sues out an extent in aid he is only clothed with the rights of his own debtor, when he thinks proper to resort to this remedy. All the cases cited on the other side on this branch of the subject, refer to the case in Price, and concur in deciding, that the relative rights of the King's debtor, and such debtor's debtor are not changed by the recourse to the extent in aid; and that when the King himself resorts to the same process, he stands in the predicament of his own debtor, and has no higher rights.

Though an assignment in bankruptcy, in reference to individual creditors, relates back to the act of bankruptcy, an extent at the suit of the King issued in the intervening period between the act and the assignment, will be effectual, and overreach the assignment. The reason why the king is bound by an actual assignment is, that it is a judicial proceeding, a judgment in bankruptcy.

It has never yet been decided that the State is within the insolvent laws. They form of themselves a peculiar system inapplicable in many [**10]  of their principles and details to the State; which is never included in a law unless expressly named in it, or by necessary implication brought within its provisions. If, however, the State could be regarded as within the insolvent laws, with respect to individuals, she cannot be so considered, in relation to a corporation which itself cannot be within those laws, being incapable of imprisonment, or availing itself of the benefit of its provisions.

Johnson and McMahon, for the appellees.

The claim of the State is founded upon a mere simple contract, not prosecuted against the debtor himself, but the creditors of such debtor, claiming as bona fide alienees without notice, and against the very terms of the deed. No priority will be given under such circumstances, unless it arises from some superior equity, or from a lien upon the fund, which follows it as a trust in the hands of the alienee. As against a person employed by the public in the collection of its revenue, there might be some policy and justice in giving the preference claimed here; for in such a case the officer would be known to act in that capacity, and to be a mere custodiary of the public moneys. But in this [**11]  case the State voluntarily, and for the purpose of profit, parted with its money, trusting wholly to the personal responsibility of the debtor, and thus placed herself on a common level with all other creditors. In taking these deposits on interest, the bank in effect increased its capital, and necessarily expanded its circulation. The State must have known such to be the design of the bank, as otherwise how could it afford to pay interest on the deposite. She furnished the bank then with the means of enlarging its business, and increasing the amount of its responsibilities; and after doing this, if she is permitted to engross the whole fund to satisfy her claim, or take more than her due proportion, she will be allowed to perpetrate a fraud upon the other creditors. It has been said, that the deposite was made under the authority of a resolution of the legislature, of which all persons are bound to take notice. But the resolution does not designate the bank in which the deposite was to be made; and besides, with regard to prior creditors, against whom also the preference is claimed, there could have been no notice either in law or in fact. If a preference is awarded the State in this [**12]  case, she will be equally entitled to be preferred in every case in which she is a joint stockholder in the bank, or any other company, after the payment of the debts of such bank or company. No distinction can be taken between joint depositors and joint stockholders. If prerogative prevails in the one case it will in the other; and the same will be the case, whenever a State's debtor, being insolvent, shall undertake to alien his property, though the alienee may be alike ignorant of his indebtedness or insolvency. Such secret trusts or liens have always been discountenanced by the courts.

The right now claimed on the part of the State must be either inherent or derivative. It cannot be inherent and original, as a sovereign right, for as such it is forbidden by the genius of our government, all of whose powers are derived from the constitution or laws. None of the departments of the government, nor the whole combined, possess any of that class of powers which emanate from the prerogative.

The rights of the State, under the constitution, reside in the legislature, and until they are called into action by that branch, the organ of the sovereign will, no other department can [**13]  exercise them. But suppose such a right to exist in ordinary case, would it be applied to one like the present, in which the State became a creditor, by depositing her money for hire. By so doing she placed herself on a common platform with all the other depositors, and must share one common fate with them. 9 Wheat. 904. 3 McCord. 377. Not a case can be found in the United States, in which a priority of payment has been successfully asserted upon the ground of prerogative. 1 Dessau. 450. Appendix, 599. The priority in favor of the United States is founded upon statute. Act 3d March, 1798. 2d March, 1799. 4 Wheat. 118, (note.) 2 Cranch. 391. 6 Peters, 30, 35.

2. Nor is it derivative from the king or proprietary.

At the common law, the mere indebtedness of a party did not give the king a lien on his goods and chattels, nor did the commencement of a suit, nor the mere rendition of a judgment. There must be an execution, and a previous alienation of goods and chattels by the king's debtor would be good against him. 16 East. 280. Coke Lit. 131, (B.) Stat. 23d, Ed. 3, ch. 19. 33 Henry, 8 ch. 39. 1 Clarke and Finley, 120. If the property of the king's debtor is altered, the right [**14]  of the king is gone. 5 Serg. and Low, 122. 1 Clarke and Finley, 72. 2 Wm. Black. Rep. 1251. 4 Durnf. and East. 402. If the king's debtor mortgages, or pawns his goods for money, it is good against the king. 6 Price, 369. As is likewise an assignment in trust like the present, for the general benefit of creditors. 3 Price, 6. Chitty's Prerogative, 285. 9 Peters, 326. 2 Tidd. 1038. When this deed was executed the Bank was in possession of all her chartered rights, and of course had power to contract and pay debts. In England, at the common law, the king, though the Bank was perfectly solvent, might have issued the writ of protection, and thus prevented her from paying any debt before his own was satisfied.

The statute of Henry VIII. places the crown and an individual creditor on an equality before suit brought; and therefore, unless the State has rights superior to the King, since the statute, she cannot be entitled to a preference. These statutes were intended to soften the rigor of the common law in this respect, and yet are declared by Kilty's report not to be in force here; the inference from which is, that the doctrine itself to which they relate is not in force. If the doctrine [**15]  is in force here unmitigated by the statutes, then we have it, as at common law, with the writ of protection, and all its other incidents. 2 Cranch, 402.

The declaration of rights, only incorporated into our laws the common and statute of laws of England, as they existed at the time the declaration was made. Though adopted in mass, the principles of the common law, are qualified by the nature of our institutions. It was adopted for the regulation of the rights of citizens inter se, and not as applicable to the government, or to confer political power upon it. That declaration was not designed to arm the government against the citizen, but to protect the citizen from the government. Nor can the right be deduced from the act of 1650, ch. 28. That act was for the benefit of the lord proprietary, as the executive head of the State, so long, and so long only, as he filled that situation. And that law was not in force at the time of the revolution. Act of 1676; 1692, ch. 84; 1704, ch. 77.

But suppose the right to exist, it is a mere priority, and not a lien attaching itself to the fund, and may be defeated by a bona fide conveyance. 4 Wheat. 108. 2 Cranch, 390. 3 Ib. 89. 2 Wheat.  [**16]  435. 1 Peters, 438. 4 Peters, 36. 2 Tidd. 798 to 1000.

The deed is good and effectual for the purpose for which it was executed, though the trustees were not themselves creditors, and though the creditors did not solicit its execution. Brooks vs. Marbury, 7 Wheat. 578. 11 Wheat. 78, 98. 3 Maule and Selw. 371.

There is no conflict or concurrence of title in this case; each creditor is entitled to his rateable proportion; just as though the proportion due each had been parcelled out and assigned to him separately.

The case of the State vs. Walsh, 2 Gill and Johns. 406, decides, that the State was within the insolvent laws.

By the act of 1807, ch. 77, a party who makes a preference forfeits the benefit of the insolvent laws; and yet the State, who has been decided to be within those laws, asks a court of equity to adjudge a preference in her favor. The court is asked to do that, which if done by the party, would be punished as an illegal act. And as by the act of 1812, the preference itself is void, the State is, if her claim is successful, in a better condition than if the Bank itself had attempted to prefer her by deed. 2 Kent's Com. 420. Catlin vs. Bank, 6 Con.  [**17]  Rep. 233. The execution of the deed did not operate a dissolution of the corporation. 2 Kent's Com. 250. 19 Johns. 456. 4 Gill and Johns. 107. 7 Johns. Ch. Rep. 226. Act of 1818, ch. 177. 1 Hopkins' Ch. Rep. 303. 8 Cowen, 387, 395.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*216]  BUCHANAN, Ch. J., delivered the opinion of the court.
Before the institution of this suit, there were deeds of trust executed by the President and Directors of the Bank of Maryland to Thomas Ellicott, on the 23d of March, 1834, and the 26th of March, of the same year; and by the President and Directors of the Bank of Maryland, and Thomas Ellicott, on the 5th of April following, to Thomas Ellicott, John B. Morris and Richard W. Gill, of all the estate, property, funds, rights and credits of the bank, wherever situated, in trust, to divide the same whenever realized and collected, among all the creditors of the bank equally and rateably.
The object of the bill is not to set aside the deeds, or either of them, but to subject the property and funds covered by them, in the hands of Ellicott, Morris [**18]  and Gill, as trustees, calling, and treating them as such throughout, to the payment of the entire debt due from the bank to the State, in preference to the other creditors, and to their exclusion.
The prayer of the bill is, that the President and Directors of the Bank of Maryland, and the trustees, Ellicott, Morris and Gill, shall be compelled by decree to pay the amount of the State's claim, $ 50,089 96, with interest at the rate of 5 per centum, out of the funds in the hands and possession of the trustees; and the ground taken in argument is, that the trustees took, and hold the fund under 

 [*217]  their deed, subject to the preference claimed by the State, not as against, but under that deed; the question as to the validity of it not being considered open for discussion, the then members of this court having heretofore determined, on the application of the Union Bank of Tennessee, for an injunction against the Trustees of the Bank of Maryland, that it was a good and valid deed, and we have perceived no reason for changing that opinion. It has been more than once decided by this court, that a debtor in failing circumstances may [**19]  prefer one creditor to another, by a transfer of his property made in good faith. And if, according to circumstances, one creditor may be preferred to another, it would be difficult to imagine an objection to the validity of a transfer by a debtor of his whole estate, to trustees, for the equal benefit of all his creditors. Equality is equity, and when a debtor makes a transfer of his property for the fair purpose of equal distribution among his creditors, he does an honest act, and discharges a moral duty, which none can reasonably complain of; and to which objection can seldom be made, except by such, as may seek to secure their own claims at the expense of the other creditors. In such case, it would not be the debtor seeking to evade or defeat the rights of the creditors, whose interests, according to the extent and character of their respective claims he proposes to protect, but the particular opposing creditors, seeking to draw to themselves more than their just proportions of the debtor's effects, to the prejudice of the other creditors. So that if there be any thing unfair, it would seem to be chargeable, not to the debtor in attempting to secure an equal and just distribution [**20]  among his creditors, but rather to the creditor attempting to prevent such equal distribution, and to secure his own claim to the exclusion of the other creditors. For it is only with the view and expectation of securing his own debt, or advancing his interest beyond that of the other creditors, and not to procure a just and equal distribution of the debtor's property, that a creditor will seek to set aside such a deed; since the deed 

 [*218]  itself if suffered to stand unimpeached secures that object.
Looking beyond the decisions of this court, before adverted to, which were founded upon the insolvent and other existing laws of the State, and which it is not thought necessary to examine in this place, it will be seen, that the same subject has been investigated, and the same principle maintained elsewhere. Pickstock vs. System, 3 M. & S. 372, is a case in which a debtor in insolvent circumstances being sued by Pickstock, one of his creditors, he suffered a judgment by default, and after a writ of inquiry executed, made an assignment by deed of all his effects to trustees, for the benefit of all his creditors, embracing of course the plaintiff [**21]  in the judgment: after which a fi fa. was delivered to the sheriff, who levied under the fi fa, and Pickstock, the judgment creditor, brought suit against the sheriff to try the validity of the assignment, and whether the property passed under it from the debtor to the trustees; and it was held, that the assignment was not fraudulent under the Statute 13 Eliz. but passed the property, although made with intent to delay and defeat the particular creditor, by depriving him of the benefit of his execution, who would thereby have gained an advantage over the other creditors, on the ground, that notwithstanding such was the intention and effect of the assignment, yet that it was for the benefit of all the creditors, of whom he was one, and was placed by the assignment in the same situation with the rest of the creditors, who had an equal right to a fair distribution.
In Hendricks vs. Robinson, 2 Johns. Ch. 283, an assignment by a debtor in insolvent circumstances, being bona fide to secure a particular creditor, was held to be good, and to pass the property, on the ground that "the object of the statute of frauds, was to prevent deeds, &c. fraudulent [**22]  in their inception and intention, and not merely such as in their effect might delay or hinder other creditors." So, in Halliard vs. Anderson, 5 Term. R. 233. Estwick vs. Caillard, 5 Term. R. 420. The King in aid of Braddock vs. Watson and another, 3 Price 6. In 

 [*219]  this last case the assignment was of all the property of an insolvent debtor, for the benefit of all his creditors, as here; and it was held to be good and valid to pass the property out of the insolvent debtor to the trustees, notwithstanding he was a trader, no commission of bankrupt having been sued out.
Marbury vs. Brooks, and Brooks vs. Marbury, was a case of attachment sued out by Brooks, a creditor, against the lands, tenements, goods, chattels and credits, of Fitzhugh, an absconding debtor, and laid in the hands of Marbury, who claimed and held the property, &c. under a deed of assignment to him by Fitzhugh, of all his estate, executed before the attachment was issued, for the particular benefit of certain preferred creditors, several of the banks in the District of Columbia: and the question was, whether the deed so given to Marbury [**23]  , was valid and effectual to pass the property from Fitzhugh, the debtor, to Marbury, the trustee, who was not a creditor of Fitzhugh, and it was held, that it was, and that it vested ab initio the legal estate in the trustee, although the banks, for whose particular benefit it was made, had not expressed their assent to it, and were in fact ignorant of its execution at the time it was given. The debts due to the banks having been considered a valuable and fair consideration, and Chief Justice Marshall, who delivered the opinion of the court, using this emphatic language, "if Fitzhugh might have conveyed directly to the banks with power to sell for their own benefit, why might he not convey to Marbury, with power to sell and pay the money to the banks? If a real distinction exists between the cases, we are incapable of perceiving it." And again, that a debtor "may sell to a fair creditor, or for the benefit of a fair creditor." And the same doctrine is maintained in 2 Kent's Com. 420.
In neither of the cases adverted to, was the deed of assignment executed by a corporation, but that it is conceived makes no difference, and that the principle is the [**24]  same whether the deed be by a corporation or an individual. A corporation as well as an individual is bound to provide for 

 [*220]  the discharge of its debts, and whether the payment is made by sale of property for that purpose, or with money from its vaults is not material. Its property may be seized and sold as in the case of an individual, under an execution for the payment of its debts. Why then, may not the corporation itself, instead of waiting for a judgment and execution, sell the same property for the payment of the same debt, for which it is liable to be sold under an execution? And as a bona fide assignment of his property by an insolvent individual to a trustee, for the benefit of his fair creditors, is a valid sale and transfer of the property for a valuable consideration, a like transaction by an insolvent corporation, in relation to property subject to its debts, is equally a good sale and transfer of it. No satisfactory reason has been advanced, and none is perceived why a corporation in failing circumstances, unless restrained by some express provision in the charter of incorporation, which is not the case here, may not assign its property to trustees, for [**25]  the benefit either of preferred creditors, or of all its creditors equally, as well as an individual in insolvent circumstances. The same relation of debtor and creditor subsisting in one case, as in the other.
In Catlin vs. The Eagle Bank, 6 Conn. 233, the question was distinctly raised, on a bill to set aside a mortgage by the Eagle Bank, after it had failed, and was in fact insolvent, of its real estate, and an assignment of sundry promissory notes to a Savings Institution, a preferred creditor, and to subject all the funds that belonged to the bank at the time of its failure, to an equal distribution among all its creditors: and the court decided, that the mortgage and assignment to the Savings Institution, the preferred creditor, were good and valid, and could not be set aside by Chancery, and dismissed the bill.
If then, this had been a bill by an individual creditor, there could, it is believed, be little doubt that it could not have been sustained. Indeed it has already been determined by the judges of this court, in the case of the Union 

 [*221]  Bank of Tennessee, a creditor to a very large amount, that this very deed is good and valid [**26]  in law and equity: and the bank not being a person capable of taking the benefit of the insolvent laws of this State, is not within, or affected by the provisions of the supplements of 1812, ch. 77, sec. 1, and 1816, ch. 221, sec. 6, which declares, "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." The words "with a view, and under an expectation of being or becoming an insolvent debtor," being held by settled construction to mean, "with a view, and under an expectation of taking the benefit of the insolvent laws, that is, of becoming a technical insolvent, and not a mere insolvent in fact; which view or expectation the bank could not have had, as it could not become an insolvent in the meaning of those laws, and the very provision shows the understanding of the legislature at least to have been, that without it, a deed made by an individual debtor, capable of taking the benefit of the insolvent laws, to a creditor or a surety, might be valid and effectual [**27]  to pass the property; otherwise such a provision would have been unnecessary: and a deed for the benefit of all the creditors equally, or of a particular preferred creditor, that would be good in the case of an individual debtor in insolvent circumstances, as against an individual creditor not having a prior lien, would be equally good in the case of a bank in the same circumstances, as against the same description of creditor. But it is urged that the State has a preference in the payment of debts in cases of insolvency, and in this case has the right to have the amount of its claim first paid out of the funds of the bank, in the hands of the trustees, the bank being insolvent in fact when the deed was given; which right of preference is supposed not to be affected by the deed of trust: and the real question that we are called upon to decide is, whether the State is entitled to such preference.

 [*222]  This is a question of some delicacy and of much importance, both as it respects the amount in controversy, and the principle involved; and has received all the attention its importance entitles it to.
We have not been distinctly informed by the solicitors for the State [**28]  , whether this preference, sometimes called in argument a prerogative preference, or priority, is claimed as being given by the act of the then province of Maryland of 1650, ch. 28, or as being derived from the common law; but it has been claimed and insisted upon, as a right devolved upon the State, by one or the other; though it has been principally asserted as a common law right, secured to the State by the third article of the declaration of rights of this State.
Although as has been observed, this preference has been chiefly insisted upon as a common law right, it may be proper to inquire, 1st, what rights were conferred by the acts of 1650, ch. 28; and 2d, whether it was in force at the time of the revolution.
First then, looking to the language of that act, and it would seem from the expressions used, that the preference was given to the Lord Proprietary personally, and to his heirs, as long, and so long only, as they should be the Lords Proprietaries of the province. The words of the act being, "that all debts which either are, or shall be, from time to time, really and truly due to his Lordship, or his heirs, Lords, and Proprietaries [**29]  of this province, shall be first paid and satisfied within the said province, before any other debts whatsoever." And that whenever he, (the then lord proprietary) and his heirs shall cease to be the lords proprietaries of the province, the preference given to them was to cease also, and would not under that act devolve upon any other. And that when by the revolution, the proprietary-ship was abolished, the preference attached to it sunk with it, and was not transmitted to the State, if the act giving it continued to be in force up to the time of the revolution.

 [*223]  But secondly, was it in force at that period? By an act of 1676, it was made perpetual. In 1689 the colony revolted, and the Proprietary Government was overthrown, and became a Royal Government; and so continued until 1716, twenty seven years, when the proprietary government was restored; during the whole of which time the priority in the payment of debts due to the proprietary, given by the act of 1650, ch. 28, was at least suspended. In 1692 when the colony was under a royal government, free from the dominion of the proprietary, by an act of that year, ch. 84, all the laws made in the province [**30]  before that session of the legislature, including of course the act of 1650, ch. 28, were repealed. By the act of 1700, ch. 8, declaring what laws were in force, the repealing law of 1692, was expressly saved. The act of 1650, ch. 28, then, which had been repealed in 1692, was not in force from that time up to the year 1704, when a law of that year was passed declaring "all acts of assembly of this province, made and enacted at any time before the session of assembly, begun and held at the port of Annapolis, on the 26th of April, 1704, to be repealed and made void, except the acts of 1702, ch. 1, and 1696, ch. 24, and except the act for keeping good rules and order in the port of Annapolis, and which are not revived, saved, and enacted, this present session of assembly." This act of 1704, repealing all prior acts, but such as are embraced by the exception, was in force at the time of the revolution. But it is supposed that the act of 1650, ch. 28, was revived by the exception in the act of 1704, of "all acts revived, saved, and enacted" during that session; on the ground that the repealing act of 1692, being repealed by the act of 1704, the effect [**31]  was, to revive all the acts repealed by the act of 1692, but the act of 1704, by repealing all laws passed before, necessarily repealed not only all prior repealing laws, but precluded the revival of all antecedent acts not saved by the exception. It cannot be understood, as meaning at the same time, both to repeal and revive the same law; and the exception could only have been intended to save such of the 

 [*224]  antecedent laws, as had before, but at the same session, been revived, of which there were several--and that is shown by the express exception of the acts of 1702, ch. 1, and 1696, ch. 24, and the act for keeping good rules and order in the port of Annapolis. The words, "revived, saved, and enacted," meaning such acts as had been expressly revived, and enacted, otherwise the language would have been, which are not hereby revived; to revive a law by repealing a repealing law, not being to enact it. The fact that in 1704, there was no proprietary government, or lord proprietary, and had not been for fifteen years before, and was not for twelve years after, with no prospect in 1704 that it would ever be restored, is of itself sufficient to show, that [**32]  it was not the intention of the legislature to revive the act of 1650, ch. 28, giving the priority which was conferred on the lord proprietary by that act as the head of the government, when there was no such government or head, or prospect of it. Besides, at that very session of 1704, an act was passed, ch., 42, stripping him, who fifteen years before had been the lord proprietary, of a grant of duties on tobacco given in 1671, and granting the same duties to the crown. Can it then be supposed that the same legislature, so dealing with other antecedent grants, intended to revive a personal preference when there was no proprietary to exert it.
And again, if the act of 1704, by repealing the act of 1692, revived the act of 1650, ch. 28, which had been repealed by the act of 1692, it also revived all the other laws repealed by the latter act, among which was the act of 1650, ch. 23, declaring the then proprietary to be "true and absolute lord and proprietary of the province." And will it be said, that in 1704, when there was no proprietary government, nor for twelve years afterwards, the government of the province being then a royal government, the legislature intended [**33]  to revive the act of 1650, ch. 23, declaring Coecelius, Lord Baron of Baltimore, to "be true and absolute lord and proprietary of the province." To ascribe to them that intention would be to be impute to them 

 [*225]  a gross absurdity. And yet, if the words, which are not revived, saved, and enacted, this present session of Assembly," had the effect to revive that act of 1650, ch. 28, being quite as applicable to one as to the other, and which cannot be admitted. The priority then, that is claimed in this case, was not derived to the State by the act of 1650, ch. 28, which it is conceived was not in force at the time of the revolution.
This brings us to the inquiry, whether it is given by the third article of the declaration of rights, made on the third of November, 1776, which declares, "that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes as existed at the time of their first emigration, &c., and also to all acts of assembly in force on the first of June, 1774, except such as have since expired, or have [**34]  been, or may be altered; &c. This asserted priority has been denounced, as an odious prerogative, springing up in the barbarous and tyrannical ages of the British government, and inconsistent with the genius of our people and the spirit of our institutions; and it is contended that the object of the third article of the declaration of rights, was only to secure to the inhabitants of the State the benefit of the common law as a system of laws, or rules of action, in questions of meum and tuum arising between individuals.
It is not our purpose to inquire into the origin of this royal prerogative right of preference in the payment of debts, as it formerly existed in England, or to trace it through its various statutory modifications. It is enough that it constitutes a branch of the common law of England, and that the common law has been adopted in this State, by the general terms of the declaration of rights. The only question is, whether that branch of the common law has been adopted. To the suggestion, that the common law was only adopted as a rule of action in controversies between individuals, the answer is this; if it was only adopted 

 [*226]  to that extent,  [**35]  whence did we derive our whole system of criminal jurisprudence, depending upon the principles of the common law, and having no relation to controversies in civil suits between individuals.
But in The State vs. Rogers and Wife, 2 H. & McH. 198, in 1787. Murray and Sansom vs. Ridley, Adm'x of Ridley, 3 H. & McH. 171, in October, 1793. And Contee vs. Chew's Ex'r, 1 H. & J. 417, in 1803, it was held, that at common law the State had a preference, and a right to be first paid out of the estates of deceased persons, where no liens stood in the way. These cases were decided in the late general court, and were not appealed from, but acquiesced in by the parties contesting the right. And in the State vs. Buchanan, 5 H. & J. 317, 358, and Dashiell vs. The Attorney-General, 5 H. & J. 392, 401, it was decided by this court, that the common law was adopted by the third article of the bill of rights, "so far at least as it was not inconsistent with the principles of that instrument, and the nature of our political institutions."
It is too late therefore, at this day, to deny the State's right at common [**36]  law, to have its debt first paid out of the property of its debtor remaining in his hands, and no lien standing in the way. For notwithstanding all that has been said in disparagement of this right of priority, it is not perceived to be inconsistent with the principles or spirit of our political institutions. It does not indeed exist here with all the incidents to the royal prerogative right in England. We have not the writ of protection, nor the extent in chief, or in aid. And the priority of the State is a rule only in the distribution of the property of the debtor, requiring the debt due to the State to be first paid, where the individual creditor has no antecedent lien overreaching it.
The government of the State is established for the good of the whole, and can only be supported by means of its revenue; which revenue the good of the whole requires to be protected. And as it can only act by its agents, who no matter how vigilant, cannot always be present to protect 

 [*227]  its rights, a priority in the payment of its debts, (which must always be of a public nature) is necessary to enable it to accomplish the ends of its institution.
It is not therefore opposed [**37]  to a sense of right, that the interests of all should prevail over that of an individual, when it can be asserted without disturbing vested rights; which diligent creditors can more readily acquire than the government through its agents. And the Congress of the United States proceeding upon the like principle, and feeling the necessity for it, has in certain cases given a preference to debts due to the general government.
Assuming then this right of priority to belong to the State, in cases to which it can attach; the remaining inquiry is, whether this is a case of that description, or whether the priority of the State's claim, which would otherwise have existed, and might have been enforced, has not been defeated by the act of the bank.
The debt due from the bank to the State, is a debt on simple contract only, and not a lien, as is, and must be conceded. The State therefore having no lien on the property covered by the deed of trust, but a priority only, in the payment of its claim, if that right of priority has not been lost, it is subject, claiming under the common law, to the same common law rule, applicable to the royal prerogative right of priority in  [**38]  England, of the same description. That right in England is enforced by the process in the writ of extent in chief, or in aid, according to circumstances, and may be here, by proceedings known to our courts. But in either case, to make it available, the proceeding must be resorted to, before other vested rights to the property sought to be subjected to the claim are acquired.
In 2 Tidd's Pr. 1098, 1099, the law upon that subject is thus laid down, "when goods are bona fide sold, or fairly assigned by the king's debtor to the trustees for the benefit of his creditors, before the teste of the extent, they cannot be taken under it, even though in the latter case the debtor was a trader within the bankrupt laws, and the assignment 

 [*228]  was an act of bankruptcy." And the examples put by that writer are these. "A factor to whom goods have been sent for sale, and who has accepted bills of exchange drawn on him by his principal to the amount of their value, has a lien on such goods and the purchase money, which lien is available against the crown, when the goods or money have been seized under an extent against the principal for a debt due to the crown. So goods [**39]  pawned or pledged before the teste of an extent cannot be taken under it; because the pawnee, or bailee, has a special property in them; nor for the same reason goods demised, or let to another for a term certain, during the term. But it seems that goods pawned before the teste of the extent may be taken as against the pawnee, on satisfaction of the pledge." And in 1099, "that an extent will not operate upon the goods of a bankrupt actually assigned before the teste of the extent." The same doctrine is also to be found in Chitty's Prerogative of the Crown, 285, and in 281, 284, that the extent is an execution, and binds the defendant's goods only from the award of the execution. And these writers are fully sustained by the adjudged cases upon the subject. The case of the King in aid of Braddock vs. Watson and another, in 3 Price's Reports of Cases in the Exchequer 6, was the case of an extent in aid against the goods of an insolvent debtor of the king's debtor, (between the effect of which, and an extent in chief, there is no difference) where the insolvent debtor having before the teste of the extent assigned his goods for the general benefit [**40]  of all his creditors, (which was an act of bankruptcy, he being at the time a trader, and within the bankrupt laws) it was held, that the goods were protected by the assignment against the operation of the extent.
The King vs. Lee and others, 6 Price 369, decided in the exchequer, is the case of an extent in chief, issued against an immediate debtor of the crown, who before the teste of the extent had sent his goods to a factor for sale, who had accepted bills of exchange drawn on him by the debtor to the amount of the value of the goods; and it was ruled 

 [*229]  that the factor had a lien on the goods that was available against the claim of the crown; with a recognition by the court, of the principle, that goods pawned or pledged before the teste of the extent cannot be legally seized under it. And in Giles vs. Grover and another, decided in the house of lords, 1 Clark & F. 72, it is treated as a settled doctrine, that goods seized and sold by the sheriff under a fi fa. before the teste of an extent in chief, or in aid, cannot afterwards be taken under that writ to satisfy a debt due to the crown. And it is conceded throughout, in the [**41]  elaborate arguments of the judges, "that the crown under its process against its debtor cannot seize the property of another. That when the property has passed from the debtor to another by contract, or a fair and bona fide transfer before the teste of the extent, or under a sale by a sheriff in virtue of a fi fa. the extent comes too late, and the priority of the king is lost; and that the crown cannot by its extent avoid an antecedent equitable mortgage, or lien of a factor, or of a wharfinger, or a bona fide assignment in trust for creditors, or any other similar assignment or charge; because they are created when the debtor has legal power and authority to create them, and attach upon the goods before the process of the crown; and the crown can only take the goods subject to such liabilities as the debtor has legally created."
We have endeavored to show that this is a fair and bona fide assignment for a valuable consideration, and passed the property from the Bank, and beyond its power or control. If so, and a similar assignment in England has the effect to protect the property against the king's extent, and to defeat his priority, (as we have seen [**42]  it does) it has equally the effect here, to protect the property in the hands of the trustees against the common law priority of the State. But this has been assailed as a voluntary assignment by the Bank, and is therefore supposed to be void as against the State's claim, not having been made on the solicitation, or by the coercion of its creditors.

 [*230]  We have seen, that being in trust for the equal benefit of all the creditors, it is not void under the statute of the thirteenth Elizabeth. In the King (aid of Braddock) vs. Watson and another, 3 Price 6, the assignment was not made at the instance of creditors, but being for their general benefit, it was held to be good against the crown. In Marbury vs. Brooks, 7 Wheat. 556, and 11 Wheat. 78, the assignment was for the particular benefit of certain creditors, (several banks) made not only not at their instance, but without their privity; yet it was held to be good, and the assent to it of the preferred banks presumed, they having expressed no dissent.
The attempt to assimilate the condition of the Bank, after the execution of the deeds, to that of a deceased debtor, on [**43]  the supposed ground that the Bank, by the transfer of all its property thereby became dissolved, and ceased to exist as a corporation, rests on no stronger basis.
An executor or administrator takes the funds of the deceased to be distributed according to law, subject to such preferences as the law allows. The moment the debtor dies the law asserts the rights of the creditors, and takes the property into its hands, and makes or directs the distribution of it according to their priority, that being the law of deceased person's estates, which a testator cannot by his will defeat.
Not so in the case of a bank; its funds are in its own hands, and not in the hands of the law; and like an individual, it has the power and authority to pay or transfer them to or for the benefit of its creditors. And although it should by a transfer of all its property render itself powerless to discharge the ordinary purposes of its institution, it still remains a living or existing corporation. But if a mere assignment of all its property, could of itself have the effect to dissolve a corporation, it could only be on the ground, that the deed of assignment was valid and effectual to pass the property [**44]  out of the corporation--otherwise if the deed was void, the property would remain in the corporation, and it would stand as if no such deed had been made.

 [*231]  The remaining ground taken by the solicitors for the State is, that admitting the deed to be good, and the State entitled to come in under it pari passu, with the other creditors, that at once brings the right of the State into conflict with the rights of other creditors, and thereby entitles it to a preference to the whole amount of its debt--which might be answered by a reference to the case of the King (aid of Braddock) vs. Watson and another, 3 Price 6, where the assignment was for the equal benefit of all the creditors.
But the proposition amounts to this; that the deed is to be first set up as good and valid, in order to let in the State to a just proportion of the funds under it, and then to be overthrown to give to the State the entire fund, which cannot be; the deed cannot be good and bad at the same time. If void, and the State goes for the whole of its debt, (and it can only do so on the ground of its being void) it must claim adversely to the deed. If good, (and we have [**45]  said and endeavored to show that it is) it has lost its preference and can only take its just proportion, according to the provisions of the deed. And taking under the deed, there is, and can be no conflict of rights between the respective parties, each creditor's right being only to a just proportion, without disturbing the right or claim of any other. And when neither has a right to the proportion of the other, but each only to his own separate and distinct proportion, how can there be a conflict of rights. It is not like a case of the concurring rights of the king and subject creditor, each seeking to obtain and secure the whole or the same thing, would be a case of conflict. As where there is an execution by the subject, and an execution or extent by the king, before the right or title of the subject is consummated; in such case the king's extent has the preference. But if the property be fairly and bona fide changed, or the right of the individual creditor be completed before the extent, either by sale under fi fa. or a valid conveyance to him, or to a trustee for his benefit; the extent coming afterwards 

 [*232]  will be unavailing. There being no point of time at [**46]  which the two rights were in conflict, and nothing for the extent to act upon, after the property ceases to be the property of the debtor. The right of the State being only against the property of its debtor, and not against the property of its debtor's creditor.
We are therefore of opinion, that the preference which the State had, so long as the title of the property remained in the Bank, is defeated by the deed of trust, and the decree must be affirmed.
DECREE AFFIRMED.  

23 of 41 DOCUMENTS 

THOMAS T. M. DOOGAN vs. JOHN S. TYSON, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 453; 1834 Md. LEXIS 40 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was an action of Debt, instituted by the appellant against the appellee, Tyson, and others, as his sureties, on a replevin bond, in the penalty of $ 2,000, dated March 31st, 1827.

The pleadings were stated by the Judge, by whom the opinion of this court was delivered, as follows:

This action was instituted in Baltimore county court, upon a replevin bond. The defendants pleaded performance generally. To this plea, the plaintiff, after setting out in his replication the proceedings in the action of replevin, and the judgment of the court for a return of the goods and chattels in said suit specified, pleaded that the defendant had not made a return of the said goods and chattels, or any of them, and that he did not prosecute his writ of replevin with effect. To this replication the defendants rejoined, that the goods and chattels mentioned in the replication were not replevied, and delivered to him under or by virtue of the writ of replevin in the replication mentioned; and that he did prosecute his writ of replevin with effect. To this rejoinder the plaintiff demurred, specially for duplicity and other causes therein specified,  [**2]  and the defendants joined in demurrer.

A judgment having been rendered for the defendants on the plaintiff's demurrer to their rejoinder, the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The object of the replevin bond is the indemnity of the defendant in replevin, and all questions arising upon it should be determined by a due regard to that consideration.

The plaintiff in a replevin bond binds himself to prosecute his suit with effect, and in case the property is adjudged to be restored to the defendant, he is bound to do so or his bond is forfeited. In consequence of the property being restored to him by virtue of the writ of replevin, he assumes upon himself by his bond this legal responsibility.

Whether the plea of general performance in an action upon a replevin bond be a correct plea or not, if incorrect, it can only be objected to upon demurrer.

The plea of general performance where correctly pleaded renders it necessary for the plaintiff to show his cause of action in his replication, and to state the breaches of the condition of the bond upon which he expected to rely.

In an action upon a replevin bond, the defendant pleaded general performance; the plaintiff replied, after setting out the proceedings in the replevin and the judgment for a return, that the defendant had not made a return of the said goods, or any of them, and did not prosecute his suit with effect. The defendant rejoined, that the goods, &c. mentioned in the replication were not replevied and delivered to him under the writ of replevin in the replication mentioned, and that he did prosecute his suit with effect. To this rejoinder the plaintiff demurred specially--for duplicity--departure--and that the issue tendered by the rejoinder of the non-delivery of the goods under the writ of replevin was an immaterial one. HELD, that as the double response in the defendant's rejoinder was only an answer to the breaches assigned in the plaintiff's application, the objection for duplicity could not be sustained; but that the fact of the non-replevy and delivery of the goods under the original writ was so alleged in the rejoinder in this cause as not to be decisive of the right of action, as a part and not the whole might have been replevied and delivered; and therefore the issue was immaterial and the rejoinder bad.  

COUNSEL:
Lloyd for the appellant, contended.

1. The rejoinder is bad for duplicity, because it contains two separate and distinct answers, and offers two distinct issues to the replication. The object of pleading is to bring the controversy to a single point, and though under the statute of Anne, several pleas may be pleaded, the same plea must not present two distinct issues. Stephen Pl. 155, 264, 265, 267, 294. Neither is it competent to a party to tender too broad an issue so as to blend other obligations with the single one, constituting the defence. Ib. 259, 260. If an answer to a plea contains any other fact, in addition to what constitutes of itself a sufficient answer, it is double. Stephen, 269, 270. Owings and Karthaus, 6 H. and J. 134. 2 Gill and Johns. 430. Neither should a plea be argumentative. Stephen, 384, 385. 2 Gill and Johns. 430.

The rejoinder here does not meet the allegations of the replication, that the goods had not been returned,  [**3]  by a positive denial of the fact; but it says that they were not replevied, which, though good as an argument, is bad as a plea. The plea that he did prosecute with effect, admitted the replevying, and he could not afterwards deny it.

2. The rejoinder is a departure from the plea. The plea avers a general performance of the condition of the bond, while the rejoinder, by traversing the replevying and delivering of the goods, confesses the breach of the bond, and sets up matter in avoidance. This defect is fatal on general demurrer. 1 Saund. 84, (D.) 1 Chitty Pl. 619, 620, 621. 3 Gill and Johns. 75. The plea is performance, and the rejoinder is merely an excuse for the non-performance, which is a departure. 6 Com. Dig. 150. Letter F. (7.) 3 Gill and Johns. 75.

3. The plea of general performance is bad. It is uncertain and repugnant. It avers in substance, that the defendant prosecuted the writ of replevin with effect, that is, successfully; and at the same time that he made a return of the goods; which is directly inconsistent and contradictory. If he prosecuted with effect he was not bound to return the goods, and therefore both could not be done. This plea cannot be cured [**4]  by rejecting any part as surplusage. Stephen, 369, 378. To show that general performance to an action on a replevin bond is not good, he cited 1 Wills, 5. 6 Bac. Abr. 59, Replevin and Avowry, letter (D.)

Johnson and Williams for the appellees.

1. The objection to the rejoinder is not that the answers to the replication are not relevant and sufficient, but that they are united in the same plea. Now, the rejoinder merely answers the replication, and if there is duplicity in the former, there is also in the latter, and upon the demurrer; you go up to the first fault. 1 H. and G. 471. And although the defendant may have demurred to the replication, he was not bound to do so; and if he rejoined, it was necessary that he should answer all the material parts of the replication. 1 Chitty Pl. 513.

The replication alleged that the defendant had not returned the goods, &c.; and also, that he had not prosecuted with effect; and as the denial of the first would be no answer to the latter, he was compelled to meet both allegations. If the defendants had merely averred the return of the goods replevied, it would not have been a full defence. An action might still have been maintained [**5]  on the bond for damages, for taking and detaining the property replevied.

2. The rejoinder is not a departure from the plea. A departure is an abandonment of the last antecedent plea. Stephen, 405, 409, 410--and appendix 78, note 74.

In this case the plea was performance; which means that the party had done that, which by his bond, he was under a legal obligation to do. The bond does not recite that the party has the goods; on the contrary, it says, "he is about to take them, and if he does not take them, he can be under no obligation to return them. The obligation to prosecute with effect does not involve the obligation to return the goods. There is a difference between a replevin and an appeal bond;--the one supersedes the judgment as soon as it is filed, whilst the other can inflict no injury, unless subsequent proceedings are had upon it. The plea of performance, therefore, is not departed from, by a rejoinder alleging that the goods were not replevied and delivered; because, if such was the case, the party could be under no obligation to return them. Stephen, 409, 410. The plea of performance is the same as the plea of non damnificatus.

If to a replication such [**6]  as this, the opposite party is compelled to rejoin that he did return; then he must prove a return, whether in fact he took the goods or not, as the taking would be admitted by the rejoinder.

3. If the plea of general performance is bad, it is only so on special demurrer, upon the ground of duplicity. 3 Chitty Pl. 513; and being only objectionable in that way, the replying to it waives the objection. Stephen, 163. The plea, however, is good, even on special demurrer. The bond is not like an appeal bond, which binds the party to reverse the judgment or pay the debt, &c. An averment, therefore, that the judgment had been reversed or the debt paid, would be an answer to an action on an appeal bond; for the doing of either pre-supposes the not doing of the other. But such is not the case with a replevin bond, the condition of which is, that he shall prosecute with effect, and return, &c. Both, therefore, must be done; because a return of the goods, if the judgment was against the plaintiff, would not discharge him from his liability for taking and keeping them.

Lloyd in reply.

It is said that there is duplicity in the replication, if there is in the rejoinder; and that on [**7]  the demurrer the court will ascend to the first fault. The answer to this is, that by rejoining, the defendant has waived the objection, even if it were admitted to exist, which however is denied. 3 Maul. and Selw. 180. 3 Chitty Pl. 244, note (a.)

It has been further argued, that though the defendants might have demurred to the replication, they were not bound to do so; and that if they elected to rejoin, they were bound to answer the whole replication. This is not so, if one answer will cover the whole of the plaintiff's case, as would have been done by the plea that he prosecuted with effect.

In a declaration or replication, many things may be stated conjunctively, which would be improper in a plea or rejoinder.

2. The error on the other side, which has involved them in the consequences of a departure, was in pleading general performance of all the stipulations of the bond, instead of pleading specially that he had not replevied; and to require this, subjects the defendant to no hardship, because he must know, himself, how, and to what extent, he has performed his bond. The plea alleges that he prosecuted with effect, and the rejoinder is that he did not take possession,  [**8]  which does not sustain the plea, but is clearly a departure from it.

3. The objection to the plea is not only that each defence is an answer to the action, but that they are essentially repugnant and contradictory. There is no distinction between an appeal and replevin bond; in either case the condition is complied with, by prosecuting with effect, or abiding by and performing the judgment of the court in the premises.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*458]  STEPHEN, J., delivered the opinion of the court.
The questions which this case presents for adjudication are exclusively upon the pleadings, and are not free from difficulty. The object of the replevin bond is, no doubt, the indemnity of the defendant in the replevin suit; and all questions arising upon it should be determined by a due regard to that consideration.
The plaintiff in replevin binds himself to prosecute his suit with effect, and in case the property is adjudged to be restored to the defendant, he is bound to do so, or his bond is forfeited. In consequence of the property being restored 

 [*459]  to him by virtue [**9]  of the writ of replevin, he assumes upon himself, by his bond, this legal responsibility. In 7 Taunt. 103, GIBBS, Ch. J., in defining the legal effect and operation of a replevin bond, says,--"What is the cause of action?--The plaintiff distrains for rent on sheriff, who again takes the goods distrained out of the possession of the plaintiff, on entering into a bond in which two others join him; conditioned, if he shall appear and prosecute with effect; and if a return shall be adjudged, and he shall make return, then the bond shall be void. It is too clear to argue. He is bound to do both, as well to prosecute with effect as to make return, if it shall be adjudged; and if he omits to do either, the bond is forfeited, and he is liable to the penalty. The breach averred is, that sheriff did not make return, and inasmuch as it was necessary he should do both, the breach set out is good." In 11 Serg. and Lowb. 236, HALROYD, J., speaking of the obligations imposed by a replevin bond, says,--"The condition of the bond is broken, and the bond forfeited, as well by not prosecuting the suit with effect, as by a default of making a return of the distress, on such return [**10]  being adjudged, each part of the condition being independent of the other, and the bond forfeited by a failure in either. The failure of prosecuting the suit with success is, we think, a failure of prosecuting the same with effect."
The pleas to a replevin bond, according to British precedents, where the party relies upon performance of its condition, are generally, if not entirely and exclusively, special. That is, the defendant pleads, either that he has prosecuted his suit with effect, and that no return thereof was adjudged. Wills Rep. 56. 7 Wentworth 7. 1 Bos. and Pul. 410, 411. 12 East. 585.
The practice, however, in this state, has been to put in the plea of general performance, as was done in this case; but whether objectionable or not, could only be taken advantage of on special demurrer; and we do not mean to say that it was improperly pleaded. This plea rendered it 

 [*460]  necessary for the plaintiff to show his cause of action in his replication, and to state the breaches of the condition of the bond upon which he intended to rely. He replied, that the defendant had not made a return of the goods or chattels, or any of them, and that [**11]  he did not prosecute his writ of replevin with effect. To this replication, assigning a breach of both conditions of the bond, the defendant rejoined, that the goods and chattels mentioned in the replication were not replevied and delivered to him, under or by virtue of the writ of replevin in the replication mentioned, and that he did prosecute his suit of replevin with effect. To this rejoinder the plaintiff demurred specially, and assigned for causes of demurrer, duplicity, departure, and that the issue tendered by the plea of the non-delivery of the goods, under the writ of replevin, was an immaterial one.
We do not think that the rejoinder in this case was bad, or legally objectionable, on the ground of duplicity, even supposing that both the grounds of defence assumed by it were proper and legally efficient, because the double response in the defendant's rejoinder was only an answer to the breaches assigned in the plaintiff's replication. But we think that the defendant's rejoinder is bad in that part of it where he alleges, that the goods and chattels mentioned in the replication were not replevied and delivered, under or by virtue of the writ of replevin. Without deciding [**12]  whether this averment contains matter which is a legal defence to the action or not, it is sufficient to say, that if it is a legal defence, it is so pleaded as to present an immaterial issue for the decision of the jury, whose verdict, if found for the defendant, would not have been decisive of the right of action, as a part of the goods might have been replevied and delivered, although the whole were not; and if the plea contained matter which was not a defence to the action, it was bad upon the demurrer, and the plaintiff was entitled to judgment. For these reasons we think the judgment of the court below ought to be reversed.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

24 of 41 DOCUMENTS 

GLENN, Adm'r. C. T. A. of CLERY vs. BELT, Adm'r. C. T. A. of VOLUNBRUN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 362; 1835 Md. LEXIS 37 

December, 1835, Decided 

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

On the 16th of December, 1830, the appellant's testator made and published his last will and testament, by which he constituted the testatrix of the appellee his universal legatee, and gave her all that he might possess on the day of his decease, and died in the year 1832 without revoking his said will.

On the 22d of April, 1828, the testatrix of the appellee also made and published her last will and testament, by which she made the testator of the appellant, her universal legatee, and gave him all that she might possess on the day of her death, and died without revoking the same, previously to the death of Clery.

Under these circumstances the Orphans' court of Baltimore county, upon the petition of the appellee, ordered the appellant as the administrator with the will annexed of Clery, to pay to the appellee as the administrator with the will annexed of Volunbrun, the residuum of the personal estate of Clery after the payment of his debts.

From this order the appellant appealed to the court of Appeals.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

By the act of 1810, ch. 34, sec. 4, it was enacted "that no devise, legacy or bequest shall lapse or fail of taking effect, by reason of the death of any devisee or legatee named in any last will or testament, or any codicil thereto, in the life time of the testator, but every such devise, &c. shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest, as if such devisee or legatee had survived the testator."

Held upon the construction of this act.

1. That the power of devising was not enlarged nor affected by this act.

2. The object was to remedy inconveniences growing out of the death of legatees before the will could operate.

3. That the latter clause of the act was to designate in what manner the legacy falling in by the death of the legatee should pass.

4 That the time of the transfer is the death of the testator.

5. That the transfer is to persons in esse, entitled to the distribution of the legatee's estate.

6. That the property does not pass as assets to the executor or administrator of the deceased legatee.

V made C her universal legatee, and gave him all she might possess on the day of her death, and died before C. C made a similar will in favour of V. Both died leaving their wills unrevoked. Held, that the property devised by C to V, under the act of 1810, ch. 34, vested in her personal representatives, among whom, the administrator of C must distribute it in due course of law; but that V's testamentary disposition of her whole estate in favour of C, did not include the estate devised to her by C. It was the mere expectancy of a benefit to be derived from the will of C, not the subject of a testament. 

COUNSEL:
R. JOHNSON, for the appellant, contended,

That if the legacy to Madam Volunbrun [**2]  did not lapse by her death, before the death of Clery, still, by her will, the estate which passed to her under Clery's will, went back to the representatives of the latter. Clery survived Madam Volunbrun, and consequently upon her death, he became entitled to the whole residuum of her estate; and the question is, whether upon his subsequent death, his property including what he had derived from M. Volunbrun shall go back to her representatives in defiance of her will to the contrary.

The act of 1810, ch. 34, intended to put the representatives of the legatee who died before the death of a testator giving the legacy, in the same situation as such deceased legatee would have been, if he had survived the testator, and consequently M. Volunbrun is to be considered as having survived Clery. Had this been the case, her will, would have given the whole estate to the representatives of Clery. But the act of 1810, does not apply to this case at all. In case of the death of a legatee before the testator, the representatives of the former do not take as purchasers, but as distributees of the deceased legatee. In legal effect therefore, the property which was willed to Volunbrun by Clery,  [**3]  was her's, at her death, and being so was subject to her will, which gave it to Clery. She cannot be said to have died intestate with reference to this property. Her will in favor of a third person would certainly have passed it. The interest of Volunbrun in Clery's estate, was an interest devisable under the act of 1810, though not at common law. There can be no doubt, that a devise of real estate to a stranger, would enable him to hold against the heir at law.

MCMAHON for the appellee.

If M. Volunbrun had died intestate, this property would have unquestionably gone to her representatives, as the legacy under the act of 1810, did not lapse by the circumstance of her death before the testator.

The question then is, whether her will in favor of Clery, gives it a different destination; and that depends upon the nature of her interest in it, at the time of her death. That interest he insisted was nothing more than a mere hope or expectancy. It could be nothing more, during the life of Clery, who might at any time have revoked, or changed his will. It could be nothing more than a hope at the period of her own death, and so continued down to the death of Clery. Such an interest [**4]  is not devisable at common law, or transferable in any other way. Bac. Abr. (Grant D 3.) Fitch vs. Fitch et al. 8 Pick. Rep. 482. Jones et al. vs. Roe, 3 Durn. and East, 88. Carleton vs. Leighton, 3 Merrivale, 670. Comegys et al. vs. Vasse, 1 Peters, 220.

2. There is nothing in the act of 1810, which can be construed to make such an interest devisable. The mischief which the act was designed to prevent, was the lapsing of legacies in the life time of the legatee. That was the object pointed at, and the construction should be made to answer that purpose and no other. Craycroft vs. Craycroft, 6 H. and J. 54.

The effect of the statute is to vest the legacy in the deceased legatee, as the stripes from whom others are to claim, and it passes from such legatee, as in case of intestacy.

3. But at all events the property should in the first place go into the hands of the administrator of Volunbrun, who may have debts to pay, for which it is certainly liable in the first instance, whoever may be entitled to the residuum.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*365]  ARCHER, Judge, delivered [**5]  the opinion of the court.
Madam Volunbrun's will, could only operate to pass that, which by law was the subject of a devise or bequest. The expectancy of a benefit to be derived from the will of Clery, was but a naked possibility, and could not, under any authority cited, be the subject of a testament. Indeed, it has been conceded, that such is the law, unless some alteration has been effected in it, by the act of 1810, ch. 34.
But the design of the legislature, in the enactment of that law, is so distinctly marked, and points so clearly to one 

 [*366]  object, as to leave us no room to believe for a moment, that they intended to enlarge the power of devising, or to affect it in any manner. They only desired to remedy inconveniences, growing out of the death of legatees, before the will could operate.
The law after declaring, that no legacy shall fail to take effect by the death of the legatee, proceeds in the following words: "but every such legacy shall have the same effect, and operation in law, to transfer the right, as if the legatee had survived the testator." This clause was intended, barely to designate in what manner, the legacy falling in by the death of the [**6]  legatee before the death of the testator, should pass. Having pronounced that it should not lapse, they deemed it necessary distinctly to point out the persons who should take, and they do this by saying, that the right shall vest, "as if the legatee had survived the testator." The sole object of the law, which was to prevent the lapsing of legacies, is accomplished by the designation of such as shall take them. The construction therefore, which would confer new testamentary powers, would be one beyond the design of the framers of the law, and not by any means called for, by any phraseology they have used.
The language that, "no legacy shall lapse by the death of the legatee," can only be understood, as referring to such legacies as failed by the common law to take effect by lapsing, and which, but for the death of the legatee, would have been available legacies. But the legacy of a possibility does not fail to take effect by the death of the legatee, but from an inherent defect in the subject matter of the bequest, which renders it incapable of being operated upon by a will.
If the above views be correct, the supposed difficulty, growing out of the residuary bequests of the testator, [**7]  and testatrix, each to the other, cannot exist.
Madam Volunbrun dying first, all the estate she was capable of willing by her residuary bequest, passed to M. Clery, either actually, or potentially, and was consequently the subject of testamentary disposition.

 [*367]  Madam Volunbrun became M. Clery's residuary legatee, and her death, occurring before the will of Clery took effect, the act of 1810, ch. 34, steps in, saves the lapsing of the legacy, and vests it in her representatives.
The will of Madam Volunbrun, not operating to pass over Clery's residuary bequest, it cannot produce any effect in the cause, and is not touched or affected by the act of 1810, ch. 34.
But a question still arises upon this statute--Does the executor or administrator of the deceased legatee, or his distributees, take the legacy? The solution of this, depends upon the construction of the following words of the law, "but every such legacy shall have the same effect and operation in law to transfer the right, as if the legatee had survived the testator." As in the case of survivorship of the legatee, the testamentary bequest of the legacy, would have operated the complete [**8]  transfer of the right to the legatee; so in case of his death, the right shall be transferred just as effectually: but to whom?
The time of the transfer, is the death of the testator; and as the legatee, died before the testator, he would not be the person meant, as the object of the statutory transfer. But the law refers to such persons then in esse, entitled by law to the distribution of the legatee's estate in case of intestacy, that is, his representatives.
The words of the law are, not that the legacy shall pass in the same manner as if the legatee had survived and died, but that a transfer should in all cases be operated, as if he had survived; that is, that the title to the legacy, should be as binding and operative in the one case as the other. As it was not intended, that the legatee not in esse at the time to take, should take the right, because being impossible, it would be absurd. We likewise think, that his executor or administrator could not take as assets, that which never could have been the testator's or intestate's. Had the legislature intended, that the legacy should become, and be considered as assets, belonging to the estate of the legatee, liable in [**9]  the 

 [*368]  due course of administration, we think it would not have been left to dubious construction, but would have been declared in unambiguous terms. The words, "as if he had survived," furnish no argument against this view, because they are barely used as words, comparing the title derived under the law, by the persons who are to take, with the title the legatee would have had, and assimilating them in point of legal operation and validity.
In accordance with the above views, a case was decided on the Eastern Shore, June Term, 1824.
The facts of that case were as follows: On the 2d November, 1812, Sally Spence made her will, and died on the 12th December, 1812. She bequeathed the residuum of her estate to Mary Spence Gillis, and appointed Joseph Gillis her executor, who accepted the trust. Mary Spence made her will, 28th of October, 1809, and died on 1st September, 1821. By this will, she made Sally Spence her residuary legatee. Ara Spence administered on the estate of Mary Spence, and after payment of all debts, &c. the residuum of her estate amounted to $ 900. Joseph Gillis executor of Sally Spence, instituted suit against Ara  [**10]   Spence, to recover the amount of this residuum; the county court gave judgment for the plaintiff, but upon appeal to the court of Appeals, this judgment was reversed, and the residuum was distributed among the representatives of Sally Spence. This case is decisive of the cause now before the court.
We accordingly think that the funds must remain in the hands of the administrator of Clery, who will be bound to distribute them after the payment of debts to the representatives of Madam Volunbrun.
We REVERSE the DECREE of the ORPHANS' COURT and dismiss the Petition with costs.
DECREE REVERSED.  

25 of 41 DOCUMENTS 

THE UNION BANK OF MARYLAND vs. ANN POULTNEY, adm'x, d. b. n. c. t. a. of THOMAS POULTNEY, and JOHN M. ELLICOTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 324; 1836 Md. LEXIS 26 

December, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from an order of the court of Chancery, granting an injunction under the acts of 1835, chs. 346 and 380.

The bill in this cause was filed on the 14th November, 1836, by the appellees, and charged that in the month of May, 1832, a certain co-partnership was formed by William M. Ellicott and Samuel Poultney, to carry on the business of banking and dealing in money, bullion, exchange, bills, notes, and other evidences of debt, in the city of Baltimore, under the style of Poultney, Ellicott & Co. That certain persons, to wit: The Avalon Company, Thomas Ellicott, Samuel Poultney, Philip Poultney, and trustees of Samuel Poultney's wife, in July, 1832, conveyed their real estate to trustees, for the better securing the payment of the debts of the said firm as bankers for the term of five years. Those conveyances were exhibited with said bill; that afterwards the said firm became indebted to the said John M. Ellicott, on a certificate of deposite issued by said firm, for money deposited with them, dated on the 4th January, 1834, for the sum of $ 25,000; that they likewise became indebted to said Ann Poultney, as administratrix aforesaid, on a certificate of deposite for $ 56,112 [**2]  81, issued by said firm for money deposited with them, as bankers aforesaid; that the said firm individually and collectively have made default in the payment of said certificates, and each of them are due with arrears of interest; that said sums constitute a lien on the said property conveyed in trust, and that complainants are entitled to the aid of this court to enforce an execution of the power of sale, delegated in the said conveyances in trust, and to be paid out of the proceeds of said trust estate--and the bill further charges, that the trustees mentioned in said conveyances in trust are proceeding to execute the powers reserved to them, and have given the notice to creditors prescribed by said deeds, to exhibit their claims; that the claims of complainants were exhibited, and that a claim due to the Union Bank of Maryland, on a certificate of deposite of said firm, No. 1053, dated 4th January, 1834, and payable twelve months after demand, for $ 25,000, and various other claims were also exhibited by creditors, who acknowledge the validity of the said trust and the proceedings under it; that the said Union Bank has obtained judgment against Thomas Ellicott, for the said debt [**3]  of $ 25,000, so charged on the said trust property and estate, and for which they exhibited their claims to said trustees, and have caused a fi. fa. to be issued thereon, and levied upon the said trust property. The bill exhibited a short copy of said judgment, and it also charged a similar transaction in relation to the Avalon Company, and that Thomas Ellicott and the Avalon Company were two of the grantors, who as aforesaid from motives of friendship had assigned their property in trust for securing the debts of the said firm; that the Bank of Maryland is also preferring a claim against the said trust property, which claim the said firm denies, and that until the same shall be adjusted, it will be impossible to ascertain the extent of the liabilities of the said firm, which are charged upon the said trust estate; and that a sale under the said executions, or either of them, of said trust property, while the amount of the said incumbrances is so entirely uncertain, would not only operate a most manifest injury to the grantors, Thomas Ellicott and the Avalon Company, but also to the appellees, and other cestui que trusts; that the execution levied upon the said trust estate by one [**4]  of the cestui que trusts, is calculated to thwart, and will obstruct, perplex, and delay the prompt and due execution thereof, and impair and diminish the value of the said trust property, by involving the title in doubts and transferring the possession to a purchaser holding adversely; and the complainants further charge, as their belief, that it is the purpose of the Union Bank to surround said trust with difficulties, and to cloud and render uncertain the value of the same, and to cause the same to be sold under the most disadvantageous circumstances, without regard to the rights of any other party interested in the same, unless prevented and restrained by this court, whose province it is to disembarrass trust estates and enable trustees to proceed with their duties. To the end that complainants and all creditors who might come in should obtain relief--prayer for an injunction and subpoena, against the trustees of said estate, the Union Bank of Maryland and Poultney, Ellicott & Co. &c. This bill was affirmed to before a justice of the peace in Pennsylvania, by John M. Ellicott, and certified to by a prothonotary there.

The deeds of trust referred to in the bill, and short copies [**5]  of the judgments, with the assignment by Poultney, Ellicott & Co. of their property in trust for the payment of their engagements, as bankers, were exhibited with the bill; upon which on the 14th November, 1836, the chancellor (Bland,) ordered an injunction to issue, by which The Union Bank was restrained from further proceedings on the judgments aforesaid, which was accordingly issued. After the coming in of the answers (which are not material to the consideration of the question appealed from,) the Union Bank prayed an appeal from the granting of the said injunction.  

DISPOSITION:
ORDER REVERSED.  

HEADNOTES:

To warrant a court of Chancery in issuing an injunction, strong prima facie evidence of the facts on which the complainant's equity rests must be presented to the court to induce its action.

In such a proceeding, the mere oath of a party, as to the existence of a debt, of which he holds in his possession the written evidence, without producing it, should not be regarded by the chancellor as any proof of such debt.

Where the existence of a debt depends on a written instrument, of which the complainant is presumed to be in possession, it should be exhibited with the bill or a satisfactory reason assigned for its non-production.

A party holding a prior lien on lands has no right to prevent by injunction a subsequent judgment creditor from enforcing his judgment by execution; as a sale under such execution could not defeat or impair his prior lien; but would leave him at law, and in equity, in the same condition as if such sale had never taken place.  

COUNSEL:
KENNEDY, for the appellants, contended:

That the chancellor erred in granting the injunction in the proceedings described.

1. Because it was apparent from the statements contained in the bill, that the Avalon Company was indebted to the Union Bank of Maryland in the sum of $ 14,000, for which amount a judgment had been obtained in Baltimore county court, and execution of fieri facias issued thereon; and that said execution was laid on the property of the said Avalon Company, which execution in law, the appellants assert, gave them as creditors of the Avalon Company, a priority over any [**6]  debt of Poultney, Ellicott & Co. which it was the design of the trust deed of the Avalon Company to secure.

2. Because it was also apparent on the statements of the bill, and in the exhibit A, accompanying the same, that the Avalon Company being an incorporated manufacturing company, had by deed without valuable consideration, and not in any course of business recognized by its charter, conveyed away to trustees to secure the debts of a banking concern with which it had no lawful connection, all its property, consisting of valuable lands, grounds, houses, hereditaments, and real estate. Which deed or conveyance was altogether void and inoperative, contrary to the privileges and powers conferred by the charter, and therefore wholly null and of no effect, or that such conveyance was at least void, as against any creditors of the said Avalon Company. On this point he cited the charter of the company, act of 1822, ch. 199. Providence Ins. Co. vs. Head, 2 Cranch. The Trustees of Dartmouth College vs. Woodward, 4 Wheat. 518. Bank of the United States vs. Dandridge, 12 Wheat. 64. 15 John. 358. 5 Conn. 560. The Inhabitants of the first Parish vs. Sutton and Cole, 3 Pick. 232.

3.  [**7]  Because it was also apparent upon the bill, and exhibits therewith, that the said Thomas Ellicott was indebted to the Union Bank of Maryland on his own account, and that judgments had been rendered against him for such debt, and that he was either unable or unwilling to pay the same, whereby his property became liable for such debt, and was answerable for the same before any debt of Poultney, Ellicott & Co. could legally be charged thereon, by virtue of the deed of trust described in said bill; and that so far as regards the creditors of Thomas Ellicott, the said deed of trust was fraudulent and void. On this point he cited: Stat. 13 Eliz. Roberts on Frauds, 12, 22, 27. 2 Ves. Sr. 11. 2 Atk. 181. Russel, et al vs. Hammond, et al, 1 Atk. 13. Methodist Episcopal Church vs. Jacques, 3 J. C. R. 92. Walker, et al vs. Burrows, 1 Atk. 94.

4. Because the said bill does not show or set forth at what date the certificate of deposite alleged to be held by Ann Poultney, as administratrix of Thomas Poultney, was issued by Poultney, Ellicott & Co. nor when the same was due and payable, nor does it set forth when the certificate alleged to be held by John M. Ellicott, was payable, nor does the [**8]  said bill show at what date the said certificates were refused to be paid. Wherefore the appellants contend, that there being no statement or proof before the chancellor to show that their alleged debts were due before the accruing of the debts of the Avalon Company, and of the said Thomas Ellicott to the Union Bank of Maryland, the chancellor was in error to grant the injunction against either of the said executions, inasmuch as that, the said Union Bank of Maryland had at least a priority for their claims against the said parties if such claims existed previously to the indebtedness alleged to arise on the said certificates, notwithstanding the deeds of trust. The said deeds of trust being void, as against creditors having claims against the said parties grantors of elder date then debts intended to be charged on the trust.

The counsel here went into the consideration of the effect of the answers filed in this cause, but as the court decided that the appeal was merely from the granting of the injunction and independent of the answers, it is not considered necessary by the reporters to insert the argument of either counsel on that view of the cause.

R. JOHNSON, also for [**9]  the appellants.

That independent of the acts of 1835, chs. 346 and 380, the appellants in this cause had no right of appeal. The object of those acts was to give to defendants in equity all the rights which the act of 1832, gave to complainants. That act was co-extensive with every grievance of the complainant arising from a refusal to grant or continue an injunction, and the object of the latter laws was to give defendant an appeal to remedy the grievance of awarding or refusing to dissolve an injunction. As the answer is in here, and as the filing it is one of the conditions of the right of appeal, we call on the court to examine it. The appeal brings up both bill and answer, and the court is to pass such order in the premises as to it shall seem proper. What premises? Those before you, bill and answer. But I propose to examine this cause on the case made by the bill, and

1st. As to the Avalon Company:

The charter is before the court, it is recited in the deed and the bill refers you to that. Had the company, as against its own creditor, a right to execute such a deed? The bill admits that the bank under a fi. fa. is about to sell the property of the company on an [**10]  unimpeached judgment exhibited in the cause, and the court is bound to assume that the debt contracted was a debt incurred in the prosecution of the objects of the charter. In point of fact as the answer shows, it originated before July, 1832. It was a renewed accommodation until sued on at law. Looking only to the bill the debt was contracted for the company and with the Union Bank, in ignorance of the deeds of 1832.

The controversy is between a creditor of a chartered company, for a debt contracted in the execution of the charter; and a creditor of a private bank claiming a lien on the property of the corporation, as against such creditor. No company can enter into a valid contract to the injury of a third person beyond the sphere of its charter. The effect of such a contract on the company itself is a different question. Is it competent for a chartered company by a contract out of the sphere of its charter, to dispose of its funds to the injury of those contracting with it and within its chartered powers? The Avalon Company could not have become such a bank as was the firm of Poultney, Ellicott & Co. She could derive no benefit from her deed, it was only to take effect upon [**11]  the default of Poultney, Ellicott & Co. and I concede that if she could in anticipation, have transferred her property without consideration to pay the debts of P. E. & Co. she may apply the same means in the same way after those debts are due. To all charters there are three parties. The state, the corporators, that portion of the community who contract on the faith of the charter and are entitled to its faithful execution--and in that view the Union Bank has the same rights as if named in the charter, and the company's funds specifically pledged to her for her debt. In inquiries into validity of acts done under a charter we examine the grants of power conferred by it. The statute is the enabling power. Every act which the charter does not authorize the corporation to perform, is as much a nullity as if no corporation existed. It is true as a general rule, that for mere violations of chartered franchises, there is no forfeiture unless on office found, yet any individual for wrong done him in that way is entitled to the whole power of the government to recover his right.

A corporation can prefer creditors--if so, and the creditors of P. E. & Co. be creditors of that description,  [**12]  and the deed of 1832 a guarantee to them, then it results that a company may defeat all inquiries into the limitations of its powers--that is the equity of this bill. It denies all right to the Union Bank, and takes away the whole funds of the corporation for an object entirely different from the purposes of its creation. Such a deed may operate on the stockholders of a company but not on its creditors, and the parties I know were so advised originally of such results. The company are trustees for creditors, and if no assets the creditors are remediless.

I contend further that this injunction should not have issued until bond had been filed by the complainants--that it is the duty of equity to require bonds in all cases when it foresees that without a bond the party enjoined may be without remedy. Here is a large debt due on judgment from a chartered company, and after execution issued a third party claims to restrain the creditor--after years of delay and litigation the creditor may find the corporation without a dollar. The defendant in the judgment is required to give a bond, why not a stranger who claims to occupy its place. To enjoin a judgment a bond is necessary.

No [**13]  counsel appeared for the appellees.  

JUDGES:
The cause came on to be argued before STEPHEN, ARCHER, DORSEY, CHAMBERS, and SPENCE, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*332]  DORSEY, Judge, delivered the opinion of the court.
This case comes before us on an appeal from an order of the court of Chancery, granting an injunction to stay the sale of an equitable estate in lands, levied upon under certain writs of fieri facias, issued out of the county court. Have the appellees, the complainants, by their bill, shewn themselves entitled to the high and extraordinary power of a court of equity, which has been exerted in their behalf, is the question brought up for revision in this court? We are of opinion that they have not. There is no such evidence of their alleged claims as ought to have been produced to satisfy the conscience of a court of Chancery of their existence. Although they have stated with precision, the number, date, amount, and time of payment of a certificate of Poultney, Ellicott & Co. held by the appellant, the Union Bank of Maryland, yet, when describing their own certificates, of which it is to be presumed they had superior means of knowledge, as to Ann Poultney's [**14]  certificate, they give neither number, date, nor time of payment, and as to John M. Ellicott's, the date is given, but without the number or time of payment. Such omissions of themselves had a tendency to awaken suspicions as to the correctness of these claims. To warrant a court of Chancery in issuing an injunction, strong prima facie evidence of the facts on which the complainants' equity rests, must be presented to the court, to induce its action. In such a proceeding, the mere oath of the party as to the existence of a debt, of which he holds in his possession the written evidence, and makes no exhibition thereof, should not be regarded by the chancellor as any proof of the debt. Where the existence of the debt depends on a written instrument, whereof the complainant is presumed to be possessed, it should be exhibited with the bill, or a satisfactory reason assigned for its non-production. Upon this ground therefore, if all others were wanting, we think the order of the chancellor appealed from ought to be reversed. But there is another ground which strikes more directly at the root of this order, and would be fatal to it, no matter what exhibits had authenticated 

 [*333]   [**15]  the claims of the appellees. They, according to their own shewing, claim as creditors having a priority of lien on lands conveyed to trustees for their security; and that the executions which they sought by injunction to arrest, issued on judgments subordinate to their prior liens, and operating at most, if their rights be established, only on the equitable estate remaining in the grantors to their trustees, and which grantors were the defendants in the suits in which the executions in question were issued. A sale under such executions, therefore, could by no possibility defeat, or impair the prior liens of the appellees, but left them both at law and in equity, in the same condition, as if no such sale had ever taken place. There was then, no foundation for issuing an injunction at the instance of the appellees for the protection of their rights. If such a proceeding were sanctioned in this case, it would follow, that in no case where the mortgagee or person entitled to the prior lien, saw fit to oppose it in equity, could an equitable real estate be sold under a fi. fa. in the teeth of the act of assembly of 1810, ch. 160, expressly authorizing such sale. To concede such a [**16]  power to the court of Chancery, would in effect authorize it to nullify acts of the legislature almost at pleasure.
Believing that the injunction in this case improvidently issued from the Chancery court, the order appealed from is reversed with costs.
ORDER REVERSED.  

26 of 41 DOCUMENTS 

ZACHARIAH MACCUBBIN, et al, vs. CROMWELL S Ex'rs 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 157; 1835 Md. LEXIS 14 

December, 1835, Decided 

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

The present bill was filed by the appellants against John Cromwell, the appellees testator in his life time, and Philip Laurenson, ad'r. de bonis non of David Whelan, on the 28th of October 1828; praying an account of the personal, and of the rents and profits of the real estate of Zachariah Maccubbin the elder, the ancestor of the complainants, which came to the hands of the said Cromwell and Whelan, under, and virtue of a deed to them from the said Maccubbin, executed on 15th of November 1809, and that the amount found due upon such account, should be paid to them.

A full statement of the pleadings of the case, is extracted from the opinion of this court as follows:--

The appellants allege, that Zachariah Maccubbin, late of Baltimore county, deceased, the ancestor of the appellants, being seized in fee simple of a large and valuable real estate situate in Baltimore county, and possessed of a large and valuable personal estate, on the 15th of November 1809, made and executed a deed of bargain and sale, of all his estate, both real and personal, to the said John Cromwell, and a certain David Whelan, (since deceased) for the consideration therein [**2]  mentioned, which said deed although absolute on its face, was intended to be a deed of trust for the benefit of his children, all of whom except Sarah, the wife of David Whelan, were then minors--that the said deed was acknowledged and recorded upon the 22d day of the same month, and that the said Maccubbin departed this life in the year 1810. The appellants in their bill further allege, that upon the death of the said Zachariah Maccubbin, the said John Cromwell and David Whelan, trustees as aforesaid, entered upon, and took possession of the estate, and property so conveyed to them, both real and personal, and held and enjoyed the same, and the rents and profits thereof, for a considerable time, to wit, for about two years, and that the said Cromwell, and Whelan, sold the whole of the said personal estate, and a part of the said real estate, to the amount of about $ 5500, and that the said Cromwell and Whelan collected debts due to the said Zachariah Maccubbin, to a large amount, as they have been informed and believe to be true, for which the said Cromwell and Whelan in the life time of the said Whelan, and the said Cromwell since the death of the said Whelan have never accounted.  [**3]  They further allege, that the said John Cromwell as surviving trustee as aforesaid, is indebted to them as the cestui que trusts, for whose use and benefit the said deed was made in a very large sum of money, for the rents and profits of the said estate, the proceeds of the aforesaid sales, and the amount of collections so made by them as aforesaid. The bill then prays, that the said John Cromwell, and Philip Laurenson, administrator de bonis non of David Whelan, may set forth and render, a true and perfect account of all and singular the personal estate of the said Zachariah Maccubbin, deceased, and of the rents, issues and profits of his real estate, which came to the hands and possession of them, the said Cromwell and Whelan, in the life time of the said Whelan, and of him the said Cromwell since the death of the said Whelan, and how, when, in what manner, and for what amount, the same has been disposed of, and what part thereof remains, and where and what amount of debts, were collected by them the said Cromwell and Whelan, or either or which of them, and that the said John Cromwell and Philip Laurenson administrator as aforesaid, may pay over to them, what upon such account shall [**4]  appear to be due, and for general relief.

The defendant Cromwell in his answer denies, that he ever accepted said deed, or any interest or estate therein. That he ever took possession of the real estate to the value of one cent, or that he ever directly or indirectly interfered with, controlled, or directed the management thereof, or of any part thereof. He alleges that he never had possession of any part of the personal estate, and that the same was possessed and enjoyed, by the family of the said Maccubbin in common. That he never considered himself as having any thing to do with the said estate, but that the same was managed by the said David Whelan for the benefit and support of the family.

Bland Chancellor, on the 10th of February 1834, decreed an account as against the administrator de bonis non of Whelan; but dismissed the bill with costs as to Cromwell's executrix, upon the ground, that there was not sufficient evidence, that he had ever assented to the deed, and undertaken to act as trustee.

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

DISPOSITION:
Decree reversed, with costs in both courts.  

HEADNOTES:

The statute of Frauds and Perjuries does not provide that trusts shall be constituted by writing; but that they shall be proved by some writing signed by the party who creates them, and it is not material that the declaration of the trust be signed at the time of its creation.

So where a deed was absolute on its face, a trust may be engrafted upon it, provided it can be established aliunde, by competent written evidence.

A trust may be manifested and proved to exist, by an answer in Chancery; or by a letter, note, or memorandum in writing, promising to execute the trust.

The 8th section of the statute of Frauds, excludes from its operation trusts and confidences, arising or resulting by the implication or construction of law.

Upon a bill to enforce a trust alleged to have been created at the time of the execution of a deed, for land absolute in its terms, in relation to property conveyed by it, the object and design of the trust was admitted by the defendant in his answer, who denied that he ever accepted the trust. Held, that this was sufficient evidence to establish it.

The duties and liabilities of a trustee, cannot be imposed upon a man without his assent or against his will; but where one is appointed trustee, (even against his consent) and, with a knowledge of such appointment, interferes with the trust property, in such a manner, and to such an extent, as can be accounted for upon no other ground, than an acceptance of the trust, such interference will be sufficient proof of his acceptance, and subject him to all the responsibilities of a trustee, in the same manner as if the office had been originally expressly accepted.

A deed which purports to have been made and executed, for divers good and valuable causes and considerations, and also in consideration of the sum of ten dollars lawful money of the United States to the grantor in hand, paid by the grantee, is legally operative as a deed of bargain and sale.

Where the trust and confidence reposed in trustees is joint, a separate execution of it by either trustee, without the participation of the other, and with his concurrence and consent, is a breach of trust for which he will be held responsible.

Where one trustee delegates to another interesting and important duties of the trust, and under such circumstances funds have been wasted, he is held liable to account to the parties injured.

Where two trustees have united in a receipt for money, and one of them wishes to escape responsibility, upon the ground that the other trustee in fact received the money, his allegation, in answer to a bill filed against him for an account, will not effect that object. There is a presumption in such case, that the money came to the hands of both, which must be repelled by proof.  

COUNSEL:
JOHNSON, and J. SCOTT for the appellants, contended--

1.  [**5]  That the evidence abundantly established the fact of Cromwell's participation in the trust. His concurrence in the advertisement, attending the sale of the property, and joining in conveyances of it, prove this beyond controversy, and render his refusal to do so, when it was first created, of no avail. Maccubbin vs. Cromwell, 2 Harr. and Gill 444. In truth it may well be doubted, when a party is named as trustee in a deed, whether he can discharge himself from the obligations it imposes, by matters in pais. It may in such a case be necessary, that he disclaim by deed, or by proceedings in Chancery, for as the deed creating the trust, is recorded, and thus notice given of it to the public, the act of repudiation, should have equal publicity. Maynard vs. Maynard, 10 Massa. Rep. 456. 12 Massa. Rep. 461. Jackson vs. Dunlap, 1 Johns. Cases 114. Wilt vs. Franklin, 1 Binney 502. Townson vs. Tickell, 5 Serg. and Lowb. 219. The deed made them co-trustees, and the refusal of Cromwell, if he did refuse, destroyed their powers under it, and consequently the subsequent acts of both, make them trustees for the complainants, independently of the deed.

2. The absence of a written declaration [**6]  of the trust is not material, no consideration having passed from the grantees, they became trustees for those for whose benefit the deed was made. 2 Thos. Coke 699 (top.) The character of the deed is admitted by the answer, and the defence placed upon an alleged refusal to accept the trust. Not that a trust was not created, but that the defendant is not liable because he refused to act, and consequently the only question is, did he act, or not. As to the extent of the defendants responsibility, that is not now perhaps to be decided. The question now is, should he not be compelled to account, and that he must do, unless the court should consider him wholly absolved from responsibility.

MAYER for the appellee insisted,

1. That John Cromwell did not assume the trust as is asserted by the bill. It is true, he joined in certain conveyances, but in doing so, he only did, what a court of Chancery would have compelled him to do. The title had been cast upon him, without his consent, and in executing the deeds therefore, expense was saved the parties concerned. A trust cannot be imposed upon him by an act, which he could not escape doing, and from which no voluntary purpose of assuming [**7]  the duties of a trustee can be inferred.

2. The evidence shows that Cromwell in the first instance, rejected the deed. This stripped him of the character of trustee, which could not afterwards be assumed by an act in pais, and especially he could not by such act, become united in that capacity with Whelan. A deed to be perfect, requires the assent of the grantee, and must be delivered in the life time of the grantor.

3. That there is no evidence of a trust of any description. Such a character does not necessarily result from a deed voluntarily made and without consideration; and to engraft a trust, in such a case a declaration in writing is necessary. 7 Bac. Abr. title (Trust) 92, 125, 138.

4. The deed in the most favorable point of view, creates a resulting use, and consequently, the property devolved upon the family of the grantor precisely as if no conveyances had been executed. Notwithstanding the deed, the property was completely and absolutely the property of the grantor and his heirs. The grantees had no control over it, and consequently cannot be held responsible for it.

5. If, however, Cromwell is to be regarded as a trustee, he cannot be held answerable [**8]  for the acts of his co-trustee Whelan. 2 Fonb. Eq. ch. 7, sec. 5. The rule that each trustee shall be liable only for his own acts, has not been disturbed by the case of Ringgold vs. Ringgold, 1 H. and G. 82, as in that case, the object of the trust principally was investment, which it was the business of both trustees to attend to.

6. The answer is responsive to the bill, and denies all the allegations going to fix on Cromwell the character of a trustee, and there is no evidence to overcome it. There being no trust in writing, the answer is conclusive. Hampton vs. Spencer, 2 Vernon 287, 288. Cottington vs. Fletcher, 2 Atk. 155. Ringgold's case, 1 H. and G. 82.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J. and STEPHEN, ARCHER, CHAMBERS, and SPENCE, Judges.  

OPINIONBY:
STEPHEN 

OPINION:

 [*162]  STEPHEN, Judge delivered the opinion of the court.
This is an appeal from so much of the decree of the court of Chancery passed in a cause, wherein the appellants were complainants, and the appellees were defendants, as dismissed the complainants bill against Urath Cromwell executrix of John Cromwell, deceased.
The Chancellor dismissed the complainants bill as against the defendant [**9]  Urath Cromwell, who, on the death of John Cromwell, was appointed his executrix, and made a party to the suit, with costs; on the ground, that there was no sufficient evidence to prove that John Cromwell ever assented to the deed, or undertook to act as trustee, as charged in the complainants bill.
There are three questions, which necessarily claim the attention of the court in the decision of this case.
The first relates to the character of the deed, which was executed by Zachariah Maccubbin in his life time, and by which he conveyed all his estate, both real and personal, to John Cromwell and David Whelan, herein before named. The deed upon the face of it, is absolute, and expresses no trust 

 [*163]  or confidence of any description. The question then arises, as to the kind of proof, by which the alleged character of the deed can be ascertained and established, that is to say, whether although absolute upon its face, it was not in reality a deed of trust, by which Cromwell and Whelan were constituted trustees, and clothed with the fiduciary character, charged by the complainants in their bill, and by what sort of evidence this fiduciary character [**10]  is to be established, and fixed upon them.
The second relates to the sufficiency of the proof, to charge Cromwell with the acceptance of the trust; and the last, to the extent of his responsibilities, if it should satisfactorily appear, that he assumed upon himself, the execution of the trust, with which it was the intention of the deed to invest him.
It must be recollected, that the act, commonly called the statute of frauds and perjuries, does not provide, that trusts shall be constituted by writing; but that they shall be proved by some writing signed by the party who creates them. See Willis on Trustees, 10 Law Library 21; where it is said, "it is not considered requisite that such trusts should be constituted, but merely that they must be proved by some writing signed by the party who creates them; which as the statute does not specify any time, will be sufficient, though anterior, or posterior in date to the original transaction." It was not necessary then, that the trust in this case should have been declared in the deed, but it will be sufficient, if such trust can be manifested and established aliunde, by competent written evidence of its existence. The 7th [**11]  section of that act provides, "that all declarations or creations of trusts, or confidences, of any lands, tenements or hereditaments, shall be manifested or proved by some writing, signed by the party, who is by law enabled to declare such trust, or by his last will and testament, or else shall be utterly void, and of none effect." The 8th section excludes from the operation of the statute, trusts and confidences arising or resulting by the implication or construction of law. That a trust may be 

 [*164]  manifested and proved to exist, by an answer in Chancery, or by a letter, note, or memorandum in writing, promising to execute the trust. See 10 Law Library 21, where the author says--"But as no peculiar form or solemnity is prescribed for the creation or declaration of trusts, and as the disposition of them is guided by courts of Equity, according to the presumed intention of the parties, it is by no means necessary that a declaration of a trust should be by deed; but a trust may be shewn to exist, by a letter, note, or memorandum in writing, promising to execute a declaration of trust, by a bond to perform the trusts of a conveyance, though the trust be not stated [**12]  in the bond; by an answer in a suit in equity confessing a trust; by a recital in a deed, or by any other written declaration, that a purchase was made with trust money, or the money of another, or by any writing, though without seal or stamp, if it sufficiently indicate an intention that a trust should subsist. Although then, the deed in this case is absolute upon its face, the object and design of it are explicitly and distinctly admitted by the defendant Cromwell in his answer, and he only endeavours to shield himself from the responsibilities of a trustee, by denying that he ever accepted the trust, or ever in any manner interfered with the property, mentioned in, or conveyed by the deed in the character of a trustee. Considering the admissions in the answer, sufficient to establish the trust, and prove the object and intention of the deed.
The next question to be considered and decided by this court is, whether, notwithstanding the parol or verbal disclaimer of the trust by Cromwell, and his refusal to accept the same, he has so interfered with the trust property, as to make him amenable to the cestui que trusts, for any loss or injury which they may have sustained [**13]  by the waste, improper management, or misapplication of the trust estate. It is true, the duties and liabilities of a trustee cannot be imposed upon a man, without his assent or against his will, but it is equally clear, that where he is appointed a trustee, and with a knowledge of such appointment, interferes with the trust property 

 [*165]  in such a manner and to such an extent, as can be accounted for upon no other ground, than an acceptance of the trust, such interference will be sufficient proof of an acceptance, and will subject him to all the responsibilities of a trustee, in the same manner as if the office had been expressly accepted. In the 10th Law. Lib. 18, it is said, "An acceptance, or such a degree of interference with the trust property, as can be construed into an acceptance of the trust, is also necessary to constitute a trustee." Although then Dr. Cromwell, when he was first informed of the existence of the deed, and the object of it, declared verbally to his co-trustee, and to Mr. Winchester (whom he professionally consulted as to the responsibilities arising from an acceptance of the trust) that he would not accept it, and desired his co-trustee [**14]  to destroy the deed, yet after he found that the deed had been put upon record, and notice had been thereby given to the world of the existence of it, he is found interfering with the management, sale and disposition of the trust property, in a manner which can only be accounted for, by imputing to him an abandonment of his original purpose and intention to decline the trust, and an acceptance of it upon more mature deliberation. This we think is the only construction which can in fairness and propriety be given to his conduct, in the various transactions, in which we find him afterwards engaged. On the 20th February 1810, we find him uniting with David Whelan in a deed to George Smith, by which they conveyed to said Smith in fee simple, a parcel of land, part of the trust property, in which deed, they acknowledge to have received the consideration money, amounting to the sum of $ 500, and by which, they convey all their estate and title therein and thereto, to the said Smith. This deed was by them respectively acknowledged and recorded according to law; which we think a satisfactory, if not a conclusive recognition by Cromwell of his acceptance of the trust; because [**15]  it purports to transfer all his estate and interest in the land thereby conveyed, and if he did not consider himself clothed with all the rights and powers of a trustee, it cannot readily be perceived, what estate or 

 [*166]  interest in the property he had to convey. After this solemn recognition of his fiduciary character and capacity, after suffering himself to be represented to the world in that character upon the public records of the country, we think he is estopped and precluded to deny his acceptance of the trust; and that he is strictly chargeable with all the consequences and responsibilities, which would have resulted from an express acceptance of it. If further evidence were necessary to prove his acceptance of the trust, it may be found in the deed, which he executed to Thomas Whelan jointly with his co-trustee David Whelan, transferring to Thomas, a negro girl named Rachel, a part also of the trust property, in which they acknowledge jointly to have received the consideration money; and also in the advertizement of the sale of the real and personal estate, signed with the names of Cromwell and Whelan, at which sale it is in proof Cromwell [**16]  was present, and actively participated in the conduct and management thereof. After this clear and decisive evidence, which we think defies any other construction, than that of his having accepted the trust, we deem it wholly unnecessary to accumulate further proof upon that branch of the subject, and shall now pass to the consideration of an objection, which was adverted to in the argument, as to the legal effect and operation of the deed, by which the trust was created. The deed, upon the face of it, purports to have been made and executed, for divers good, and valuable causes, and considerations, and also in consideration of the sum of ten dollars lawful money of the United States, to him in hand paid by the said Cromwell and Whelan. This consideration, it cannot be denied, was amply sufficient to give legal effect and operation to the deed, as a deed of bargain and sale, and whether the consideration therein mentioned, was paid by Cromwell or Whelan, is an enquiry not essentially material to its validity, for although it was in the first instance paid by Whelan, yet upon the subsequent acceptance of the trust by Cromwell, the payment would enure to his [**17]  benefit, and have the same effect in giving operation to the deed, as if it had been made by Cromwell 

 [*167]  himself. In 1 Bac. Abr. 470, title "Bargain and Sale," we find the principle stated to be, that a payment of the consideration by one of the bargainees, is sufficient to make the land pass to all. He says, "A by deed indented and enrolled, in consideration of one hundred pounds paid by B, bargains and sells lands, to B, C and D, parties to the indenture; in this case the land passeth to all; for although the valuable consideration be expressed to be paid only by one, yet it must be intended that it was paid by all, that the land may pass to all according to the meaning of the parties; and consideration given by one, is sufficient to convey the land to all." In support of this principle, 2 Inst. 672, is referred to. The last subject which will engage our attention in the consideration and decision of this case, is the liability of Cromwell, under the circumstances and proof in the cause, to a decree to account. In the investigation of this part of the case, it is not necessary to ascertain or to define with precision, the extent of his responsibility [**18]  in his character of trustee, but simply to ascertain, whether he has so conducted himself in performing the duties of the trust, as to entitle the complainants to call upon him to account. The extent of his liability is not a matter now in question, and upon that subject it is not our intention at present to decide. It is the duty of trustees, faithfully to execute their trusts, according to the terms and conditions of them, and agreeably to the intention of the parties by whom the trusts have been created; and the legal presumption is, that they have so conducted themselves, unless the contrary is fully and satisfactorily evinced. In Willis on Trustees to be found in 10 Law. Lib. 81, in treating of the responsibility of trustees, it is said, "If in any other manner in the management of the trust property, they be guilty of fraud or negligence, want of caution, misrepresentation, mistake (as where a trustee mistaking his power, sold stock without authority) or concealment, or wilful misconduct, or misapplication, or omit doing what is plainly beneficial for the estate; notwithstanding the utmost latitude be given them for conducting the trust, they will be guilty of a breach [**19]  of trust, 

 [*168]  and a court of Equity will compel them to reimburse the cestui que trust for any loss he may thereby have sustained." Again, in page 92 of the same book it is said, "where several trustees leave the entire performance of the trust to one co-trustee, they are all equally responsible for duties they have thus delegated to him." It is not then sufficient to exempt Dr. Cromwell from all liability as a trustee, if with his concurrence and consent, the duties of the trust have been exclusively performed by his companion; on the contrary, according to the above mentioned principle, he must be held accountable for the conduct and management of his co-trustee, to whom he has thought proper thus to delegate his own power, in the same manner, and to the same extent, as if they had been executed by himself. The trust and confidence reposed was a joint one, and a separate execution of it by either, without the participation of the other, and with his concurrence and consent, was a breach of trust, for which he ought to be held responsible. The management of the great and interesting matters of the trust, seem to have been left to his co-trustee, although he joined [**20]  in the advertizement of the greater part of the personal property of Zachariah Maccubbin, and participated in the sale, yet the notes were permitted to be taken to Whelan and the money to be paid to him. He would then seem to have delegated his most interesting and important duties to his co-trustee, and if under such circumstances, the funds have been wasted, he ought to be held to account. It has already been remarked, that the extent of Dr. Cromwell's liability in his character of trustee, is not now the subject of enquiry; the only object to which the attention of the court is at present invited, is, to ascertain whether the complainants have established by their proof such a case, as entitles them to a decree to account. It only remains to remark upon one other transaction, in which Cromwell and Whelan appear to have been jointly concerned, to prove in the most satisfactory manner their right to such a decree.
In the deed from Cromwell and Whelan to George Smith, for the land, purchased by Smith from Maccubbin in his life time, 

 [*169]  they jointly acknowledge the receipt of the sum of five hundred dollars, the amount of the consideration [**21]  money for said purchase. The acknowledgment is at least prima facie evidence, that the money was received as stated, and is sufficient to charge Cromwell, as well as Whelan with the amount, unless he establishes by proof that the money was received by Whelan alone; of such fact, there is no proof in the record, save only the general denial of Cromwell in his answer, which, it is held, is legally incompetent for such a purpose. In 5th Johns. Chan. Rep. 294, Chancellor Kent says, "The joining in the receipt of the personal property, is presumptive evidence that the money came equally into the possession, or under the control of both the trustees, and it would require direct and positive proof, to rebut that presumption. Ld. Eldon in Brice vs. Stokes, 11 Ves. 324, declared, that such a presumption arose from the circumstance of joining in the receipt, and that it was incumbent upon the trustee to destroy the presumption by proof, if he meant to exonerate himself. There is no proof in this case, to counteract the language of the receipt. There is no evidence out of the joint answer of the defendants, that the monies did not come to the hands [**22]  of both of them; and I apprehend, that the answer is no evidence of such a fact set up in avoidance of, and in contradiction to, the language of the receipt by the party himself.
In this case the bill charged the receipt of the monies by both the guardians, and the answer in that respect was strictly responsive to the bill, and yet it was held incompetent to countervail the language of the receipt--so in page 296, of the same book the Chancellor says. "It may be laid down as a principle, that if two guardians or other trustees join in a receipt for monies, it is prima facie, though not absolutely conclusive evidence that the money came to the hands of both; that one trustee may show by satisfactory proof, that the joining in the receipt was necessary, or merely formal, and that the monies in fact were paid to his companion; that without such satisfactory proof, he must be liable to the cestui 

 [*170]  que trusts; and that if the monies were in fact paid to his companion, yet if they were so paid by his act, direction, or agreement, and when he had it in his power to have controlled or secured the money, he is, and ought to be responsible." We think then, that there is sufficient [**23]  proof in this case, to entitle the complainants to a decree, to account against the executrix of Dr. Cromwell, and that the decree of the chancellor dismissing the complainants bill as to her, ought to be reversed with costs in both courts, and the cause sent back for further proceedings.
Decree reversed accordingly, with costs in both courts.  

27 of 41 DOCUMENTS 

JAMES S. AND JOHN WEVER vs. BALTZELL & DAVIDSON, GARNISHEES OF MCCAFFREY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 335; 1834 Md. LEXIS 30 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was an attachment on warrant, issued under the act of 1795, ch. 56, by the appellants, to recover the amount of two notes drawn by McCaffrey, in their favor for the sums of $ 322 06, and $ 210, one at thirty, and the other at sixty days from February 9th, 1832. The attachment issued on the 14th of April, 1832, on the following affidavit of one of the appellants, "personally appeared before me, the subscriber, a justice of the peace, &c., James S. Wever, a citizen of the State of Maryland, and made oath, that Bernard McCaffrey, is justly and bona fide indebted unto him, and his partner, John Wever, merchants, trading under the firm of James S. & John Wever, in the sum of, &c., and at the same time produced to me, &c."

The appellees, the garnishees appeared, and pleaded non assumpsit by McCaffrey, and nulla bona, to which there were issues.

It was admitted at the trial that the notes were signed by McCaffrey, and that when the affidavit was made, and the attachment issued, both the plaintiffs were citizens of the State of Maryland, doing business in the city of Baltimore, and residing therein; and that the garnishees held a fund [**2]  in their hands belonging to McCaffrey.

The defendants then prayed the court to instruct the jury, that the plaintiffs are not entitled to recover, because the affidavit on which the attachment issued, does not state on its face, that John Wever, one of the plaintiffs, and partner of the said James S. Wever, is, or was a citizen of the State of Maryland, or of the United States, or resident therein; which instruction the court (PURVIANCE, A. J.) gave, and the verdict and judgment being for the defendants, the plaintiffs appealed.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

J & W as creditors of M, a non-resident, sued out of the county court an attachment against the goods, chattels, and credits of M, which was laid in the hands of B, who appeared, pleaded non-assumpsit by M, and nulla-bona as to himself. At the trial of the issues upon those pleas, it appeared in proof, that J and W were citizens of Maryland, but because the affidavit on which the attachment issued, did not state that both of the plaintiffs were citizens of the State of Maryland, nor of the United States, nor residents therein, IT WAS HELD, that the plaintiff could not recover.

Under the act of 1795, ch. 56, sec. 1, to warrant the issuing of an attachment, the affidavit of the plaintiff must state that he is a citizen of this State, or of some other of the United States.

Under the act of 1825, ch. 114, the jurisdiction of the courts, upon the subject of attachments to compel appearances, is extended to any inhabitant or inhabitants, resident or residents of any part of the United States, whether of one of the States, or of the District of Columbia, or other territories, and who by the existing laws of this State, may be entitled to sue out mesne process; therefore in order to give jurisdiction, the plaintiff must be brought by his affidavit within the class of persons described in this act.

Under our attachment law, our courts exercise a limited jurisdiction, and their right to exercise it depends upon the conformity of the original proceedings with the acts of the legislature; advantage of the want of jurisdiction may be taken by the garnishee at the trial.  

COUNSEL:
McMahon and Lloyd, for the appellants.

The act of 1795, ch. 56, does not require that the citizenship of the creditor should appear in the affidavit. That fact need not appear to the magistrate, and his certificate to that effect is of course unnecessary. The only proof to be made before that officer, is the existence of the debt, and the absconding, &c., of the debtor. Jurisdiction it is true must exist at the commencement of the proceeding, but there is no reason, why the fact which confers it, may not be subsequently disclosed. In the federal courts, it is sufficient if the jurisdiction appears at any time before the trial.  [**3]  It need not be apparent in the original writ. 2 Peters S. C. R. 556. Nor is it indispensable that the subsequent pleadings should disclose it, it being sufficient if it appear by the proof. 1 Kent Com. 324. 10 Wheat. 188. 4 Harr. and McHen. 291. 2 Wash. C. C. R. 382. But at all events, the affidavit, which is the institutory process, need not show the jurisdiction. It may be shown in the declaration, and if omitted, may be introduced by amendment. The affidavit was only required to prevent abuse of the process, and if it stated the fact of citizenship, would not be proof of it. Mandeville vs. Jarrett, 6 Harr. and Johns. 497. The certificate of the justice cannot be viewed as a part of the pleadings, for if so, it would be amendable, as all pleadings are.

In the case of Shivers vs. Wilson, 5 Harr. and Johns. 130, the plaintiff failed to recover, not because of the defectiveness of the affidavit, but because he failed or refused to prove the necessary fact at the trial. The defect was in the proof, and not in the statements of the affidavit. And in the case of Yerby vs. Lackland, 6 Harr. and Johns. 446, the court referred to the facts as they appeared in the evidence, from which [**4]  it is fairly inferable that if the necessary fact had been found there it would have been sufficient.

2. But admitting that the right to the process of attachment should appear in the affidavit, still the plaintiffs in this case are entitled to recover, as the certificate of the justice shows that one of them is a citizen of the State.

The principles which have governed the federal courts, in regard to suits between citizens of different States should have no influence upon the construction of our attachment laws. In order to entitle parties to sue in the federal courts, all the plaintiffs must be non-residents of the State of which the defendant is a citizen. If any of them are citizens of the same State with the defendant, the object of giving jurisdiction to the courts of the United States does not exist, which was to protect non-residents from the apprehension that the authorities of the respective States might adopt a course of legislation partial to their own citizens, in their controversies with foreigners. But if any of the plaintiffs reside in the same State with the defendant, this danger cannot exist, because laws aimed at the interests of the non-resident plaintiff,  [**5]  would also prejudice the resident plaintiff; which if there be any ground for the apprehension, would in all such cases ensure impartiality.

But the object of our attachment laws was to protect the rights of our own citizens, and the citizens of other States, and there is no reason why they should be deprived of the benefit of those laws, by the circumstance of their being associated with a foreign partner or creditor. It is surely more reasonable that the citizen creditor should extend the privilege to his foreign associate, than that his connection with the latter should deprive him of it.

The act of 1825, ch. 114, extends the right to sue out an attachment, to residents or inhabitants of the districts and territories, as well as to the citizens of the States.

Johnson, for the appellees.

The question is, whether the affidavit, on which the attachment issued, must not show that all the creditors are not citizens, or parties entitled to the benefit of the process. In the exercise of this power, the jurisdiction of the courts is limited, and must appear by the proceedings. 3 Cranch. 262. 1 Wheat. 91. 5 Harr. and Johns. 130. 6 Harr. and Johns. 446, 447. Unless the [**6]  jurisdiction appears in this way, the proceeding may at any time be arrested on motion. If it does so appear, there must be a plea in abatement. In the case of Mandeville vs. Jarrett, 6 Harr. and Johns. 497, it was decided, that the fact of citizenship must be proved under the plea of non-assumpsit; and if so, it must be alleged, as the proof need never go beyond the allegations. If the fact of citizenship may be proved, without a corresponding allegation, then all the other requisites may likewise be proved without being averred; such as that the party made an affidavit at all, and that the cause of action was produced to the magistrate. In truth, the parties might go to trial without any allegation on either side, and the cause submitted to the jury without an issue, for them to find, or guide for the court in deciding upon the relevancy of the testimony.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*339]  BUCHANAN, Ch. J., delivered the opinion of the court.
By the act of 1795, ch. 56, sec. 1, it is provided, that "if any person whatsoever, not being a citizen of this State, and not residing [**7]  therein, shall, or may be indebted, unto a citizen of this State, or of any other of the United States, or if any citizen of this State, being indebted unto another citizen thereof, shall actually run away, abscond, or fly from justice, or secretly remove him, or herself, from his or her place of abode, with intent to evade the payment of his or her just debts, such creditor may in either case, make application to any judge, justice, &c.," and that "on the oath, or affirmation (which oath, or affirmation is prescribed by the act,) of such creditor, made before any judge, &c." the said judge, justice, &c., shall issue his warrant to the clerk to issue an attachment against the lands, tenements, goods, chattels, and credits of the debtor; upon the receipt of which warrant, together with the proofs on which it was granted, the clerk is required to issue an attachment. The third section requires that upon the issuing of every such attachment, there shall be issued therewith, a writ of capias ad respondendum against the defendant, and that a declaration or short note expressing the plaintiff's cause of action shall be filed, and a copy thereof sent with the writ, to be set [**8]  up at the court house door by the sheriff. And the fourth section provides, that the garnishee may plead in behalf of the defendant, any such plea, or pleas, as he might have pleaded if he had been taken under the writ of capias ad respondendum, and had appeared thereto. It is not every creditor, that under that act, would be entitled to the process of attachment, nor under all circumstances; but such a creditor only, as is therein described: a citizen of this State, or of some other of the United States.
Not only was the remedy by attachment confined to a citizen of this State, or some other of the United States, 

 [*340]  but being a privilege extended to that description of creditors only, it was necessary that a plaintiff, seeking the benefit of that peculiar privilege, should be stated in the proceedings to be a citizen of this State, or of some other of the United States, to bring the case within the purview of that act, and thus to give jurisdiction to the judicial tribunals of the State, which they had not in the case of a creditor of any other description; and being thus restricted and limited in their jurisdiction, could only entertain a case brought within [**9]  the pale of the act, by describing the plaintiff upon the face of the proceedings, to be the peculiar creditor entitled by its provisions to the process of attachment; the question of jurisdiction in all cases of special and limited jurisdiction, depending upon the case made and presented by the proceedings. Hence the necessity in proceedings under that act for describing the plaintiff as being a citizen of this State, or of some other of the United States, and the defendant as an absconding citizen of the State, or as not being a citizen of the State, and not residing therein; (they being alone, the description of persons embraced by the act, except in cases of attachments founded upon judgments, in relation to whom the process of attachment was authorized, and jurisdiction conferred on the courts of the State,) to give jurisdiction by presenting on the face of the proceedings, a case within the provisions of the act. And this seems clearly and peculiarly to be required by the very nature of the proceedings in attachment, under the several laws of this State. In the language of the act of 1795, ch. 56, sec. 1, "such creditor may make application to any judge, justice,  [**10]   &c." and on the oath, or affirmation of such creditor, made before any judge, justice, &c." the said judge or justice, &c. shall issue his warrant to the clerk to issue an attachment, &c. Such creditor: what creditor? why a citizen of this State, or of some other of the United States, the creditor before described in the act. The judge, or justice, therefore, is only authorized under that act, to grant his warrant for issuing the attachment in the case of such a 

 [*341]  creditor. And the oath, or affirmation of the creditor, accompanied by the cause of action, (which is also required to be produced,) being alone the ground or evidence upon which the warrant is issued, the citizenship of the plaintiff, and also of the defendant, or the non-residence of the defendant, as the case may be, must be stated in the oath or affirmation, otherwise, there would be nothing to show the jurisdiction or authority of the judge or justice, for issuing the warrant; the declaration, or short note required to be filed, upon the issuing of the capias ad respondendum against the defendant, being subsequent to the warrant for issuing the attachment, furnishing of course, no [**11]  ground or authority for granting the warrant, and its only office being to express the plaintiff's cause of action, and that after the warrant has been issued. And if there be no foundation laid to support the warrant, what ground would there be for the attachment (the fruit of the warrant) to rest upon. Again, under the act of which we have been speaking, and the act of 1715, ch. 40, sec. 3, to which it is a supplement, on the return by the sheriff of the attachment, and of non est inventus to the capias ad respondendum, if the defendant should not then appear, nor the garnishee, in whose hands the goods, &c. of the defendant were attached, to show cause to the contrary, the court is required to condemn the goods, &c. attached. But unless the citizenship of the parties, or in relation to the defendant, his not being a citizen of the State, and not residing therein, (as the case may be,) appears upon the face of the proceedings to show the authority of the judge or justice, to grant the warrant upon which the attachment was issued, and to give jurisdiction to the court, (which can only be by a statement in the oath or affirmation of the plaintiff; which,  [**12]  with the production of his cause of action is the prescribed authority of the judge or justice for his issuing his warrant, and the only proof required,) the judgment of condemnation for any thing appearing in the record, might be at the suit of an alien, not embraced by the 1st section of 

 [*342]  the act of 1795, ch. 56, and to whose case, the jurisdiction of the courts of this State does not extend in proceedings under that section; but is limited to the description of persons therein mentioned. Without such a statement therefore, there could not be a judgment of condemnation, for the want of jurisdiction being given by the proceedings, and appearing in the record; no more than in the case of a petition, &c. in a court of limited jurisdiction. And it is no answer to say that the fact of citizenship, &c. may be proved at the trial, on the appearance and pleading by the garnishee. That is true, and to sustain the suit it must be proved. But if jurisdiction is not given to the court by the previous proceedings, the appearance and pleading by the garnishee cannot give it, and the proof and trial would be coram non judice, and judgment would be arrested on motion, after [**13]  verdict for the plaintiff. There can be no recovery against a garnishee in a case in which, for the want of jurisdiction appearing upon the record, the goods of the defendant could not have been condemned. A court that would be constrained to quash an attachment, for the want of jurisdiction being given by the proceedings on which it is founded, cannot entertain jurisdiction against a garnishee coming in under the same proceedings. The condemnation of the goods, and the recovery against the garnishee, are only different actions of the court in the same case, and if the case itself as stated, does not give jurisdiction for the purpose of condemnation of the goods attached, it cannot for the purpose of a recovery against the garnishee, on the evidence given at the trial, being only proof taken in a case not brought by any statement in the proceedings within the jurisdiction of the court.
We had supposed that this question had been settled by the decisions of this court. Shivers vs. Wilson, garnishee of Walker, et al., 5 H. & J. 130, was a case of attachment in which Shivers, the plaintiff, was described as being a citizen of the United States. Wilson, the [**14]  garnishee, appeared and pleaded non assumpsit, by Walker, 

 [*343]  et al. and nulla bona; and the court at the trial instructed the jury on the prayer of the garnishee, that the citizenship of the plaintiff was not sufficiently set forth in the attachment, and that the plaintiff was not entitled to recover, without giving evidence to the jury to satisfy them that he was a citizen of this State, or some other of the United States; as a man may be a citizen of the United States, but residing in the District of Columbia, or some one of the territories, and not a citizen of this State, or of any other of the United States, of which there was no proof. And on an appeal to this court by the plaintiff, against whom there was a verdict and judgment, the judgment of the court below was affirmed. It was supposed in the argument of this cause, that that case decides no more, than that it was incumbent on the plaintiff to prove that he was a citizen of this State, or of some other of the United States; and that such proof would have been sufficient without its being stated in the proceedings.
We do not so understand it; and it will be seen that [**15]  the judge who delivered the opinion of this court, asserts in the whole course of his argument, the necessity for setting out in the proceedings the citizenship of the plaintiff, according to the description given in the act of 1795, in order to give jurisdiction, and that the case must by the proceedings disclose itself to be within the limited jurisdiction,--and assimilates it to the decisions of the Supreme court, upon similar expressions in the constitution of the United States, and the judiciary act of Congress in relation to suits in the courts of the United States, between citizens of different states, the amount of the decision being that it must be both stated and proved. In Yerby vs. Lackland and others, garnishees of Beeding, 6 H. & J. 446, the same principle is recognized; though in that case, in addition to the insufficiency of the description of the plaintiff, to bring the case within the provisions of the act of 1795, ch. 56, he appears in point of fact to have been a citizen in the District of Columbia. And in Mandeville vs. Jarrett, 6 H. & J. 497, 

 [*344]  where the plaintiff is properly described as being  [**16]   a citizen of this State, proof also of his being a citizen of this State was held to be necessary.
Since then, the jurisdiction of the courts has been extended by the act of 1825, ch. 114; and by the first section of that act, it is made lawful for any inhabitant, or inhabitants, or resident, or residents, of any part of the United States, whether of one of the States, or of the District of Columbia, or other territories, and who by the existing laws of this State, may be entitled to sue out, and prosecute mesne process, to have, use, and prosecute the process by attachment. Not however extending the privilege to non-resident foreigners, but restricting it to inhabitants or residents, within the United States. The same necessity therefore, in order to give jurisdiction, still exists, for describing in the proceedings the plaintiff to be an inhabitant or resident of the United States, &c.; which before existed for describing him to be a citizen of this State, or of some other of the United States. In this case the plaintiffs appear to have been partners in trade, and the affidavit is made by one of them only, in which he is described as being a citizen [**17]  of this State, without any notice being taken of the residence of the other; though it appears by admissions at the trial, that he was also a citizen of this State.
The garnishees appeared and pleaded non-assumpsit by the defendant, and nulla bona; and the court below, on the prayer of the garnishees, instructed the jury that one of the plaintiffs not being stated in the affidavit to be a citizen of this State, or of the United States, or a resident therein, they were not entitled to recover.
The special privilege of suing out attachments, being confined to inhabitants, or residents within the United States, it cannot be extended to plaintiffs of any other description, without a violation of law, and a usurpation of jurisdiction. And seeing that jurisdiction cannot be taken in a case of attachment, unless it be given by a statement in the affidavit, that the plaintiff, if there is but one, is an inhabitant, or 

 [*345]  resident within the United States; so neither can it be taken when there are two or more joint plaintiffs, unless they are all stated in the affidavit to be inhabitants, or residents within the United States. Each must appear on the face [**18]  of the proceedings, to be entitled and competent to sue out the process of attachment to give jurisdiction of the case. That would be our construction of the act of 1795, ch. 56, if there was no other. But the act of 1825, ch. 114, in extending the privilege to an inhabitant, or inhabitants, or resident, or residents, of any part of the United States, clearly contemplates the same proceedings, in the case of two or more joint plaintiffs, as in the case of a sole plaintiff; and means, that where there are two or more plaintiffs, they must all be inhabitants, or residents within the United States. Here one of the plaintiffs having a joint interest with the other, is not stated in the affidavit to be an inhabitant, or resident within the United States. As to him then, the case does not disclose itself by the proceedings to be within the limited jurisdiction of the courts of this State, nor present him as a person entitled to sue out an attachment.
The question is not, whether the plaintiffs had a right to attach, if they had proceeded properly, but whether they had proceeded properly. We think they have not, and the judgment will be affirmed.  [**19]  
JUDGMENT AFFIRMED.  

28 of 41 DOCUMENTS 

SAMUEL MARFIELD vs. JAMES DAVIDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 209; 1836 Md. LEXIS 21 

December, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was an action replevin, brought on the 3rd January, 1834, by Samuel Marfield against James Davidson, for a negro boy, called Jacob Hill. The defendant pleaded non cepit, and property in himself, on which issues were joined.

At the trial of the cause, the plaintiff offered in evidence, that he sold the negro boy whom this action was brought to recover, to Elisha Lupton, on the following terms, to wit: that the said Lupton was to take the boy into his possession immediately, but that no title, or interest, was to pass to him, but was still to remain in the plaintiff, until the whole purchase money should be paid; that the amount of the purchase money was $ 225, which was secured by two promissory notes given by the said Lupton, bearing date about the 7th April, 1834, one of which was payable in sixty days, and the other in four months after date. That the first of said notes was taken up at maturity by said Lupton, who paid a small sum in cash, and gave two promissory notes in part renewal of, and in substitution for the said second note, which was then delivered up to him, and the said two substituted notes delivered to said Marfield,  [**2]  and by him retained for the balance due to him for the said negro boy by the said Lupton. That said two last mentioned promissory notes were due, at and before the impetration of the original writ in this cause, and are yet unpaid. It was also proved that Lupton has resided for some time past out of the city of Baltimore, in the town of Cumberland, in Allegany county, whereupon the counsel for the defendant objected to the competency of the evidence, above given in relation to the surrender of the said two first notes, to the said Lupton by the said Marfield, as no notice had been given to defendant to produce said notes, nor any effort made to obtain them from the said Lupton; and also objected to the competency of the evidence in relation to the giving of the said two last mentioned promissory notes, a part renewal of one of the first notes for the same reason, that the said two first notes were not produced, nor any notice given to the defendant to produce them. And the counsel for the defendant, also prayed the court to instruct the jury, that the plaintiff was not entitled to recover, which objection and prayer being sustained, and granted by the court, the plaintiff excepted [**3]  and brought this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Where a party had offered evidence, without objection of the consideration, amount, dates, and times of payment of two promissory notes, (not before the court) and then proposed to prove, that they had been surrendered to the drawer, the one upon being paid, and the other upon being substituted by two other notes given in lieu of it; upon objection to the proposed proof of the surrender, because they were not produced, and no notice had been given to produce them; held that the proof was admissible. Held also, notwithstanding a similar objection, that evidence of the substitution of the two last notes, for the one surrendered was likewise admissible.

To render the evidence of the surrender admissible as a general rule, the notes surrendered must have been produced, but where their contents are proved by consent, the identity of the notes given, and those surrendered, is as certainly established, as if they were present in court.

The admissibility of the proof of the substitution rests upon the same principle, that is, that evidence of the contents of the substituted notes, had been given without objection.  

COUNSEL:
DULANY, who contended, that no objection was taken to the purpose for which this evidence was offered, but as the court will perceive by reference to the bill of exceptions, two objections were made, both of which related to the competency of the proof.

1st. It was said, that although it had been proved that the two first notes had been surrendered up to Lupton, by whom they had been given, yet that this proof could not be received as competent to establish that fact without the adduction of the notes themselves, or a failure to produce them on the part of Davidson, the defendant, after due notice.

2d. That the two last promissory notes which were due and unpaid, and given for the balance of the purchase money of the boy, and which were held by Marfield, could not be adduced in evidence, and were incompetent for any purpose, because the two first promissory notes were not produced or their absence accounted for, in any other manner than by their having been surrendered to Lupton, the maker.

The great difficulty in this case is to find out the subject of dispute, the learned judge who tried the [**4]  cause, observed that the two first notes constituted a link in the chain of evidence, without which no progress could be made in the cause, but of what one fact necessary to the recovery of the plaintiff they were the best evidence, and which could be established by no inferior proof was not intimated, nor can I perceive it.

All that it was necessary for Marfield to establish, after the explicit proof which had been given of his contract with Lupton by a witness who was present, was that the purchase money for the boy had not been paid, this he attempted to do by producing two notes of Lupton's, proved to be for the balance of the purchase money, which were past due and unpaid, at the time he issued his writ in this cause. This completely made out his case, for it showed that the title to the boy was still in him and had never been conveyed away, for the payment of the whole purchase money was a condition precedent to the passage of the title to Lupton. Why then was it necessary to produce the two first notes, they formed no part of the evidence of the agreement; that was verbal, and all its terms expressly proved orally, by a witness who was present. The notes were afterwards [**5]  given in pursuance of and in execution of the contract; they were intended merely to secure the purchase money, the amount of which had been independently agreed upon, as well as all the other terms of the agreement. If the first notes had been present at the trial they would have manifested no material fact, but their own existence as instruments, then of no value, which had been in part paid, and in part superseded by the substitution of new notes, having as evidence an effect equivalent to their own. If Lupton had produced the first notes upon the trial of the cause, they would have given rise to the presumption that he had paid the whole purchase money, and this would have been the only effect of his possession of them. But can it be denied that this presumption might have been rebutted by the proof that although they had been surrendered, yet were they not paid, but that new notes were substituted in their place, and how can it be contended that if their presence and the possession of them by Lupton would have created a presumption merely, that might have been destroyed by the proof actually offered, that they were nevertheless better than that proof. This would surely be absurd,  [**6]  for the test of the best evidence is this, that if adduced it could not be contradicted by the evidence offered.

One thing is clear, that the two first notes constituted no part of the original contract between the parties, that contract in all its parts, was verbal, if then these notes are material evidence of any thing, they must relate to some fact connected with the execution of the agreement, in which case as instruments of evidence they possess no superior authority.

Parol extrinsic evidence, says Starkie, is admissible to prove a fact, by virtue of its own weight, notwithstanding the casual existence of collateral written evidence to prove or disprove the same fact, unless the written instrument or evidence be by law a contract, constituted the sole medium of proving the fact. 1 Starkie, Ev. 2d ed. 329, 390. 2 Starkie, 2d. ed. 570. This principle applies in general, when the document contains a mere subsequent memorial and recognition of the fact. 2 Starkie, 2d ed. 571. 7 Law Rep. 335. 4 Esp. C. 13.

If then the court were wrong in deciding that the evidence offered by the appellant in the manner stated in the bill of exceptions, was incompetent and could not be [**7]  received, they were certainly not right in instructing the jury that he was not entitled to recover.  

JUDGES:
Appeal submitted to BUCHANAN, Ch. J. and STEPHEN, ARCHER, CHAMBERS and SPENCE, Judges.  

OPINIONBY:
ARCHER 

OPINION:

 [*213]  ARCHER, Judge, delivered the opinion of the court.
The plaintiff had offered in evidence without objection, that Lupton, who was proved to be the purchaser of the boy in controversy, had for the purchase money given two promissory notes; he also gave in evidence, the date of the respective notes and the times when payable, all without objection; and then offered to prove the surrender up of these notes. The one in consequence of payment, and the other in consequence of the substitution of two other notes which were due at the time of the institution of the suit and then unpaid.
To the evidence of the surrender of the two first promissory notes objection was taken because they were not produced, and no notice had been given to produce them.
To the evidence of the substitution of the two last notes for one of the surrendered notes, objection was likewise taken for the same reason.
The court held both objections to be valid and excluded the evidence.
The plaintiff [**8]  having offered evidence without objection, of the amount, dates and times when payable, of the two first promissory notes, and the consideration for which they were given, no objection could be urged to the admissibility of evidence in relation to the surrender as a fact, than could have existed against such evidence, had the notes been actually produced. Evidence had been permitted to go to the jury, which dispensed with the necessity of producing the 

 [*214]  notes or of giving notice to produce them. To render the surrender, evidence, the notes in general would have to be produced, because the witness could not speak of them until they were before the court and jury, and because their identity could alone be established by their production. But here they are by consent offered to the jury, and their contents proven by consent; and being so proven, the identity of the notes given, and the notes surrendered, are just as certainly established, as if the notes were present in court; we therefore think, the court were in error in rejecting the evidence of the surrender of the two first notes.
The same principles will likewise render admissible the evidence offered of the substitution [**9]  of the two last promissory notes for the unpaid note.
The plaintiff had given evidence of this unpaid note without objection, and having done so, it was in our opinion competent to prove the consideration of the two last notes, by establishing the fact, that they took the place of the note he had by consent proven to exist.
On the right of the plaintiff to recover in this action, we express no opinion, the prayer being general--see act of 1825, ch. 117.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

29 of 41 DOCUMENTS 

THE PENNSYLVANIA, DELAWARE, AND MARYLAND STEAM NAVIGATION COMPANY vs. WILLIAM H. DANDRIDGE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 248; 1836 Md. LEXIS 25 

December, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was a special action of trespass on the case commenced by the appellee against the appellants, on the 31st December, 1831, in which he declared, for, that whereas, heretofore, to wit: on, &c. at the city and port of Baltimore, to wit: at, &c. the said plaintiff safely and securely loaded in, and upon a certain schooner or vessel called the Hunter, certain goods, chattels, wares, and merchandise, of great price and value, to wit: of the price and value of five thousand dollars, current money, of him the said plaintiff, to be carried and conveyed on board of, and by the said schooner or vessel, to foreign parts beyond seas, to wit: to the State of Virginia; and the said schooner or vessel being, and there, to wit: on, &c. at, &c. so loaded with the aforesaid goods, chattels, wares, and merchandise, of him the said plaintiff, and ready to sail and proceed on her said voyage, was delayed and detained from proceeding on her said voyage, in consequence of the gathering of ice in the Patapsco river and Chesapeake bay, and the obstruction of the navigation of the said river and bay thereby, to wit: at the county aforesaid; and they, the defendants,  [**2]  in this action, well knowing the premises, afterwards, to wit: on the day and year aforesaid, at the county aforesaid, undertook and faithfully promised the said plaintiff, that they, the said defendants, for and in consideration of the sum of thirty-three dollars and thirty-three cents, to be paid by the said plaintiff to the said defendants, would safely and securely take the said schooner or vessel, so loaded as aforesaid with the goods and chattels of the said plaintiff, from and out of the ice, and from and out of the harbour and port of Baltimore aforesaid, to and at such point or place of safety, in the said river or bay, below where the same was frozen, and below where the navigation thereof was obstructed by ice, as aforesaid, by breaking the said ice and towing the said schooner or vessel to such point or place of safety as aforesaid. Yet the said defendants not regarding their said promise and undertaking, and not regarding their duty in this behalf; afterwards, to wit: on the day and year aforesaid, at the county aforesaid, neglected and refused so to do, although thereto requested by the said plaintiff; whereby, and by reason of the negligence and improper conduct of the [**3]  said defendants and their agents, the said schooner or vessel was injured, stranded and lost, and the aforesaid goods and chattels, wares, and merchandise of the said plaintiff became and were greatly broken, damaged and destroyed, and wholly lost to the said plaintiff, to wit: at the county aforesaid; wherefore the said plaintiff saith he is injured and hath sustained damage by reason of the non-compliance by the said defendants, of their said contract, to the value of five thousand dollars, like current money, and therefore he brings suit, &c."

The defendants pleaded that they did not undertake or promise in manner and form as, &c. on which issue was joined.

The verdict being for the plaintiff, the defendant moved in arrest of the judgment, and assigned the following reasons in support of their motion:

1. Because the plaintiff's declaration in this cause does not show or allege any consideration for the defendants' undertaking and promise therein declared upon.

2. Because the plaintiff's declaration in this cause alleges, that the promise of the defendants' declared upon, to carry out safely the Hunter, and the plaintiff's goods on board of her, was made for and [**4]  in consideration of the sum of thirty-three dollars and thirty-three cents, to be paid by the plaintiff to the defendants; and it is not shown or averred in said declaration, that the said sum ever was paid to the defendants or any one for them.

3. Because the plaintiff's declaration in this cause alleges the defendants' promise, and the consideration therefor, in the manner stated in the second reason above; and it is not averred in or shown by said declaration, either that the plaintiff ever paid said consideration to the defendants, or any one for them, or that the plaintiff ever promised to pay said consideration to the defendants, or was under any obligation to pay the same to the defendants, or any one for them.

4. Because said declaration does not sufficiently describe the property of the plaintiff on board the Hunter, nor shew the number, kind, and quality of the goods.

These objections were over-ruled by the county court, (Archer, Ch. J.) and judgment rendered for $ 2,347 79 1/2.

1ST EXCEPTION.--At the trial of this cause, the plaintiff, to support the issue on his part joined, by Jones proved, that in the month of December, 1831, the plaintiff had in the [**5]  harbour of Baltimore, two vessels, one of which called the "Independence," belonged to the plaintiff, and the other called the "Hunter," was chartered by the plaintiff, who was a resident of Virginia, for the voyage to Baltimore, and back again to the Rappahannock, in Virginia That whilst the said vessels were lying in the harbour of Baltimore, the navigation of the Patapsco river became so obstructed by ice that the said vessels were unable to get out of said harbour into the Chesapeake bay, and that whilst they were thus detained in said harbour, an arrangement was set on foot for securing the aid of steamboats in cutting through the ice, and towing out into the bay, vessels detained by ice in said harbour. That the plaintiff having heard that such an arrangement was in progress, and being then confined to his room by severe indisposition, applied to the witness, his friend, and requested the witness, as his, the plaintiff's agent, to contract for towing out his said two vessels, and that he, the witness, as such agent, having heard that the arrangement for so towing out vessels, was being made, with the agents of the defendants, having the charge and management of the line of steamboats [**6]  established and conducted by the defendants between Baltimore and Philadelphia, applied for the purpose of making a contract to have the said vessels of the plaintiff towed out, at the office kept by said agents in the city of Baltimore, and that he, the witness, as the agent of the plaintiff, there contracted with Hugh McElderry, as the agent of the defendants, for the towing out of plaintiff's said vessels. That at the time of said contract, he, the witness, informed McElderry, that one of the vessels, to wit: the Hunter, which was the smallest, had a cargo on board, and agreed to pay him thirty-three dollars and a third, for the transportation of each of said vessels, and that therefore McElderry, as the agent of the defendants, agreed with witness, as the agent of the plaintiff to take the said vessels (the Hunter being so loaded,) from the harbour of Baltimore, through and out of the ice, free of damage of ice.

The plaintiff then offered to prove by said witness, that shortly afterwards, and on the Thursday afterwards, the steamboat Independence, owned by the defendants and the steamboat Maryland, employed by the said agents of the defendants, having collected the vessels [**7]  to be towed out, to the number of fifteen or sixteen, began the proposed expedition, the Independence going ahead to break the ice and the Maryland following with the vessels in tow, and that the said two vessels of the plaintiff, the Hunter and the Independence, were in the line of the vessels so taken in tow, and in or near the rear of the line. That the said steamboats and the vessels taken in tow, made their way in safety through the ice, to a place called Hawkins' Point, several miles distant from Baltimore; Jones, the witness, being on board the schooner Independence, belonging to the plaintiff--that at said last mentioned place, the vessels were detained for some time, by the stoppage of the steamboats, and that whilst there, a Mr. Wilson came on board the said vessel in which the witness was, to collect the sum above mentioned, as contracted to be paid by the witness as the plaintiff's agent, for the transportation of his said two vessels. That Captain Gundry, the captain of said schooner Independence, then objected to the payment being made, and remarked to witness, in the presence of said Wilson, "you are not going to pay until we are carried out," and that said Wilson, in [**8]  reply, then assured them, that they had already gone through the thick ice, and they were nearly out of the ice, that there could be no doubt about their getting out safely, if they would make secure the fasts which connected them with the vessel preceding them in the line, and that thereupon the witness paid said Wilson the money so contracted to be paid by him, for the transportation of both of said vessels. The plaintiff further offered to prove by said witness, that shortly after the payment of said money, and on the same evening the vessels again got under weigh, and that after they had gone a mile or two from the place at which they had stopped, just after night-fall, the fasts of the second vessel ahead of the vessels of the plaintiff, in the line of vessels which the Maryland was then towing out, gave way, and that the vessels whose fasts gave way, cast off the fasts of the vessel behind her, as did the latter vessel cast off the fasts of the plaintiff's vessel, the Independence, and both made sail to overtake the line of vessels ahead, that the plaintiff's vessels made the same efforts, but the wind being light, the night very cold, and the ice forming very fast, they were [**9]  unable to make any progress, although they hoisted sails, and made efforts to go ahead--that the plaintiff's vessels being thus left in the ice near dark, they remained there until some time in the night, when the steamboat Maryland returned up the track, and came alongside of the plaintiff's vessels--that the witness then applied to Captain Taylor, the captain of the Maryland, and most earnestly and repeatedly entreated him to take the plaintiff's said vessels out of the ice, to which Taylor replied that he could not, for any sum of money, as he must be in Baltimore that night. That witness being then very much alarmed at the situation of said vessels, which he believed to be in great danger, then repeatedly and earnestly requested Taylor to take the vessels back to Baltimore, and offered Taylor, he believed, the sum of one hundred dollars to do so, and that Taylor refused either to take the vessels out of the ice, or to bring them back to Baltimore--that witness having his brother-in-law, a blind man, on board with him, and being very much alarmed about his situation, if left in the ice, applied to Taylor to bring them up back to Baltimore, in the Maryland, which he agreed to do;  [**10]  that witness and his brother-in-law accordingly went on board the Maryland, and that the Maryland then went up the track about a quarter of a mile, where she lay in the ice all night.

The plaintiff further offered to prove by Captain Gundry, a proper and competent witness examined in his behalf, that he was the captain of the plaintiff's schooner Independence, and on board of her as such, at the time mentioned by the witness, Jones, when the said vessel and the schooner Hunter were taken in tow by the steamboat Maryland, to be towed from the harbour of Baltimore, through and out of the ice--that the steamboat Independence went ahead to break the ice, and the Maryland followed with the vessels in tow--that about two hours before sun-down on Thursday, the    , the day on which they left Baltimore, they reached Hawkins' Point, and remained there until near sun-down, for what purpose the witness did not know. That whilst there, Taylor, the captain of the steamboat Maryland, came along the line of the vessels, and told the captains of the vessels, and witness among others, that they must secure their vessels by sufficient fasts, and he would take them out of the ice in the course [**11]  of two hours, and that witness went to work to secure the fasts of his vessel, and secured them in the best possible manner. That shortly afterwards, a person came on board his vessel, to collect the money to be paid for carrying out the Hunter and Independence, and applied for it to Jones, the witness, on board the witness' boat, and that witness objected to paying until they were out of the ice, but that upon said person's assurance that they were then nearly through the ice, and there was little, if any, doubt about their being carried out in safety, the money was paid by Jones to said collector--that about sun-down, the vessels again got under weigh, and that after they had proceeded a short distance, when just after night-fall, the fasts of the second vessel ahead, gave way, and she, and the vessels immediately in her rear, successively cast off their fasts, and made sail in the manner stated by the witness, Jones, and that the fasts of the witness' vessel being thus cast off, he hoisted sail, and made every effort to follow, but without success; that his efforts to get out without assistance proving fruitless, his vessel, and the Hunter, and the Blackbird, remained in the track [**12]  near each other until the return of the Maryland up the track--that the Maryland returned about midnight the same evening, and stopped within one hundred yards of them, when witness having made his fasts ready to attach his vessel to the Maryland, asked Taylor, the captain of the Maryland, if he was ready--to which he replied, "for what,"--and witness replied, "to take them out." That Taylor then said, "no, he would not do it," and asked witness why he did not make his fasts good and hold on--and that witness replied, that he did, but that the fasts of the second vessel ahead gave way. That Taylor then began to break the ice around the witness' vessel, to get by, when witness and Jones repeatedly and earnestly besought Taylor to take them out of the ice, which he refused to do; and that they then repeatedly and earnestly besought Taylor, for justice, for mercy, for humanity's sake, either to take the vessels out of the ice, or to bring them back to Baltimore, and that Taylor refused to do either. That Jones offered Taylor one hundred dollars to bring the vessels back to Baltimore, which Taylor also refused, and then stated that the steamboat Independence coming up the track, and would [**13]  take them up to Baltimore. That witness then said, "we'll starve here," to which Taylor replied, that he would give them provisions, and did accordingly furnish them with some provisions. That Jones then applied to Taylor to take himself and his brother-in-law, a blind man, back to Baltimore, in the Maryland, to which Taylor agreed, and they accordingly went on board the Maryland, and she went on up the track towards Baltimore, and lay all night in the ice about a quarter of a mile above. The plaintiff further offered to prove by the said last mentioned witness, that on the next evening, being Friday, the said steamboat Independence came along up the track, on her return to Baltimore, and that he, the witness, made the same appeal to the captain of that boat which were made to Taylor, to induce the former either to take the plaintiff's said vessels, the Independence and Hunter, out of the ice from Baltimore, or to take them back to Baltimore, and that he also refused to do either, as Taylor did. That on Thursday night they had hoisted sails and made all the efforts to get out which they could make, but that on that night it was so very cold, and froze so rapidly, that on Friday morning [**14]  the track which had been opened the day before, was completely frozen over, and covered with ice, so thick and hard that the men were able to walk on it, and did walk on it all day on Friday, and that they lay in the ice all Friday, without making any further efforts to get out, which they considered useless. That on Saturday, the crews of the Independence and the Hunter recommenced their efforts to get out, when about daylight a violent storm came up, in the course of which the Hunter was driven against the Independence, and broke her bowsprit, and came alongside and unshipped her rudder--that during the storm, the crew of the two vessels made efforts to get some of the articles out of the Hunter into the Independence, but only succeeded in getting a small quantity of provisions. That the storm continued with great violence, and about three o'clock in the day, the said two vessels being then near the edge of the ice, and in the floating ice, the Hunter was so much injured that witness thought it would be risking the lives of the crew to leave them on board of her; and deeming it necessary for the safety of his vessels, to make a place for shelter, and to abandon the Hunter, he took [**15]  the crew of the latter on board of his vessel, leaving the Hunter, was out of sight of her in five minutes, and has never seen her since.

The plaintiff further offered to prove by John O. Treacle, a competent witness on his behalf, that he was the captain of the said schooner Hunter, at the time spoken of by the witnesses, Jones and Gundry, when said vessel, with the Independence, commanded by Gundry, and several others were taken in tow by the steamboat Maryland, to be towed out of the harbour of Baltimore, through the ice, in December, 1831--and that the Hunter was then loaded with goods for the plaintiff, and had been chartered for the voyage from Virginia to Baltimore, and back again, to the plaintiff by the witness' father, who was owner of said vessel--that his said vessel and the Independence, whilst being towed out by the Maryland, were left behind in the track, below Hawkins' Point, and in the manner stated by the witness, Gundry--that on the return of the Maryland, during the night, up the track to Baltimore, application was made to Captain Taylor, of the Maryland, to take the said vessels out of the ice, in the manner stated by the witnesses, Jones and Gundry, which [**16]  Taylor refused, and said he had some vessels to take back to Baltimore. That Jones then asked Taylor to take the said vessels back to Baltimore, and offered him one hundred dollars to take them back, but Taylor still refused, and said the Independence would take them back. That on the next evening, being Friday, the steamboat Independence came along up the track, on her return to Baltimore, having vessels in tow, and that application was made to the captain of that boat also, either to take the Hunter and the Independence out of the ice from Baltimore, or to bring them back to Baltimore, who refused to do either, as well as Taylor, of the Maryland. That on Thursday night, when they were left in the track they hoisted sails, and made every effort to get out, but made no progress, the wind being light, the night extremely cold, and the ice making very fast, and on Friday morning the track was frozen over, so that the hands of the two vessels walked upon the ice made in the track, and that they lay in the ice all Friday, without making any progress--that on Saturday morning they renewed their efforts on board both of said vessels to get out of the ice, about daylight, when a violent storm [**17]  came up, in the course of which the Hunter's rudder was lost, and her bowsprit and night-heads broken, and also her lower rudder irons. That the Hunter continued alongside of the Independence until about three o'clock in the day, when Captain Gundry, of the latter vessel, said he must leave the Hunter, and try to get to some place of shelter, to save his own boat--and that witness with the crew of the Hunter, then got on board the Independence for the safety of their lives, and the Independence cast off the Hunter, and was soon out of sight. That during the storm, efforts were made to get some of the goods out of the Hunter, which proved unavailing, and that when it was found that it would be necessary to abandon the Hunter, and that there was no chance for saving her, the witness stripped her of her sails, and secured her cable and one of her anchors--that at the time when the witness left the Hunter, the water was nearly up to the cabin floor, and the pump frozen--and that the Hunter belonged to the witness' father, and was not insured, and her loss was a total loss to him.

To the introduction of all of which testimony so offered by the plaintiff to be proved by the said witnesses,  [**18]  Jones, Gundry, and Treacle, the defendants, by their counsel, objected.

1. As inadmissible generally under the pleadings in this action.

2. As inadmissible for the purpose of establishing for the plaintiff any claim to damages for the loss of his goods on board the schooner Hunter, in the manner proposed to be proved, inasmuch as the plaintiff's declaration declares on such loss as resulting directly from a total non-performance on the part of the defendant, of his contract to carry the Hunter through the ice, and the proof offered is of a loss of said goods resulting from an imperfect or negligent performance of the contract when it was in part executed.

3. As inadmissible for the purpose next above mentioned, because the loss alleged in the plaintiff's declaration is therein stated to have resulted directly from the defendants' neglect or refusal to perform his contract, and the proof offered is of a loss of said goods resulting from the action of a storm as its proximate cause, and there is no averment in said declaration, of the existence or action of said proximate cause, so as to let in proof of it, or of the defendants' alleged neglect or violation of contract,  [**19]  by which he exposed said vessel to the action of such proximate cause.

But the court over-ruled all said objections and admitted said evidence. The defendants excepted.

2ND EXCEPTION.--In addition to the testimony stated in the preceding, the defendants' first bill of exceptions, the plaintiff's witness, Jones, on cross examination, further stated that at the time he made his contract with McElderry, as to towing out the Independence and the Hunter, McElderry was making out a list of the vessels to be towed out, and that the witness gave McElderry the names of his vessels to be put down, with the sums to be paid by him; that witness had no conversation with McElderry, as to the origin or character of the enterprise, and never heard him intimate a doubt about its success. That he was positive that Taylor never asked him to let him (Taylor,) bring the said vessels back to Baltimore, when he, Taylor, was returning with the Maryland, up the track, and that, on the contrary, witness repeatedly urged Taylor to bring them back, and even offered him a reward for so doing, which Taylor refused. That the Maryland had no vessel in tow on her return, and at the time when she came up [**20]  to the vessel in which the witness was, but that after she passed the Independence and the Hunter, and just above where she lay in the ice all Thursday night, she took several small vessels in tow, principally wood boats, and that he was quite confident that the Maryland brought no vessel from below the boat in which witness was. That the Hunter and the Independence could not get up on Thursday night to where the Maryland lay all night, as the ice was making very fast, and that he, witness, never applied to the defendants, or their agents for the return money which he had paid as before stated, for taking out the said vessels.

The plaintiff's witness, Gundry, also stated, on cross examination, that he did not recollect, that whilst the vessels were lying at Hawkins' Point, Taylor, or any one else told them to make their fasts secure, for if they got loose he could not wait for them. That Taylor had no vessel in tow, when on his return up the track in the Maryland, he came up to the plaintiff's boat. That he assisted in stripping the Hunter, and saw no water in her, but did not examine her; that she had three or four hands with the captain. That the Hunter was stripped just before [**21]  the Independence parted with her, and that the latter parted with her at the edge of the ice. That the Independence was a larger vessel than the Hunter, and was nearly empty, and could have taken the goods in the Hunter, and have carried them easily, if they could have gotten them out of the Hunter, and that he was confident that both Taylor and the captain of the Independence were frequently requested to bring the vessels back to Baltimore, and refused to do it.

The plaintiff's witness, Treacle, also stated, on cross examination, that the Independence left the Hunter when they were in the broken ice; and that after leaving her, the Independence took shelter under the high lands of Magothy. That when Taylor was on his return in the Maryland, he had one vessel in tow, and that he said there were also vessels above, which he, Taylor, had to take back to Baltimore. That Taylor positively refused to take the vessels back to Baltimore, but said he would come down for them next morning. That witness had on board his vessel, the Hunter, two hands besides himself and a working passenger.

The plaintiff then offered evidence, that under an agreement with McElderry, as the agent of [**22]  the defendants, that it should not prejudice his rights; he, the plaintiff having heard that the Hunter had gone on shore on Kent Island, appointed agents to secure the cargo as far as practicable, and to dispose of it to the best advantage, if so damaged as not to justify the return of it to Baltimore. That the Hunter went on said shore on the evening of Saturday, and when examined, was found to have one or two holes in her stern, through which the tide was ebbing and flowing, the examination being made a day or two after she went ashore. The plaintiff also proved that the cargo secured by the said agents, being in a damaged state, was disposed of to the best advantage at Chestertown, and the net proceeds of the sale, deducting all expenses, was sixteen hundred and forty-four dollars and twenty one cents. It was also admitted, that the value of the plaintiff's goods on board the Hunter, at the time of her being left by the Independence and her crew, was $ 4,000.

The plaintiff then proved by William H. Gatchell, a competent witness on his behalf, that in December, 1831, the said Hugh McElderry was the general agent for the defendants, and as such, made contracts for the transportation [**23]  of goods and passengers by the Citizens Union Line of Steamboats, a line of boats established and carried on by the defendants, between Baltimore and Philadelphia, and that the boat Independence was one of the boats employed by the defendants in that line, and that the transportation of goods and passengers between Baltimore and Philadelphia, or to any intermediate point, on the route of their said line, was the ordinary business of the defendants in the conduct of said line.

The defendants then offered to examine the said Hugh McElderry, with whom the witness, Jones, had stated that he had made for the plaintiff, the contract declared upon in this action; but it being admitted that the said McElderry was a stockholder of The Pennsylvania, Delaware, and Maryland Steam Navigation Company, the defendants in this action, the plaintiff, by his counsel, objected to the examination of said McElderry, but the defendants, by their counsel, contended that he was a competent witness, to prove what contract he did make as the agent of the defendants, with Jones, as the agent of the plaintiff; but the court were of opinion that McElderry was an incompetent witness, and that his testimony [**24]  was not admissible in this case, even for the latter purpose, and accordingly would not permit the defendants to examine him for said purpose. The defendants excepted.

3D EXCEPTION.--After the evidence stated in the defendants' preceding bills of exception had been offered, the defendants proved by Captain Lemuel Taylor, (he having been first duly released by the defendants,) that in December, 1831, at the time when the contract, offered in evidence by the witness, Jones, is stated to have been made, he, Taylor, was the captain of the steamboat Maryland; and that on Wednesday, the     of December, 1831, Mr. Meeteer, the president of the Citizens Union Line, sent for witness to engage his services and the services of his boat, the Maryland. That before the witness went down to the office of the Citizens Union Line, Jones, the witness called on the witness, Taylor, and wanted to make a bargain with him about towing out the schooners Hunter and Independence, above mentioned. That witness informed Jones, that he had just received a note from Mr. Meeteer, to engage the assistance of the Maryland, in towing out the vessels on the proposed expedition, and that he, witness, had nothing [**25]  to do with making the bargain for towing out the vessels, and that witness directed Jones to go for that purpose to the office of the Citizens Union Line. That shortly afterwards, witness went down to said office, and there found Jones in conversation with said Meeteer, about towing out said vessels. That Jones then stated to Meeteer, that he wanted to make a contract about towing out said vessels, to which Meeteer replied, that he did not know that there would be a sufficient number of vessels to induce them to undertake it. That Jones then said to Meeteer, "he might set him, Jones, down for two vessels," and that Meeteer then stated to Jones, that there was a doubt, whether the company would succeed in the effort if made, although he thought they would, but that the company would not be at any risk, nor responsible for the property. The defendants further proved by said witness, that having contracted with Meeteer to give the aid of his boat, in the attempt to tow out the vessels, he, witness, went to work to prepare for the expedition, and to collect the vessels, and that on Thursday morning, about eight or nine o'clock, they set out, the Independence going ahead to break the ice,  [**26]  and the Maryland following, having the vessels in tow. That after they had proceeded about a mile, the wind rose, and pressed the vessels in the rear of his stern, to the danger of his own boat, so that the witness was obliged, for the safety of the Maryland, to let go the vessels, which then made sail, and followed after him in the track, for five or six miles, and until they got to, or near to Hawkins' Point, where Captain Trippe, of the Independence, stopped to get a supply of wood for his boat; that the vessels all lay there for some time, being then, as witness thinks, within a mile and a half, or two miles of the edge of the ice, and that he, witness, then went along the line of the vessels, including the Hunter and the Independence, and directed the captains of the vessels to make their fasts secure, as his situation would be such, that if their fasts gave way he could not wait for them. That near dark the Maryland set out again from the place at which they had so tarried, having the vessels in tow, (including the Hunter and Independence,)--that he, witness, had no knowledge that any of them had broken loose, or were left in the track, until he found them in the track, upon [**27]  his return. That the Maryland got through the ice about eleven o'clock at night, on Thursday night, and after the vessels were out of the track, that the witness immediately returned with the Maryland, up the track, whilst Captain Trippe with the Independence, and a vessel which he had in tow, went to Annapolis. That a short distance below where the vessels left, were, the Maryland, on its return, stopped in the track, to take in tow a boat which lay in the ice, at a distance of fifty or a hundred yards from the track, to get which in readiness to be towed, the Maryland, on her way down, had left a person who went down in the Maryland, at the instance of the owners, to assist in endeavouring to have said boat towed up. That after the Maryland had got this boat in tow, she went on up the track, until she encountered the vessels left, including the plaintiff's said vessels--that the witness, not knowing that any vessels had been left, as he approached them, remarked that here were stragglers in the track, and on being hailed by the witness, Jones, witness asked what they were doing there, to which Jones replied, that they had been left; and on witness asking why they had not secured [**28]  their fasts, Jones replied that they had. That witness was then urged by Jones, to take the plaintiff's vessels out, but refused, and assigned, amongst other reasons for his inability to do it, the injured condition of his boat, the Maryland. That witness, however, then offered to bring the said vessel back, and would have done it with great cheerfulness, but that this was declined by Jones, and that although the Maryland then lay alongside of, or near to the Hunter and the Independence for some time, Jones, and the captains of the said vessels, not only never asked the witness to bring the vessels back to Baltimore, and never made any effort to fasten their vessels on to the Maryland for that purpose, but actually refused to be brought back. That whilst there, the witness supplied one of said vessels with some provisions, and told them that the track was clear, and that if they would hoist sails, and make exertions, they could get out, but they made none as far as the witness saw. That after the Maryland passed these vessels, she went up the track about three hundred yards, where, the vessel being injured, the witness deemed it prudent to lay by all night. That witness, with the Maryland,  [**29]  then took in tow other vessels, to take them to Baltimore, amounting in all, with that brought up, to six, for which he received only one hundred and six dollars. The said witness, Taylor, further proved, on cross examination, that he told Mr. Meeteer that he thought the vessels could be towed out, as it had been done before--that he did not recollect seeing any of the captains of the other vessels there, at the time of Jones' conversation with Meeteer, testified to by witness; that the Independence was better prepared than his boat, for getting through the ice. That the buckets of his boat were much injured by the ice striking against them, and that the pay received was scarcely sufficient to pay the damage actually sustained. That he did not tell Jones or the captains of the Hunter and the Independence, when on his return up the track, that he would come back for them, but then offered to take them up to Baltimore, and that he did not tell them that the Independence would take them up, but that the Independence would be along, and would keep the track open. When he came up to the vessels, on his return up the track, there was a light wind, and he, witness, told them to hoist sails [**30]  and make exertions to get out, but they made none--that of the vessels which were left, and which he found in the track on his return up it, one was Captain Traverse's vessel, which was the hindmost vessel, and which got out safely.

The defendants then further proved by James Taylor, a competent witness on their behalf, that he was in the Maryland on the night spoken of, when the Hunter and Independence were left in the track, and when the Maryland met said vessels on its return up the track; that he heard Captain Taylor, of the Maryland, offer to Jones to bring said vessels back to Baltimore, which offer was refused; that it was his impression, that if the said vessels had then made exertions they might have made their way out--that the Maryland lay that night in the track, about three hundred yards above said vessels, and that during that night, the witness did not see any exertions made by their respective crews to get them out. The said witness also stated, on cross examination, that in his opinion the Maryland could have carried said vessels out that night--that he saw the witness, Captain Taylor, in conversation with Jones, but did not hear the whole--that he heard the offer [**31]  of Taylor, to bring the vessels back to Baltimore, but does not recollect hearing any thing said about the return of the Independence.

The defendants further proved by     Gray, a competent witness on their behalf, that he was on board the Maryland on the occasion spoken of by the other witnesses, when the Hunter and Independence were taken in tow, to be towed out of the port of Baltimore--that he heard Captain Taylor, of the Maryland, when they stopped at Hawkins' Point, give the vessels notice, and these among others, to make their fasts secure, and that it must be at their risk, for if they broke loose, it would be impossible for him to turn back for them. That on the return of the Maryland up the track, these vessels, the Hunter and Independence, with three others, were discovered to have been left in it. That Taylor then offered to bring the Hunter and Independence back to Baltimore, but refused to turn back and take them out of the ice, and that the Maryland then had in tow a boat which she had brought from below, and near the edge of the ice. That Taylor's offer to bring the vessels back to Baltimore was declined, and that whilst near them, Taylor supplied one of the [**32]  said vessels, at the request of its captain, with some provisions. That before the Maryland left said vessels on her way up, Jones, the witness, with a blind man, came on board, whom witness found in the cabin of the Maryland, when he went to supper. That witness then heard Jones express high satisfaction at getting on board the Maryland, and that Jones then remarked that the crew of the boat he was in, were not trustworthy--that he could not get them out of the cabin to do any work--that he could not trust himself with them--that they were mostly lazy blacks, and that he believed said crew could have taken the boat out, if they had made proper exertions.

The defendants then offered to prove by     Norris, a competent witness on their behalf, that the enterprise or attempt to tow out vessels, in the progress of which the Hunter and Independence were left in the ice, as stated by the witnesses in this cause, originated with witness, who had several vessels detained by the ice in the harbour of Baltimore. That in consequence of the severity of the weather, the harbour had been for a long time closed, to the great injury of the commerce of the city of Baltimore, and that witness [**33]  applied to Meeteer, the president of the company, defendants, and offered three hundred dollars to them if they would tow his vessels out. That said president expressed much reluctance at first to make the attempt, but finally agreed if a number of vessels offered to be towed out, sufficient to defray the probable cost of the enterprise. That a sufficient number was procured, the vessels paying according to tonnage, and including witness' three vessels, for which he paid three hundred dollars. That when the said president agreed to undertake the enterprise, it was distinctly understood by the witness, that the company were to be at no risk, and were not to be paid any thing if they did not succeed in the enterprise. That such was the nature of the witness' contract with them, as far as witness understood the nature of the arrangements into which the said president agreed to enter, when at witness' instance they agreed to make the attempt.

To the admission of which evidence, the plaintiff, by his counsel, objected, but the defendants, by their counsel, insisted that it was admissible generally, under the issue in this cause, and that if not admissible generally, it was admissible [**34]  for the purpose of sustaining the statements made by the witness, Taylor, as to the conversation proved by him, to have been held between the witness, Jones, and the said Meeteer, and also, as evidence from which, in deciding between the contradictory statements of Taylor and Jones, the jury might be enabled to determine with whom Jones in fact made his contract, and what that contract really was. But the court (Archer, Ch. J.) were of opinion, and so decided, that the said evidence was not admissible, either generally, or for any of said purposes, and accordingly rejected all of said testimony. The defendants excepted.

4TH EXCEPTION.--After the evidence stated in defendants' preceding bill of exception had been offered or given, the defendants further proved by     McCulloch, the facts proved by James Taylor and Gray in the third exception, and then further proved by Captain Trippe, a competent witness on their behalf, that he was captain of the steamboat Independence on the occasion spoken of by the witnesses, when the Hunter and the Independence were taken in tow. That his boat went ahead to break the ice, and after getting through the ice, went on to Annapolis with a boat [**35]  in tow, which it had taken in tow at Hawkins' Point, reached Annapolis between ten and eleven o'clock that night, and on the next day, (Friday,) got the Pacific in tow, a vessel which, by the original arrangement, was to be towed up, if they succeeded in getting through the ice; and that the agreement to tow this vessel, in that event, had been made before the arrangements to tow the vessels out from Baltimore was completed--and before the contract proved by Jones. That on his return to Baltimore with the Pacific in tow, he got to the edge of the ice about or near dark, on Friday night, and got the other vessels there waiting to be towed, in readiness, and set out on his return up the track--that in the track met with several vessels, whose crew, or some of them, stated that they had been left on the voyage down, and requested witness to take them out of the ice--that witness refused to turn back and take them out, as he did not deem it prudent for many reasons--that no request was made to him by any of them, to bring them or their vessels back, which he could and would have done with great cheerfulness. That amongst the vessels he so met in the track, were three lying together, by [**36]  which or some of which the application to take them out was refused by him, but none of them desired him to take them back to Baltimore. Witness also stated, that the enterprise was undertaken at the instance of, and to gratify the wishes of the mercantile community of Baltimore, whose commerce was suffering from the harbour having been so long closed by ice--that it was considered questionable whether the attempt would prove successful, and that the compensation received did not pay the expenses and damages sustained in the accomplishment of it. That after witness' boat passed the said vessels on the track, it went on until it met the Maryland in the ice near the Fort, much injured, and wanting his assistance to get to Baltimore, which, with his aid, it reached on Saturday morning. That the Maryland was not sheathed behind, nor armed with axes to cut the ice, or otherwise equipped for that purpose, as his boat was, and that from the condition in which he found the Maryland, he does not think it would have been prudent for Taylor, with a due regard to the safety of his boat and crew, when he met the Independence and the Hunter in the track, to have turned back and towed them out of [**37]  the ice, and that the attempt, if practicable, would have been attended with great risk. That said witness also stated, on cross examination, that his boat might have taken said vessels out when it was on the return, but he did not think it prudent, from a regard to the vessels which he had in tow--that on his return the track was closed, having been frozen the night previous. That he thinks it from two to two and a half miles from the edge of the ice to the place at which these vessels were lying, and that if his boat had had no vessels in tow, he might have taken them out. That he believes that he did not complain of Taylor's refusal to take them out, when informed of it by them, as it was the arrangement between him and Taylor, that Taylor should take the vessels out which were to be towed down. That on his return, he passed these vessels about seven or eight o'clock, on Friday evening, and the weather had then become moderate, and that in his opinion, if these vessels had then made exertion, as the track had been opened by his boat, that they could have got out safely, and that he did not see them make any exertions. That he did say something to them about going down next morning [**38]  to take them out, but next morning the weather changed, the ice broke up, and it become unnecessary. That when he passed said vessels, they were lying in the ice in safety, and thinks they would not have been injured by driving against the ice, as they were lying alongside of it, and not at any distance from it, and that the vessel might then chafe a little, but would not cut through in twelve or fifteen hours, as the wind, in such a situation, would have no hold on the vessel. That the vessels towed out, paid by the ton, the highest charge for any one being one hundred and fifty dollars, and the whole amount about eight hundred dollars--that from none of the vessels he met, was there any apprehension of danger expressed to him, and that on Friday evening, after his boat broke the track, they could have got out with proper exertions.

The defendants after offering proof in corroboration of Captain Trippe's evidence, further proved by Isaac Wilson, a competent witness on their behalf, that he was the clerk on board the steamboat Independence, on the occasion referred to by the other witnesses, and that when the vessels stopped at Hawkins' Point, he went to several vessels, for taking [**39]  which out, the money was not to be paid in Baltimore, to collect sums to be paid by them respectively, for taking them through the ice--that his instructions were given to him by Mr. McElderry, and were that he should not collect the money until they got out, or nearly out of the ice, but to collect it before they actually got out, so that they might not slip away, and avoid paying altogether, and if they did not get out, the money was not to be paid--that he received from the witness, Jones, the money to be paid for towing the said vessels, the Independence and the Hunter, and that some objection was then made by Gundry, to paying before they got out, and that witness believes that he did then say there was no doubt then about their getting out, if they made their fasts secure. That whilst at Hawkins' Point, Captain Taylor went several times along the line of vessels, and charged them to make their fasts secure. That witness returned in the Independence, and met several vessels in the track, and heard no application from any of them to bring them back to Baltimore. That he did not offer to return to any of the vessels left in the track, the money collected from them, nor did they [**40]  ask for a return of it.

The defendants also proved by     Bradshaw, a competent witness on their behalf, that he was present some time in the spring of 1832, and heard a conversation between Captain Taylor and Captain Gundry, two of the witnesses, in which Gundry stated to Taylor that they stripped the said schooner Hunter, of her sails, and took some articles out of her, before the storm of Saturday morning came on--and that they thought then she was in a sinking condition--and said witness then stated to the jury, that in his opinion, if the Hunter was in a sinking condition, as Gundry then stated, she would have sunk before she went to the Kent shore, where she, in fact, went ashore.

The defendants also proved by Captain Taylor, who was re-examined for that purpose, that Captain Gundry held with him, Taylor, the conversation above stated, by the witness, Bradshaw--that on Thursday night when the witness, Jones, came on board the Maryland from his boat in the track, as before stated, Jones remarked to him, that the owners of the boat ought to return him his money, as they had not taken his vessels out, and that witness then replied to him, Jones, that he had no doubt [**41]  that they would, if he would call on them and ask for it.

The plaintiff in reply to the defendants' testimony, then offered in evidence the deposition of Traverse and Carew, taken by consent of parties.

These depositions related to the course pursued in taking the vessels out--the difficulties encountered in the ice--the nature and extent of the storm in which the Hunter was lost; the refusal and ability of the Maryland to take the Hunter out before the storm--and the fact that McElderry had made other contracts for towing out than for these vessels--and also contained collateral matters contradictory of some portions of the defendants' proof, and proof sustaining the veracity of D. Jones.

After all the testimony stated in this bill of exceptions, and the defendants' preceding bills of exceptions (which testimony is all to be regarded as forming a part of this bill of exceptions,) had been offered, the defendants, by their counsel, prayed the court to direct the jury as follows, upon the whole evidence in this cause:

1. That the general object and design of the defendants' charter being to transport passengers and merchandise from Baltimore to Philadelphia, and [**42]  Mr. McElderry being their agent, that unless otherwise proven, his agency is limited to the business of the company, connected with or relating to such object and design.

2. That the charter granted to the defendants, limits them to the pursuit of particular objects specified in that charter, and that the breaking of ice, and towing vessels through the track thus broken, such vessels being destined for Virginia, is not one of those objects about which they could empower their agent to contract, and for which he could contract for them, at all events not without a special power conferred for that purpose, or a subsequent ratification by the company, of such contract.

3. That the evidence offered by the plaintiff, relative to the loss of, or injury to his goods on board the schooner Hunter, is inadmissible under the declaration in this action for the purpose of establishing for him any claim to damage against the defendants, for such loss or injury.

4. That if the evidence mentioned in the defendants' third prayer be admitted, for the purpose therein mentioned, there is a fatal variance between the causes and manner of the loss of, or injury to, the plaintiff's said goods,  [**43]  as alleged in the plaintiff's declaration in this cause, and the causes and manner of such loss or injury offered in evidence, and the plaintiff is therefore, not entitled to recover therefor under said declaration.

5. If the jury find from the evidence that there was any contract between the parties to this action, or their agents, relative to towing or taking the schooner Hunter through the ice from the port of Baltimore, yet if they further find that such contract related solely to the taking of said vessel, and not to the transportation of any goods of the plaintiff, on board said vessel, and that there was no agreement between said parties, or their agents, relative to the transportation of any such goods of the plaintiff, then the plaintiff is not entitled to recover in this action for any loss of, or injury to, any goods of his on board said vessel.

6. That if the jury find that the contract between the parties, on which this action is founded, was as is stated in the next preceding, the defendants' fifth prayer, then there is a variance between the contract as alleged in the plaintiff's declaration in this cause, and the contract proved, and the plaintiff is therefore [**44]  not entitled to recover.

7. That if the jury believe from the evidence, that there was no express agreement on the part of the defendants with the plaintiff, or his agent, to take the said schooner Hunter through the ice in safety, and to be responsible to the plaintiff for all losses or injuries which might arise if the said vessel was not carried through in safety, and that the agents of the defendants, in towing or taking said vessel through the ice, used all proper and reasonable care and diligence, and such as any prudent man under the circumstances could or would have used in the endeavour to take said vessel through the ice, and that said vessel was detached from the line of vessels towed out, and left in the track along which they were towed, by misadventure, and not from the want of any reasonable care or diligence on the part of said agents; and if the jury further believe, that the said agents, upon their return up the said track, finding the said vessel therein, offered to take her back to Baltimore, which was declined, and that in the refusal of said agents to return in the track with said vessel, and in the direction from Baltimore, and take her out of the ice in [**45]  that direction, they, the said agents, did what any prudent master of a steamboat, and having a due regard for the safety of his vessel and crew, under the circumstances would have done, then the plaintiff is not entitled to recover.

8. That if the jury believe from the evidence, that in the endeavour of the defendants' agents to tow or take through the ice from the port of Baltimore, the line of vessels with which the said vessel, the Hunter, was connected, the Hunter was detached from said line and left in or near the track along which said vessels were towed, and that upon the return of the defendants' said agents, up the said track, to the port of Baltimore, they offered to take the said vessel, the Hunter and her cargo, back to Baltimore, and could and would have done so, without injury to the cargo, but that the agents of, or servants of the plaintiff, having the management of the Hunter, neglected or refused to embrace said offer, and the plaintiff's goods on board said vessel were afterwards lost or damaged, then the plaintiff is not entitled to recover for any such loss or damage.

9. That if the jury believe from the evidence, that after the said schooner Hunter,  [**46]  and the plaintiff's schooner, the Independence, were detached from the line of vessels, which the defendants' agents were taking or towing out, and left together in the said track, the hands on board, if they had made due and proper exertions, and such as prudent and faithful agents, under the circumstances, would have made, might have taken said vessels and their cargoes in safety through the ice, and that said hands omitted or refused to make such exertions, and the plaintiff's goods were afterwards lost or damaged, then the plaintiff is not entitled to recover for any such loss or damage.

10. That if the jury believe that the defendants did not contract to carry the schooner Hunter out of the ice, and out of the harbour of Baltimore, to a point of safety in the river or bay below, where the same was frozen, or the navigation was obstructed by ice, by breaking the ice and towing said schooner to such place of safety--that then the engagement of the defendants was merely a contingent engagement, then the plaintiff cannot recover on this nar.

11. That if the jury believe that the schooner Hunter could have returned to Baltimore with the Maryland, or the Independence, and [**47]  that she neglected to do so, and that a loss happened in consequence of this neglect on the part of the master and crew, that the company are not responsible for such loss.

12. If the jury shall believe that a master and crew of ordinary diligence, could, by the exercise of ordinary skill and prudence, have prevented the loss of the schooner Hunter, and that they neglected to use such ordinary skill and prudence, and by the neglect thereof, the goods of the plaintiff were lost, that the defendants are not liable for such loss, nor for any damages, except nominal damages.

13. That if the jury believe from the evidence, that the agents of the defendants, in towing or taking the schooner Hunter through the ice, from the port of Baltimore, used all proper and reasonable care and diligence, and such as any prudent master of a vessel or steamboat, under the circumstances could have used, in the endeavour to take said vessel, the Hunter, through the ice, and that said vessel, the Hunter, was already detached from the line of vessels towed out and left in the track, along which they were towed by misadventure; and not for the want of any reasonable care or diligence on the part of [**48]  said agents, and without the knowledge of said agents, and that, upon the return of said agents up the said track, they offered to take the said vessel, the Hunter, and her cargo back to Baltimore, and could and would have done so without injury to the said vessel and cargo, but that the agents or servants of the plaintiff having the management of the Hunter, and being aware of the danger of their situation, neglected or refused to embrace said offer, and the plaintiff's goods on board said vessel, were afterwards lost or damaged, then the plaintiff is not entitled to recover for any such loss or damage.

14. That if the jury believe from the evidence, that said vessel was detached from the line of vessels towed out, and left in the track in the manner stated in the next preceding, the defendants' thirteenth prayer, and that there was no express agreement on the part of the defendants with the plaintiff, or his agent, to take the said schooner Hunter through the ice in safety, and to be responsible to the plaintiff for any losses or injuries which might arise if said vessel was not carried through in safety; and that the agents of the defendants, in towing or taking said vessel [**49]  through the ice, used all proper and reasonable care and diligence, and such as any prudent man under the circumstances could or would have used, in the endeavour to take said vessel through the ice, and that said vessel was detached from the line of vessels towed out and left in the track along which they were towed by misadventure, and not from the want of any reasonable care or diligence on the part of said agents--and if the jury further believe that said agents, upon their return up the said track, finding said vessel therein, offered to take her back to Baltimore, which was declined, and that in the refusal of said agents to return in the track with said vessel, in the direction from Baltimore, and take her out of the ice in that direction; they, the said agents, did what any prudent master of a steamboat, and having a due regard to the safety of his vessel and crew, under the circumstances, would have done, then the plaintiff is not entitled to recover.

15. That if the jury believe from the evidence, that the agents of the defendants, in towing or taking the schooner Hunter through the ice, from the port of Baltimore, used all proper and reasonable care and diligence, and [**50]  such as any prudent master of a vessel or steamboat, under the circumstances could have used, in the endeavour to take said vessel, the Hunter, through the ice, and that said vessel, the Hunter, was detached from the line of vessels towed out and left in the track along which they were towed, by misadventure, and not for the want of any reasonable care or diligence on the part of said agent, and without the knowledge of said agents, and that upon the return of said agents up the said track, they offered to take said vessel, the Hunter, and her cargo back to Baltimore, and could and would have done so, without injury to said vessel and cargo, but that the agents or servants of said plaintiff having the management of said vessel and cargo, and aware of the danger of their situation, neglected or refused to embrace such offer, and if the jury further find, that the master of the steamboat, upon reaching said vessel, refused to take her back out of the ice, and that in such refusal, the master did what any prudent master of a steamboat, under the circumstances, and having a due regard to the safety of the vessel under his charge, would have done, then the plaintiff is not entitled to recover [**51]  for the loss of his cargo on board said schooner Hunter.

16. That there is a fatal variance between the causes and manner of the injury of, or loss to the goods of the plaintiff on board the schooner Hunter, and the causes and manner of their injury or loss, as offered in evidence, because the proof is that the said goods were not lost or injured, merely by the refusal or neglect of the defendants to carry the said goods safely, agreeably to the contract alleged by the plaintiff, but by the defendants' agents having commenced the performance of the contract, and after taking the said schooner Hunter in tow, having left her in the ice, exposed to the action of the wind and weather, whereby she was lost, and also because the proof shows that the said goods were not lost merely by the non-performance or mis-performance of the defendants' alleged contract, but by the defendants having left the vessel in the ice, where being left, a storm came up, by which, as the proximate cause, the loss of the said goods was occasioned.

17. That if the jury believe that the vessel or vessels which the Maryland had in tow, on her return up the track to Baltimore, or any of them, and the vessel [**52]  or vessels which the Independence had in tow, on her return up the track to Baltimore, or any of them, and which said boats, the Maryland and Independence had in tow when they met the Hunter, were vessels which the defendants, or their agents, were under contract to tow up to Baltimore, on their return from towing down the line of vessels with which the Hunter was connected, and that Dr. Jones, the agent of the plaintiff, knew that the defendants, or their agents, were under contract to tow such vessel or vessels up the said track upon said return, at the time when Dr. Jones made the contract with Mr. McElderry, offered in evidence, that then it was an excuse to the defendants or their agents, for not returning immediately, and going out of the ice with the Hunter, and leaving the vessel or vessels which the said agents were bringing up the track, that the defendants, or their said agents, were under such contract to bring up the latter vessel or vessels.

18. That if the jury believe from the evidence, that Mr. McElderry, with whom the contract offered in evidence by the plaintiff was made, was the general and ordinary agent of the defendants, yet if they also believe that the [**53]  duties of Mr. McElderry, as such agent, extended only to making contracts for the carriage or transportation of passengers or merchandise between Baltimore and Philadelphia, or to or from any intermediate points in the line of the transportation between said termini--and if they also believe, that the contract offered in evidence, for the employment of the boats of the defendants, in towing the Hunter out of the ice, was one which was entered into solely for the purpose of towing out vessels going to Virginia, or down the Chesapeake bay, that such contract had no relation to and was not a part of the business of the defendants in establishing and conducting a line of steamboats, or other vessels, stages or other carriages between Philadelphia and Baltimore, for the conveyance of passengers and the transportation of merchandise and other articles, then the said McElderry was not authorized to make said contract for and on behalf of the defendants, or at least that he was not authorized to make it, and the plaintiff is not entitled to recover thereon against the defendants, unless the said McElderry had special authority from the defendants, or the president and directors of the Pennsylvania,  [**54]  Delaware, and Maryland Steam Navigation Company, to make such contract, or unless the said contract was subsequently adopted or sanctioned by the defendants or the said president and directors.

19. That if the jury believe that the contract between McElderry, as the agent of the defendants, and Dr. Jones, the agent of the plaintiff, of which the plaintiff has offered evidence, was in its nature, and as to its objects, such as is stated in the next preceding, the defendants' eighteenth prayer, then such contract was not within the scope of the chartered power of the defendants, which charter it is agreed is in evidence in this case, being the act of 1825, ch. 179, and the plaintiff is not entitled to recover thereon, even if the jury should believe that the said McElderry was authorized by the defendants to make the same, or that it was adopted or sanctioned by the defendants.

Of which aforegoing prayers of the defendants, the court granted the fifth, sixth, ninth, tenth, and twelfth of said prayers, but the remaining of said prayers of the defendants, and all and each of them, to wit: the first, second, third, fourth, seventh, eighth, eleventh, thirteenth, fourteenth, fifteenth,  [**55]  sixteenth, seventeenth, eighteenth, and nineteenth prayers, the court refused to grant, but gave to the jury the following opinions and instructions:

1. If the jury believe the contract to be as proved by Dr. Jones, that Jones was the agent of the plaintiff, and McElderry of defendants, and that the defendants, although they commenced towing out the Hunter, yet by the giving way of the fastenings of the vessels, the Hunter was thrown loose, and left behind in the ice, and that being so thrown loose, was not attributable to the vessels entered by Dr. Jones, and that all reasonable exertions were made by the Hunter to get out of the ice, and free from danger of ice, and that said exertions were ineffectual, and that the cargo of the Hunter was partially lost and damaged in consequence of the failure of the defendants to comply with their contract, and in consequence of being left in the ice, then the plaintiff would be entitled to recover in damages, to the extent of the injury he sustained in his goods.

2. But if the jury believe the above facts, and that reasonable exertions were not made by the Hunter to free herself from the ice, and that she might, by such exertions, have [**56]  escaped danger, the plaintiff cannot recover for the loss or injury of his goods.

3. If the jury believe all the facts contained in the court's first direction, except that reasonable exertions were made by the Hunter to clear herself from the ice, which the jury should believe were not made, the plaintiff would in that event be entitled to nominal damages.

4. If the jury find from the evidence, that the contract to carry the Hunter and her cargo out of the ice, as proved by Dr. Jones, was made by the defendants' authorized agent, Mr. McElderry, with Dr. Jones, as the authorized agent of the plaintiff, and if they also find that the Hunter and her cargo were lost in consequence of being left in the ice by the defendants' agents, on Thursday night, and being driven ashore as is given in evidence by plaintiff; and if they also find that the defendants or either of their agents, the steamboat Independence or Maryland, could have carried them out of the ice before the storm began or said loss occurred, by reasonable exertions, that then the plaintiff is entitled to recover, and that it is no excuse to defendants for not taking the Hunter out of said ice, that their said agents [**57]  had, after entering into said contract to carry her and her cargo out of the ice, entered into other contracts to bring other vessels to Baltimore from the Chesapeake bay or elsewhere, which they could not have complied with had they stopped to take the Hunter out of the ice, provided the jury believe that reasonable and proper exertions were made by the officers and crew of the Hunter, to extricate the vessel and cargo from danger from the ice, and provided the jury further believe that the loss proceeded from injuries inflicted by the ice while she was detained in the track, either in her efforts to get out of the danger, or from the storm driving the vessel against the ice, or by being left in the ice by the agents of defendants, from which she could not extricate herself.

5. If the jury believe the evidence of Dr. Jones, in relation to the contract for carrying out the Hunter and her cargo, and if they also believe that one of the said agents of the defendants, acting as such on board the steamboat Independence, when said boat was with the Maryland, and under said contract engaged in taking out said vessel and her cargo, and the rest of the vessels then towed out of the ice [**58]  by said steamboats, including the other vessel of plaintiff, the schooner Independence, whilst lying at Hawkins' Point in the way down with said boats collected the money agreed to be paid by Dr. Jones, as agent of plaintiff, with Mr. McElderry, as agent of defendants, and afterwards paid over said money to defendants; and if they also believe that the defendants have ever since retained said money, as also, all the other money that was received by said McElderry, or the other agents of defendants, from the other vessels towed out of the ice at the same time by the two steamboats, the Maryland and the Independence, that then said facts are in law, an adoption of the contract under which said money was paid by plaintiff, and that said contract is as binding on defendants as if there was clear evidence of a precise authority from defendants to McElderry, to enter into said contract on their account. To which refusal of the court to grant said rejected prayers of the defendants, and to which refusal as to each of them, and to the granting of which said opinions and directions by the court, and of each of them, the defendants excepted and appealed to this court.

DEFENDANTS' CHARTER--Act [**59]  of 1825, ch. 279.

SECTION 1. Be it enacted, That     and others, their associates, successors, and assigns, be, and they are hereby created and made a corporation and body politic, by the name, style, and title of The Pennsylvania, Delaware, and Maryland Steam Navigation Company, and by that name, style, and title, shall have perpetual succession, and shall be able and capable in law to sue and be sued, to plead and be impleaded, answer and be answered in any court of law or equity; to make, have, and use a common seal, and the same at pleasure, to change, alter, and renew; and generally to do all such acts as shall be proper and necessary for the purpose of establishing and conducting a line or lines of steamboats, vessels, and stages, or other carriages, between Philadelphia and Baltimore, for the conveyance of passengers and transportation of merchandise and other articles.

SEC. 8. And be it enacted, That the directors or a majority of them shall have full power to appoint and employ, and in their discretion to remove or dismiss a secretary, treasurer, and all such other officers, clerks, agents, mechanics, labourers, and servants, as they shall deem necessary from [**60]  time to time, to attend to and transact or execute all the affairs and business of the company, and fix their compensation, to contract, agree for, and purchase, rent, or hire, all such lands, chattels, materials, rights, privileges, and effects whatever; and to make and repair or cause to be made and repaired all such roads, wharves, boats, vessels, carriages, and other conveniences as they shall deem necessary for effecting the objects of the company, and the same or any part thereof in their discretion to sell or otherwise dispose of; to call for monthly or other instalments of the stock not exceeding ten dollars on each share per month, on at least two weeks' notice being given, to apply the said instalments when received, and all other funds of the company, so far as may be necessary to effect the objects aforesaid, and in payment of the necessary expenses of the company, and to pass all such resolutions and by-laws as may be necessary to carry into effect the powers vested in them by this charter, and the said resolutions and by-laws, to alter, repeal, annul, or renew--subject nevertheless to the revision and control of the stockholders in the manner hereinafter provided.  

DISPOSITION:
JUDGMENT [**61]  REVERSED.  

HEADNOTES:

The declaration stated that the defendants in consideration of the sum of $ 33 33, to be paid by the plaintiff to the defendants, undertook safely and securely to take a certain schooner or vessel on board which the plaintiff had laden, "certain goods, chattels, wares, and merchandise, from, and out of the ice, and from and out of the harbour and Port of Baltimore," &c. which goods, &c. it was alleged, were lost in consequence of the neglect and refusal of the defendants to perform their promise. Held, on motion in arrest, after verdict, that the declaration was defective, because it did not allege any consideration for the defendants' promise; no agreement or promise on the part of the plaintiff to pay the $ 33 33, being averred. 2d. That upon the case made by the declaration, it was not necessary to allege the payment of the money; the performance of the defendants' agreement, being a condition precedent to their right to demand the remuneration. 3d. That the general description of "goods, chattels, wares, and merchandise," was insufficient, and that a definite description should have been given of the cargo.

Where the declaration charges, that the injury sustained by the plaintiff, is the result of the total neglect and refusal of the defendant to perform his engagement; evidence of a negligent and imperfect performance is inadmissible, and by implication contradictory of the charge. Under such a declaration the right of the plaintiff to damages is limited, to such as naturally result from the defendants' total neglect and refusal to perform his contract, and they cannot be inflamed by evidence of a negligent performance.

A declaration which alleges a contract to tow a vessel and cargo out, safely and securely, is not supported by proof of a contract to tow out free from a particular description of danger.

In the one case, the contract would cover a loss from any and every cause, while in the other, there could be no recovery, unless the loss arose from the danger particularly named in the contract.

Quere, whether a declaration alleging an act to be performed in consideration of the payment of $ 33 33, is sustained by proof that $ 33 33 1/3 was the sum to be paid?

Since the act of 1825, ch. 117, questions of variance between the allegation and the proof cannot be raised in this court, unless they were made in the court below.

The agent, a stockholder, of an incorporated company, (the defendant in the action,) who made the contract with the plaintiff, is not a competent witness for said company in regard to such contract. In such a case, the witness has a direct interest in the event of the suit, independently of his acts as agent.

All the surrounding circumstances of the transaction should be submitted to the jury, provided they can be established by competent means, and afford any fair presumption or inference as to the question in dispute. And in deciding upon the admissibility of such circumstances, it must be assumed, that the evidence proposed to be given would establish them to the satisfaction of the jury.

Where the general object and design of a charter is to create a company to transport passengers and merchandise from B. to P. and the company appoints an agent, such agency, unless otherwise proven, is limited to the business of the company, connected with, or relating to such object and design.

Where a company was incorporated, "for the purpose of establishing and conducting a line or lines of steamboats, vessels, and stages, or other carriages, between P. and B. for the conveyance of passengers, and transportation of merchandise and other articles," a contract by such company, for the breaking of ice and towing vessels through the track thus broken, such vessels being bound for V. is invalid, and cannot be enforced against them.

Corporations are not only incapable of making contracts which are forbidden by their charters, but in general they can make none, which are not necessary, either directly or indirectly to effect the objects of their creation.

It is no ground for refusing a prayer that the party has asked of the court, less than he was entitled to.

The circumstance that a corporation has entered into a contract, does not estop it from denying its competency to do so in an action brought against it, founded upon such contract. If such was the case, in reference to the corporation, the estoppel would apply equally to the other contracting party, and thus in effect, limitations upon the powers of corporations would be of no avail.

If the defendants in this case had been, by their charter, authorized to make with the plaintiff a contract to take the vessel, on board of which his merchandise was laden, through the ice, and there was no express agreement that they would be responsible to the plaintiff, for all losses or injuries which might arise, if the said vessel was not carried through in safety; then the defendants were only bound to use reasonable efforts, care, and diligence, and not bound to the extent of common carriers.

In such case if the loss does not result from the want of care and diligence on the part of the defendants, but from the default or omission of the agents of the plaintiff to avail themselves of the means of safety, when fully apprised of the danger to which the property is exposed, the defendants would not be liable.

The county court in instructing the jury, as to the facts which it would be necessary to find, to shew an adoption and ratification by the defendants, of the contract alleged to have been made by their agent, said, that if the consideration for such contract had been received by the agent, and paid over to the defendants, who retained the same, that then the said facts are in law an adoption of the contract, and as binding on them as if a previous authority had been given the agent. This instruction was held to be erroneous; first, because the jury were not required to find, that the defendants knew on what account the money was paid them,--and second, that the defendants knew the terms of the contract on which the money was received.  

COUNSEL:
GLENN, for the appellants, contended:

1st. The first question in the case relates to the admissibility of the proof of the loss, and is presented by appellants' first exception. Under this exception the counsel for the appellants insists, that the testimony was inadmissible for the reasons there specially assigned, and also because the goods alleged to have been lost are not sufficiently described in the declaration to entitle the plaintiff to offer evidence of their loss, or recover their value in this action; and that the court below erred in receiving the said testimony; on this question he cited: 1 Chit. Plea. 371, 319. Ib. 440, 442. Archb. on Plea. 170, 171. 2 Lord Ray. 1007. Ib. 1401.

2d point.--This arises under the appellants' second exception, and relates to the admissibility of the testimony of McElderry, the agent of the defendants, with whom the contract, upon which the plaintiff sues, was in fact made--and under this exception the counsel for the appellants contends that McElderry, although a stockholder in the Pennsylvania, Delaware, and Maryland Steam Navigation Company, was yet competent as the agent of the defendants to prove for the defendants [**62]  the contract made by him as such agent, and that the court below erred in rejecting his testimony. City Bank vs. Bateman, 7 Har. and John. 104, 109. Union Bank vs. Ridgely, 1 Har. and Gill, 408. Pal. on Agen. 279, 280. Theobald Agen. 318, 319.

3d point.--This arises under the third exception, and relates to the admissibility of the testimony of the witness Norris. And the appellants' counsel will contend that said testimony was admissible for the purposes specially stated in their said exception, and also as a part of one and the same transaction or enterprise out of which grew the contract with the plaintiff, tending to illustrate the origin and objects of the whole enterprise, to show the responsibilities which the defendants intended to assume under their contracts connected with said enterprise, and to show the want of authority in the agent, McElderry, to make the contract on behalf of the defendants as proved by the witness, Jones, to be responsible for the hazards of the enterprise. For which reasons they will contend that the court below erred in rejecting this testimony.

4th point.--This is raised by the third and fourth prayers in appellants' fourth exception, and [**63]  presents the same questions which are stated under appellants' first point, excepting that the fourth prayer conceding the testimony to be admissible, calls upon the court to say, that the proof offered of the causes and manner of the loss of the plaintiff's goods does not correspond with the causes and manner of the loss of the same as alleged in the plaintiff's declaration. And under this it will be contended, that the declaration limits the plaintiff to proof of a loss resulting directly from the defendants' refusal or neglect to perform their contract. That the allegation of nonfeasance does not entitle the plaintiff to offer proof of a misfeasance, and that there is a fatal variance between them, and that even if proof of misfeasance were admissible under the declaration, yet as the evidence when introduced shows that the loss did not result directly from such alleged misfeasance, but from the action of a storm as the proximate cause to which the vessel was exposed by the alleged failure of the defendants to perform their contract, the proof does not correspond with the declaration, and that for these reasons the court erred in rejecting said prayers. 1 Chit. Plea. 319. 3 Stark.  [**64]  Ev. 1557. 2 Kent, 443. Doane vs. Badger, 12 Mass. 69.

5th point.--This is presented by the appellants' first, second, and eighteenth prayers in fourth exception, and relates to the authority of McElderry to bind the defendants by the contract sued upon. Under these it is contended, that McElderry, as general agent of the defendants, had no authority to bind them by said contract; that said contract had no relation, and was no part of the business entrusted to him under said general agency; that the contract was without the scope of the charter powers of said defendants, and therefore not within the scope of his general agency, and that therefore the court erred in rejecting these prayers. Theobald on Agen. 259, 302. 1825, ch. 279, sects. 1 and 8. Wyman vs. Hallowell Bank, 14 Mass. 58.

6th point.--This arises under the appellants' eighteenth and nineteenth prayers, and relates to the competency of the defendants under their charter to make the contract sued upon. Under these it will be contended, that said charter did not give the defendants authority to make the contract, and that they may defend themselves in this action under such want of authority, and are not estopped [**65]  by the contract from alleging the want of power to make it. Under the charter, the company could not run to Virginia, nor interfere with other companies. Powers arising from express grant cannot be extended by implication. 2 Kent, 239-40, and cases there cited. When a corporation is authorized to act in a particular mode, this is a prohibition against acting in any other mode. Broughton vs. Salwood Water Works, 5 Serg. and Low. 216. New York Firemen's Ins. Co. vs. Ely, 2 Cowen, 699. Jackson vs. Campbell, 5 Wend. 572. A contract by a corporation does not estop her from calling it into question. This would seem to result from the necessity of acting through agents to whom no more power could be communicated than the charter authorized; the power of the company may be likened to the right of an individual to show a contract illegal, as against the provisions of the statute law or fraudulent; and the reason is stronger, as the other contracting party has the means of ascertaining the power of the company by a reference to the charter. Clark vs. Mayor of Washington, 12 Wheat. 40.

7th point.--This is presented by the fifth direction of the court, and relates to the court's opinion as [**66]  to what amounted in law to an adoption by the defendants of the contract made by their agent, McElderry. In opposition to this it will be contended, that the mere receipt of the money under the contract was not an adoption, unless the defendants or their agents received and retained it under a knowledge in fact of the contract actually made with McElderry, and that the said McElderry had transcended his authority in making it, or inserting stipulations in it on behalf of the defendants, incurring responsibilities for them, which he was not authorized to assume for them. Owings vs. Hull, 9 Peters, 629. Beall, et al vs. Cunningham, 3 Peters, 69.

8th point.--This relates to the duties and responsibilities of the defendants or their agents under the contract in question. Upon the hypothesis that it was not an express contract to carry the vessel through the ice in safety, and to be responsible for the hazards of the attempt to tow the vessel through the ice, and is raised by the appellants' thirteenth and fourteenth prayers, or rather by the fourteenth prayer, which embodies in itself the assumed facts of the thirteenth. The same question is raised but not so fully by the seventh [**67]  prayer.

Under these prayers it will be contended, that the defendants, if such was the agreement, were responsible only for ordinary care and prudence in the performance of said contract, or at least only for the degree of care and prudence mentioned in the prayers, and that under the state of facts assumed in said prayers they were not answerable for the loss of the plaintiff's goods. Caton vs. Rumney, 13 Wend. 389.

9th point.--This relates to the obligations of the contract, if even a contract to carry safely through the ice, and questions relative to it are presented by the appellants' thirteenth and fifteenth prayers. The prayers themselves exhibit distinctly the propositions for which we shall contend.

10th point.--This relates to the defendant's excuse for not returning immediately with the Hunter, upon finding her in the track, in the fact that the defendants' vessels were engaged in towing other vessels up the track, under a previous contract known to the plaintiff. The prayer (seventeenth,) sufficiently states the propositions to be contended for.

11th point.--This arises under the motion in arrest of judgment, and the reasons are there sufficiently stated.  [**68]  1 Chitty Plea. 321, 351, 353. 1 Saun. P. and E. 158. Cooke vs. Simms, 2 Call. 39. Chandler and Hart vs. Rossiter, 10 Wend. 487.

JOHN SCOTT, for the appellee, contended:

That the declaration was good in substance; corresponded with the contract proved, and that the motion in arrest came too late. He cited McKinstry vs. Solomons, 2 John. 57, 62. Diblee vs. Best, 11 John. 114, 117. 4 John. 237, 239. Close vs. Miller, 10 John. 94. He insisted that this was a case of nonfeasance, and not of misfeasance; that the object of pleading was to prevent surprise, and as the declaration covered all the goods on board the Hunter, more particularity was unnecessary and unreasonable. The case of Boyle, et al vs. Lauglin, in 4 Har. and John. 291, shows the responsibility of carriers, and is applicable to this case.

The fifth point on the fourth exception, including the first, and second, and eighteenth prayers of the defendants, rests upon the authority of McElderry to make the contract. After referring to the proof of his agency and the character of it, the counsel contended there was no difference of opinion as to the general rules regulating the conduct of general agents, but in this [**69]  cause the agent had the authority to make the contract, or if not the defendants had adopted it. That adoption might be by parol--all the facts show the co-operation of the company in every part of the transaction. The use of their boat, hands and property, with the knowledge of the defendants engaged in this transaction. The business of the defendants was connected with commerce and navigation. The mode of transportation was immaterial. It was along their line of travel, and there can be no difference between carrying the merchandise and towing the vessel which contained it.

Upon the sixth point he contended, that wherever there was an affinity between a charter and the practice under it, no harsh rules of construction were to be set up to deny the validity of the company's acts, and this principle answers the cases cited.

There is a distinction between a corporation endeavouring to enforce a contract, which it was not authorized to make, and being liable for a contract which it had improperly made. It is settled that they are liable for torts committed by their officers.

Upon the questions of the competency of the witnesses and admissibility of declarations under the [**70]  second and third bills of exceptions, he cited, Kemp vs. Baltimore Fire Ins. Co. 2 Gill and John. 108. City Bank vs. Bateman, 7 Har. and John. 104, 109, 110. Union Bank vs. Ridgely, 1 Har. and Gill, 325, 408. 2 Stark. Pr. 4, 752. Boyle, et al vs. Lauglin, 4 Har. and John. 291.

R. JOHNSON, for the appellee, further contended:

It is important to consider the points on which this cause went to the jury--for though some prayers were rejected in form, they were granted in substance.

The objections to the declaration only arise upon the motion in arrest of judgment.

In the first exception the proof of the contract by Jones, is stated, not as offered, but as proved to the jury--part of the exception relates to proof given, part to proof offered to be given. The objection below was to the part offered as inadmissible. The proof of the contract was received without objection, and the objection actually made was to the proof of its violation.

The third prayer in the fourth exception relates to the breach under the pleadings, and assumes the existence of the contract.

The fourth prayer in the same exception also admits the contract, and insists upon a variance between [**71]  the breach of the contract alleged and the breach as proved.

The first exception admits the contract, and the third and fourth prayers relate to the violation of it, admitting its existence, and yet they have been erroneously argued, as if they presented in this court the same questions.

Then the contract as proved by Jones, is in the cause, without objection, and it was to carry in safety, through the ice, the Hunter and her cargo.

The fifth, sixth, ninth, tenth, and twelfth prayers were granted.

The fifth prayer is confined to the vessel. The sixth prayer also supposes the contract relates only to the vessel.

Under the tenth prayer the jury were instructed, that if they did not find the contract as proved by Jones, the plaintiff could not recover.

I maintain that if the cause was put upon its true legal ground to the jury, this court will not reverse the judgment.

1. The cause was put upon the contract, if believed by the jury.

2. The plaintiff was bound to satisfy the jury by evidence, that the loss did not arise from the want of reasonable exertions to save the property on the part of his agents.

3. With reference to the proximate cause [**72]  of the loss, the success of the cause depended upon the want of reasonable skill in defendants' agents, and although the plaintiff used all reasonable skill, the loss resulted from the ice.

4. The immediate cause of loss put to the jury was the failure of the defendants to comply with their contract.

That the steamboats could have taken the vessel out by reasonable skill, is the hypothesis upon which the cause went to the jury, and if this could not have been done before the storm, the verdict must have been for the defendants.

The fifth instruction informed the jury, that if McElderry was a general agent of the company, still they must find a subsequent ratification of the contract, which was equivalent to an original grant of authority. The facts amount to a ratification, and are equivalent to an original express authority.

The argument then which places the cause upon the want of original authority to make the contract, and no ratification, must fail; for the question of ratification went to the jury who found it.

My object is still to show the actual points decided below. I call the attention of the court to the thirteenth, fourteenth, and fifteenth prayers.  [**73]  

The thirteenth prayer concedes that all reasonable efforts to take the schooner were necessary, and proposes that if the defendants' boats on their return to Baltimore, could have brought the Hunter back, and were prevented by the plaintiff, that this is an excuse. It in fact offers a violation of the contract as an excuse.

As to the fourteenth prayer, two grounds exist for sustaining the court's refusal to grant it.

1. The defendants considered it incumbent on the part of the jury to find an express and positive agreement on the part of the company to be responsible for the loss. It conceded Jones' proof of the contract, and that although the jury might find the defendants responsible in fact, still not liable.

2. The court granted it substantially by the tenth prayer and subsequent instruction.

The question of the contract, if embraced at all, is under the first and fourth prayers.

The first relates to the proof of the loss and want of description of the goods lost.

The fourth concedes the contract to be in evidence, and asks the court to decide upon its effect and the manner and proof of the loss.

It is evident so far as the first exception,  [**74]  and third and fourth prayers of fourth exception are involved, the contract as proved by Jones, was in evidence. The questions made were upon the breach, and the whole cause turned upon the fact of the finding of the contract, as proved by Jones.

The cause must be tested by the prayers actually granted by the court. We are not to consider all the prayers made, but the granted prayers and the instructions objected to below.

The law of the cause is to be found in the fifth, sixth, ninth, tenth, and twelfth prayers and the court's fifth instruction; and if the law there found be the law of this cause, there can be no error for a misdirection.

Three classes of objections are relied on.

The first assumes that in proof, the plaintiff has established a cause of action, by making out a contract and breach, but objects to the right to recover, because the pleadings in the form of action adapted are not legally sufficient.

That class embraces points upon the first exception, and upon the third, fourth, and sixteenth prayers of the fourth exception.

The second class presents as a defence, that the making of the contract was a violation of the corporate power, which [**75]  prevents the plaintiff from recovering against the corporation. It relies upon an asserted wrong to get rid of a contract for consideration.

This includes first, second, eighteenth, and nineteenth prayers under the fourth exception, and fifth and sixth points of the statement.

The third class presents objections on the merits; admitting a contract and relying upon its performance or a sufficient legal excuse for non-performance.

This embraces seventh, thirteenth, fourteenth, and fifteenth prayers of the fourth exception, making the eighth and ninth points of the statement and the seventeenth prayer, which constitutes the tenth point of the statement.

The fourth class of objections relate to the admissibility of the proof and the points which arise on the motion in arrest.

I propose to examine the second and third exceptions.

McElderry was a stockholder of the defendants' company. The general question involves the inquiry whether a stockholder in a private corporation can be a witness in its behalf. All that this court has decided in the three authorities cited, is that a stockholder may be compelled to testify against a corporation. The general rule, 1 [**76]  Stark. Ev. 105, 106, is that interest disqualifies a witness. The result of the case is, that if the judgment operates upon a fund in which the proffered witness has an interest, he is not competent. It does not depend on the extent of that operation. The law does not distinguish between that which will or will not operate on the witness himself, Angel and Aimes, 390. The exceptions relate to public corporations, in which the witness has no immediate personal interest. But the case of Union Bank vs. Ridgely, 1 Har. and Gill, 408, decides that the witness is only competent when within some settled exceptions. Then is this case an exception as argued on the other side? The fact to be disproved was the contract proved by Jones--and that the witness was the general agent of the defendants was the ground of the exception. If that constitutes an exception in this case, it constitutes an exception in all cases, consequently in the case of partners, and especially where all are not sued, and the one not sued is the person who made the contract, he becomes a witness ex necessitate. So of joint executors. Let it not be said, that in these cases the witness offered was contracting for himself,  [**77]  for such an exposition would let in legatees acting as agents for executors. The fallacy consists in a total misapprehension of the rule. The rule is that the evidence of the agent is let in in despite of the interest he has as mere agent; but as soon as the witness has any other interest, than that of agent, he is disqualified, and this construction covers all the cases. The exceptions must be established by decided cases. That in 1 Har. and Gill, 408, is an exception from necessity; for none but a corporator can have possession of the muniments of the corporation.

In the consideration of the third exception, it will be recollected that proof of the contract was admitted without objection. The arrangement referred to in D. Jones' evidence was mere inducement to the contract. He was ignorant of its particulars. Taylor proves that Meeteer declined making any contract, and all that Jones proved was his two vessels were to be carried out. If the cause depended on Taylor's evidence then no contract was proved. Taylor had no interview with McElderry, nor was Jones advised that any contract had been made by which the company was to be responsible. Then as to the evidence offered through [**78]  Norris, not one word relates to the contract proved by Jones, and admitted to the jury. Upon general principles the evidence of Norris was not admissible. Boyle, et al vs. Lauglin, 4 Har. and John. 291, 395. Each vessel had a separate contract made by his owner; one contract could reflect no light on the other unless it was brought home to the contracting parties. Norris' proof was not necessary to reconcile the proof of Jones and Taylor, for there was no contradiction between them, and we are not to suppose a contract for the purpose of admitting Norris' proof.

Under the first exception, and third, fourth, and sixteenth prayers, the objections relied on relate to a want of enumeration of the goods lost; and that the proximate cause of the loss, the storm, was not stated.

No distinction is taken between contracts verbal or in writing. It being a contract which could subsist verbally, the rules of pleading are the same. Then it results, that if a party in writing promises to carry a vessel and cargo, no nar is good which does not particularize the cargo. This is the objection relied on.

There are two great rules in pleading which provide:

1. That the defendant may [**79]  not be taken by surprise by general pleading, letting in proof which he could not have anticipated.

2. That the judgment which may be pronounced upon a particular nar, may not enure to the benefit of the party in another action.

Now it is competent to declare generally for goods sold; though it is said not for goods destroyed. In an action on a policy for cargo, the particular cargo need not be described. In an action flowing from contract where the breach is a tort, the goods it is said must be particularized. Why this distinction? The judgment is conclusive upon all subsequent actions upon the same contract; but as torts are several, and several may arise in the same transaction, hence the rule. To gratify the rule of justice, the defendant here is entitled to such a statement as reasonably informs him what he is called upon to answer; why then should a contract to carry a ship and cargo be more particularly stated than a policy on the same property? The proof quoad the cargo is the same in both cases. The general designation is warranted by principle in both cases. The defendant is entitled in both cases to such a description as would make the judgment conclusive upon [**80]  his contract. Under this contract there can be but one non-performance. A recovery which alleges non-performance, forever puts this question to rest; with reference to the breach the judgment must be conclusive. The plaintiff cannot divide his contract so as to entitle himself to several suits. There is this difference between contracts and torts. Where the averment is descriptive of the contract, it is fatal not to establish it by proof; not so as to torts. Now if the rule is so, if obliged to describe the cargo here, a mistake in describing either what is or what is not on board, would be fatal. In an action for freight the articles are not described. The contract is to carry; and the rules of pleading which guard against surprise and make the judgment conclusive, apply to this case. The courts must not so construe these rules as to lead to practical inconvenience. The rule contended for by the defendant will apply to mixed cargoes, and of any extent. It leads to complexity.

But even in tort, a case like this, it would not be incumbent on the parties to use any other terms than the party has here adopted. That which is agreed by stipulation to be the designation, shall be so [**81]  throughout; and it is not like the case of injury, independent of contract, for there the description is the only notice the defendant has.

The variance between the contract proved and alleged is not open on the record.

1. It is said the breach proved is misfeasance, and not non-feasance, as alleged.

2. That the proximate cause charged is not proved, while that which is proved is not admissible.

Upon the first objection I contend there can be but one non-performance; and consequently every breach of misfeasance is non-performance. Under the contract every hour of continuance in the ice was an hour of non-performance. The contract being to take the schooner out of the ice; the contract is not performed so long as she is in the ice.

Our opponents suppose that if the vessel was taken a short distance into the ice, that a failure as to residue is an act of misfeasance. Now such an objection relates merely to the degree or extent of performance, but it is still non-performance. If the plaintiff had declared for a misfeasance there would have been a variance.

The second part of this division refers to the statement of the loss in the nar, and proof refers to [**82]  the sixteenth prayer, and is to be considered in connection with the court's fourth instruction. It obliges the jury to find, that the vessel and cargo were lost by being left in the ice by defendants--and that the ice caused the injury, either by itself or by detaining the vessel until the storm arose.

Now the contract was to carry the vessel out of the ice--all damages from ice, however acting, produces the same liability. Under the court's opinion the ice either directly or remotely must be the cause of the injury. If it be necessary to describe the cause of the loss, every part of it must be detailed. Broughton vs. Salford Water Works, 5 Serg. and Low, 216. If the object of the allegation is to give notice of the ground of loss, and a special mode of stating the loss is necessary, then no partial cause, operating to produce a loss, could be given in evidence unless pleaded. As to special damages, see 1 Chitty, 386. Archb. Plea. 170. The cases where special damages are required to be averred, are those where the damages are not the legal consequence of violations of the plaintiff's contract. Legal consequences are not the subjects of pleading. Practically they are averred by [**83]  the general allegation of tort in slander: but if you sue for a tort, not in itself actionable, special damage must be averred. The cause of action is the special damage. In other cases, if the thing charged legally tends to damage, no special damage need be alleged. Here we are suing on a contract; a violation of it gives as a legal consequence a right to damages, per se a cause of action. The extent of the damages sounds in evidence; and all that was necessary to aver was a violation of the contract.

The first, second, eighteenth, and nineteenth prayers involved two questions.

1. Whether McElderry was authorized in fact to make a contract; which admits the authority of the corporation so to employ him.

2. Was it an authority which the company had power to grant?

It is shown in proof that he was general agent, and authorized to contract with reference to the steamboats. A general agent to contract is authorized to enter into all contracts which his principal might make. The limitations of his power are inter se. If he acts as general agent and so holds himself out, his power is to be considered without limitation, so far as the world is concerned. He binds his [**84]  principal without ratification. Then there is evidence to show a legal contract between plaintiff and defendants.

The fifth instruction actually given puts an end to this inquiry. The receipt of the money from the agent, who had received it qua agent, and retained by the principal is an adoption of the contract.

In what is the fifth instruction without proof? The fact of the collection of the money is proved by a clerk and agent of the defendants. Its non return to the plaintiff is proved by the absence of proof of a return. Then was the money paid over by the agent? It is immaterial whether the defendants actually received the money, or knowing it to be in the hands of one of their agents suffered it to remain there. Acquiescence in case like this, by the principal, is evidence of adoption. The authority to contract is conceded. It cannot be denied that some species of contract was entered into for the employment of their steamboats. Taylor, who denies that he contracted with the owners of the towed vessels, admits that he contracted with the defendants. A contract out of the usual course of their business; a contract to carry is conceded. Its terms and extent are in dispute.  [**85]  

The eighteenth prayer was properly over-ruled, unless it could be responded to yea or nay. It contained three distinct propositions. If either was wrong, the court was right in rejecting it. It must be considered with reference to the case made. It applies to the whole action, but in law does not cover it, as the jury might find other facts from the evidence consistent with it, and which still would be an answer to it. In this part of the case, the charter is out of consideration. The defence relied on is a private limitation of the power of the agent, and the plaintiff cannot be referred to that as engrafting a principle upon it, when he was ignorant of the fact.

Corporations may be guilty of a tort, and as they can only act by agents, they must be liable for torts committed by their agents. Angel and Aimes, 220. Gray vs. Portland Bank, 3 Mass. 364. Whether the tort was committed in the execution of one of the powers of the corporation is not material; for in such case the charter would not convey an authority to do wrong.

The doctrine contended for is, that a company who are common carriers within certain termini, may get clear of a responsibility of the same description,  [**86]  on the ground that they were not within their termini; although they received and retained payment for the carriage. The only cases proceeding upon such ground must be when the contract was repudiated, and not when the company hold on to its fruits. Whether the contract was to carry is not material on this question. The objection is, that it relates to a contract out of the limits of the charter. The ground of the decisions in such cases must be that it would be unjust to visit upon innocent stockholders, the consequences of acts not within the scope of their charter; and consequently not within the power of the company's agents. But still, I wish to see the cause which decides, that a corporation is not to be visited with the consequences of fraud and contrivance. The same rule must apply to corporations as to individuals. A stockholder would say that he looked to the charter and appointed his agent. He denies his contract, and this would be a fraud, if upon such contract he took the money of the other party. Chesapeake and Ohio Canal Co. vs. Baltimore and Ohio Rail Road Co. 4 Gill and John. 1. The entering into an unauthorized contract is no destruction of the franchise, and the [**87]  consequence is, that the corporation would reap the benefit of both legal and illegal contracts. Chester Glass Co. vs. Dewey, 16 Mass. 94, 100, 102. The consequences of illegal contracts by corporations are not matters to be urged by the contracting parties, but they act against the legislature who created the grant, and have the power of punishment. Let us look at the mischief of the doctrines maintained by this company. The agent purchases wood to carry out this contract. Its object is not covered by the charter. The incidental contract must fall with the principal one. Suppose the company had received the consideration of the principal contract, void as is contended, would it have to fulfil the incidental contracts which enabled it to earn the money? If the doctrine is sound, all the ancillary contracts are void. There can be no degrees as to want of power. Great and small, principal and ancillary contracts are all void, if any be void, for the want of power under the charter of the corporation party to a contract.

The motion in arrest of judgment rests on four grounds, all of which relate to the sufficiency of averments in setting forth the contract and describing the property [**88]  injured. As to any defect or inaccuracy in assigning a breach this is aided after verdict. The court will then intend that a sufficient breach was proved. Bartlett vs. Crozier, 15 John. 250. A failure in the description of the property is also aided after verdict.

Other objections insist upon a failure of consideration, or of averments to show a consideration paid. We are to look at the contract set forth. Is it void for want of consideration? This does not relate to the form of the averment. If it was a promise binding on the part of the defendants, the corresponding stipulation on the part of the plaintiff being complied with, no doubt of its validity--as far as this question is concerned, it is immaterial what form of averment shows the acceptance of the defendants' part of the contract. The plaintiff's vessel is embayed by ice--the defendants know it--they say, pay us a certain sum and we will take her out--and the plaintiff requested them to take her. Now what is this but an engagement to pay the money? If upon performance of the work the plaintiff was bound to pay, and the plaintiff accepted the contract, this makes it a binding contract. The plaintiff could not set up a [**89]  want of consideration. It is a case of promise for promise. The nar shows a consideration "to be paid by the plaintiff." This is a promise to pay by the plaintiff. It is the consideration money to the defendants. And taking the two allegations together, it constitutes an undertaking on the part of the plaintiff to pay the consideration. The objections yield a sufficient consideration, but insist upon a condition precedent, and that it should appear that it was performed or offered to be performed. But this is not a condition precedent; so far from it that only performance by defendants entitled them to the money. Averment of tender was therefore unnecessary. An offer to pay was also unnecessary, for the defendants refused to proceed with the contract. Allegre vs. Maryland Ins. Co. 6 Har. and John. 408. That the variance must be taken advantage of at the trial. Pike vs. Evans, 15 John. 210. That the averment of the consideration here was no condition precedent. Barruso vs. Madan, 2 John. 149. Not error if the jury was substantially instructed correctly. Bosley vs. Chesapeake Ins. Co. 3 Gill and John. 450, 472, and that it is not the duty of the court to do more than respond yea or nay [**90]  to a prayer. Maryland Ins. Co. vs. Bathurst, 5 Gill and John. 225.

MCMAHON in reply, for the appellants.

There are preliminary considerations in this case appearing from the proof, which shew the justice of this appeal. The origin and nature of the enterprise and the motives which led to it. It was for the benefit of commerce and did not pay any profit to the company, nor was it to be at any risk. The attempt to carry the vessels out was considered hazardous and of doubtful success. No compensation was to be paid if not successful. In its outset and in all its characteristics it was a public spirited enterprise; but they did not become insurers for its success or safety. The agents of the plaintiff entered into this contract with full knowledge, that the company did not mean to become insurers. With this knowledge the plaintiff's agent contracted with the defendants' agent, and in opposition to notice from the president of the company. In his uni-lateral contract, the plaintiff objected to paying until he got clear of the ice or upon the assurance that all danger was past. The company upon his construction would have to pay the loss without any premium. As regards the claim [**91]  for consequential injuries, the loss flowed from a refusal to adopt the means of escape after being awakened to a sense of danger; it is attributable to their own obstinacy. And in such a case the plaintiff objects to the company proving by the only means in their power, the agent who made the contract, the true nature of that contract. With these remarks I proceed to the first exception, and this objects to the admissibility of the evidence of Jones, Gundry, and Treacle, under the pleadings in this action. The declaration relies upon an undertaking to carry the Hunter out of port. There is no averment that the company had taken possession of the schooner for the purposes of the contract. It stands upon a simple contract of bailment, unaccompanied with a delivery. Delivery to the bailee is not averred, and therefore could not be proved. The contract is proved, but proof of delivery to or conduct of the bailee is material, but neither is averred. Our objection is not to the assignment of the contract nor the breach of it, but to the insufficiency of the assignment of the damages sustained. The damage itself is not sufficiently assigned. The cause of damage is not sufficiently assigned [**92]  or it is misalleged. This objection was made at the very first period it was competent to make it. There was no laying by; but it is taken at the threshold. As authorities to illustrate the distinction between general and special damages in pleading and proof, 1 Chitty Plea. 370, 440, 442, 443. 1 Saun. P. and E. 165. Arch. Civ. Plea. 170. 1 Chitty Con. 340, 345. Special damages are independent of contract, beyond the contract, and arise from contingent causes; the storm is such a cause. It may or may not arise. Those damages are contingent, which the law does not imply. Their existence must be shown. These effects must be proved, and liability for them must be averred. The books say it must be specially averred; its circumstances set forth, that the opposite party may be prepared to meet them. General damage is not traversable, but special damage is. The elements of special damage include, first, the action of the cause--second, that the cause produced the loss, and third, the responsibility of the defendants for it; as to how far it must be alleged, see 2 Chitty Plea. (edition of 1833,) 272, 317, 362, 367, 672, 675, 682. When a fact is to be stated it must be stated to a certain intent [**93]  in general. But here the general rules of pleading are rebuked, and in this nar the plaintiff has not described any mode of damage, while the object is to recover for an injury or damage to goods. The general rule is that the goods injured or damaged must be stated. This rule applies as well to contracts as to torts, and the rule is stronger with reference to contracts. For then it is an act of commission in which the wrong-doer is aware of his misconduct.

In all torts direct or consequential, particularity is necessary in the description of goods injured, and in a general way the kind of goods must be described. 1 Chitty Plea. 410, 411. The People vs. Dunlop, 13 John. 440. 1 Lord Ray, 1007. Ib. 1410. In all cases of contract and in actions for direct or consequential injuries to goods, the rule of pleading is the same. 2 Chit. Plea. 333, 356, 342, 669, (g.) Step. Plea. 340. 1 Saun. P. and E. 400. Franklin Ins. Co. vs. Jenkins, 3 Wend. 135. All these are cases of assumpsit, against carriers, to whom goods have been entrusted. The case of 3 Wendall is stronger than the one at bar, for defendants had not possession of the goods at the time of the injury.

The action of indebetatus [**94]  assumpsit is an exception to the rule. There the goods are delivered, the action proceeds on an executed consideration, and is not for the goods which are stated by way of inducement, but for the money. We have nothing to do with the hardship of the rule. If it exists the court will apply it. But there is no hardship in this particularity and there may be as many actions for consequential injuries as there are separate causes thereof.

The cause of damage is not sufficiently alleged or misalleged. Whereby and by reason is not a statement of the cause. Whereby refers to the previous allegation, and by reason of negligence, &c. does no more. To recover for any result from negligence it must be stated, 1 Saund. P. and E. 166. In cases of bailment, there is an averment of delivery of goods to bailee, and by reason of improper conduct or negligence in and about the management of the property bailed the damage occurred. But here the breach is an allegation of total non-performance. Under such an allegation a partial breach may be proved, which is not attempted here. The breach of the contract is here relied on as a cause of independent consequential injury.

There is an essential [**95]  distinction between misfeasance and nonfeasance. So if these defendants without reward agreed to carry the vessel out and then refused to take her, or without reward take her and leave her in the stream; the first case would not be the ground of an action, but the last on the ground of a part of execution of the agreement, and then improperly abandoning the residue would furnish a right of action; but for misfeasance there is a different form of declaring from nonfeasance. 2 Chitty, 329, 330, 331.

In this case neither non-performance nor misfeasance caused the loss--but the storm, which is not alleged. This is an independent cause for which damages are claimed, though not averred, and here such a loss cannot be proved. When there is a contingent independent cause of loss you must allege and prove it. 1 Stark. 366. 3 Stark. 1584. Where there is a wrongful act, and a loss thereby arises from an intermediate cause, the intermediate cause must be alleged. Fitzsimmons vs. Inglis, 1 Serg. and Low. 181, 182. 2 Chit. Pl. 682, 656.

The object of this action is to recover damages, and the pleadings are silent as to how it occurred. Whether during the detention, caused by non-performance,  [**96]  the vessel was robbed, or injured by collision, or stranded, seems to have been considered immaterial, and that any species of evidence could be offered.

As against common carriers who have possession, a general form of declaring is allowed, but delay is averred and the carrier is called upon to account for it. If sufficient it serves him as defensive matter. His contract is to carry safely, he takes all perils with certain enumerated exceptions, and must show the cause of loss. This description of causes furnishes no analogy here.

These objections are not obviated by the fourth instruction of the court given to the jury after the evidence was admitted.

The second exception relates to the refusal of the county court to receive McElderry's evidence. We insist upon its admissibility. He was not a party to the suit and only incompetent on the ground of interest. City Bank vs. Bateman, 7 Har. and John. 107. In the matter of Kep. 1 Paige, 614. Kemp vs. Baltimore Fire Ins. Co. 2 Gill and John. 108. Paley on Ev. 318. The exception to the rule is that interested agents are admissible. It is a conflict between general rules. All agents are competent witnesses. All interested [**97]  persons are incompetent. An agent who has an interest in a verdict and in swelling its amount is competent under the case in 1 Hen. Black. The same interest which will not exclude a witness in the case of an individual, will not exclude him when agent of a corporation. Many charters compel the use of interested agents as stockholders. Hence the rule is stronger in favour of a corporation, for they are equally entitled to protection. There is no difference between an interest arising previous to the contract, or made so by the contract itself, and yet it is said that the remote interest of an agent in the possible loss of a contract would disqualify him. One made agent by the command of the law, adopted as agent by both parties is competent. The case in Har. and Gill, 408, shows the exception to the general rule, and that it arises from necessity. It is well established with reference to individuals, and I ask its extension to corporations. There is nothing in the fact of its being rebutting evidence; Jones adopted McElderry as the agent of the company, and it would be iniquitous to exclude the evidence merely because it was rebutting.

The third exception relates to the evidence [**98]  of Norris. In this we suppose Jones had knowledge of the intention of the company not to contract to carry out safely--and contracted with a sub-agent--with knowledge that the company had given no such power to their agent and intended to assume no such responsibility. Would it not exclude the authority of a general agent to enter into such a guaranty? The law presumes that a general agent might so contract, but show in fact, that the other contracting party had notice of the limitation of the agent's powers and he could not then recover. This was all one enterprise. We are inquiring into one class of contracts to throw light upon another class of contracts growing out of the same enterprise. It was the same transaction, and not res inter alias acta, which answers the case in Boyle vs. McLaughlin, 4 Har. and John. 291. See 1 Stark. Ev. 10, 45, 46. Jones was the witness of the plaintiff and his agent. He had heard of the arrangement, and we propose to prove by Norris what the arrangement was. If brought home to Jones it must form a material inquiry in the cause. It was material as confirmatory of Taylor's evidence. 1 Stark. Ev. 527. There are no technical rules about confirmatory evidence,  [**99]  except to exclude suspicious evidence made post litem motem.

Under the fourth exception I propose to consider in connection the first and eighteenth directions prayed for by the defendants and refused by the court. These call on the court to announce the extent of McElderry's agency, and present two inquiries:--are not the propositions demanded correct--and were they granted in substance, by any of the subsequent directions of the court.

A general agent has no authority beyond the scope of the business confided to him. It is limited by the nature of the employment. McElderry's was with reference to passengers. This contract is different in all respects from any other he ever entered into. It was a new contract for employing the company's boats in a new mode. If this can be done we have misapprehended the nature of a general agency, which is a general employment in a particular business. A general authority is not an unqualified one. White vs. Westport, C. M. Co. 1 Pick. 220. Paley, 303.

It is said that corporations can have no general agents. Angel and Aimes, 107. Innocent stockholders are to be protected, and powers to agents as respects the corporation are on record [**100]  either by the charter or by-laws. I do not contend for this rule as corporations may be affected by implied assumpsits. But as far as the agents are limited by its charter, they cannot bind their principals beyond it. Bank of Columbia vs. Patterson's adm'rs. 7 Cranch, 306. 1 Cow. 537. Every authority must be exercised according to law. Every general agent under a charter is presumed to act under its authority and in conformity with it. Upon this principle the eighteenth prayer was framed, and hence the defendants are entitled to a verdict, unless a special authority existed in McElderry, or the company adopted his acts. Any other doctrine would place the company at the feet of the agent and oblige them to do what his malice or ingenuity might dictate. The proposition is monstrous, "I will not discuss it."

The tendency of the refusal of the court was to embarrass the jury, and it is material to ascertain whether in substance it is covered by any of the instructions given below. In the fifth instruction, the court did not put the plaintiff's right to recover upon the adoption of the company of McElderry's contract. It informs the jury what an adoption is, but does not treat of its [**101]  consequences. The cause went to the jury upon the question of general agency alone, and not upon the adoption of the contract.

The sixth point in the opening statement:

Does a contract by a company out of the limits of its charter, stop the company from denying it, preclude them from contesting it, whether made under a general agency, by special authority, or adopted by the company after it is made?

The company was chartered for the conveyance of passengers and transportation of merchandise and other articles. The prayer takes the language of the charter, and concludes that if the contract was out of the charter and has no relation to it, that the plaintiff is not entitled to recover. The plaintiff contended, if the contract was out of the charter, still he could recover. The rule is of importance and big with the fate of nations. The old rule was, that a specification was not an exclusion of powers not specified.

The case in 5 Serg. and Low. 218, was a suit against a corporation, where they had received value and set up a want of power against equity.

The settled rule of American law is, that every corporation is limited as to its powers, by the objects to [**102]  be accomplished--the sphere of action designated--and that a specification of the means of accomplishing its purposes, is an exclusion of all other means. 2 Kent Com. 239, 240. North River Ins. Co. vs. Lawrence, 3 Wend. 482. Angel and Aimes, 59, 60, 145. New York Firemen's Ins. Co. vs. Ely, 2 Cowen, 699. 5 Conn. 562; and the rule is illustrated by a variety of examples mentioned in the cases cited. It is owing to judicial foresight adopting these rules, that we now enjoy the benefits flowing from the use of corporate powers. What sort of propriety is there in the application of the doctrine of estoppel to such a case? The other view is protection of public rights, and keeps corporations within their restricted spheres, and why should the court close its ears to it. A corporation is a legal entity; out of its charter it has no existence. An objection derived from a want of power, is of a legal disability. Was there ever an estoppel against a legal disability? Infancy, usury and gambling are never closed by estoppel. The idea is, that both plaintiff and defendant must close their eyes, bind the courts and conclude the law. There is no estoppel against a statute. 2 D. and E. 171. This [**103]  is a highly instructive case, in which a corporation sued to disaffirm its own acts and recovered. It is as easy to estop a corporation as to its existence as to its powers, and then what becomes of the principle, that a corporation must act within its charter? Estoppels are reciprocal; yet it is fully settled that Dandridge as defendant could have shown, that this company could not have entered into this contract, and so turned the company out of court. Then answer the case from 16 Mass. The reciprocity of the estoppel relied on fails. Clark vs. Mayor, &c. of Washington, 12 Wheat. 40. Welland Canal Co. vs. Hathaway, 8 Wend. 484. There is no analogy between the doctrine and the proceeding for a forfeiture of the charter. The company is kept by it within its limits--restrained to its charter, but its existence is not forfeited. The proposition intended to be submitted to the jury was, whether the contract had any relation to the business of the company--the jury could not have hesitated. It is limited both by the termination and its objects. It was not established to break ice and become towers of vessels. The distinction is manifest between the charter and that of the Steam Towing [**104]  Company.

The seventh point of the statement is open here under the court's fifth direction to the jury. It is a question of adoption of the contract by the defendant. The instruction is that mere payment over of the money received by the agent from plaintiff--its receipt and intention under all the circumstances is an adoption of the contract without reference to the knowledge of the principal. Since this is the broad view of the court, I have a right to test it by a reference to any statement of facts, showing the ignorance of the principal. Beall, et al vs. Cunningham, 3 Peters, 69. Owings vs. Hull, 9 Peters, 629. Penn and another vs. Harrison, et al, 3 Term. R. 757.

Upon the motion in arrest of judgment two questions arise:--

1. As to the insufficient description of the goods damaged.

2. As to the want of averment of a sufficient consideration to sustain the contract.

I leave the first question on the argument of my colleague. Upon the second question. In the action of assumpsit the agreement and its elements are essential and traversable. The plea of non assumpsit puts in issue every thing of the essence of the declaration. Every thing of the essence of [**105]  the undertaking should be averred. Consideration is of the essence of assumpsit, and if none is shown, it is a fatal defect in every stage of the cause. Gould on Plea. 503, sec. 22. 1 Chitty, 328. There are two classes of contracts--bi-lateral, or uni-lateral, and founded either on an executed or executory consideration--a promise on each side or a promise on one side and assent on the other. It depends on the nature of the agreement, how the pleadings are framed. In cases of promise for promise each promise is necessary to be stated, for each is of equal import in sustaining the action. The reason for averring one applies to the other.

When the agreement is uni-lateral, the act to be done is as essential to be stated, is as material, as the promise in the other case. It is the condition precedent. The promise in one and the act done by the other are material to the action.

In all motions in arrest, the evidence is out of consideration, and the case is to be considered as if the exceptions were not in the record. Addington vs. Allen, 11 Wend. 384. Then this nar is either for a promise founded on a promise, or a promise founded on an act.

As a promise in consideration [**106]  of a promise. How is the promise of the plaintiff set forth? It is no more than a promise by the defendant with the reasons for it--a mere statement of a conditional promise on the part of the plaintiff. In cases of promise for promise, both are essential. They are facts of the same character--tend to the same end. Each is essential to show the obligation of the other. Chandler vs. Rossiter, 10 Wend. 491. 1 Chitty, 329. The court will not infer an assumpsit after verdict--and certainly not except where the agreement on both sides is stated. 1 Chitty Plea. 321. The case of mutual promises to marry illustrates the rule. 2 Chitty, 321. A nude pact is not aided by proof. Under this nar the plaintiff need only prove the agreement of the defendant.

In truth, however, this is not a case of promise for promise. It is a uni-lateral promise, where the promise of the defendant is founded upon an act to be done by the plaintiff, and the act to be done is not stated. Then it is the doing of the act which constitutes the consideration. Conditions precedent must be averred. 1 Chit. 351. This is a case without a cause of action set forth, which is fatal before or after verdict. 1 Saun. 158. Gould,  [**107]  504. The contract stated is to take the vessel and carry her in safety through the ice, for which the defendant is to be paid a priori. This is a contract of insurance. If the sum is not to be paid until the work is done, why is it in consideration of it, the defendant was to insure the vessel through the ice? It is in the nature of premium, and the work was not to be done until money paid. If the consideration is executory you must show that the party would have had the full benefit of his agreement, and therefore aver the promise before to do the act subsequent. There is no middle class. The cases are promise for promise, or promises in consideration of an act to be done. This motion is entitled to favour. It is not a case of sleeping and laying by. This nar was assailed from the first moment of trial.

With regard to a statement of mutual promises you must show, not only their existence, but their binding character on both parties. 1 Chitty Plea. 323.

The ninth point is raised by the eleventh, thirteenth, and fifteenth prayers.

These prayers concede that the agreement may have been as proved by Jones, and the right to legal or ordinary damages, but the sole question [**108]  here is as the consequent injury, loss of goods--and this involves--

1st. The plaintiff's power to save himself by his own exertions.

2d. His obligation to save himself through the defendants' exertions.

The thirteenth prayer proposes the second proposition above stated for consideration. The means of escape offered to the plaintiff and refused.

The principles were admitted by the court, but their application was refused.

Under these circumstances if the defendants' prayers had not been made, we might have had the benefit of those principles upon the court's instructions. But the court's directions to the jury taken in connection with the rejected prayers deprives us of that benefit. The court excluded our specific propositions, and hence in the consideration of the general instructions, though these cover the specific propositions, yet as the specific prayers were rejected, so the effect of the special means of escape from liability was not urged before the jury.

The general directions only relate to obligations to save them by their own exertions. The error of the court was in supposing that the crew of the Hunter could only exert themselves in one direction,  [**109]  the downward track, and not applying the rule to their obligation to come back, which is important upon the question of consequential damages. They were lying on a freezing night of an almost Russian winter, the captain and crew alarmed--some of them flying off under the apprehension of danger--the cargo in peril, and the plaintiff refuses the offer to come back with the vessel and the lost goods.

And lastly, there is a variance between the contract as alleged and proved. That alleged was against all risks, that proved was alone against danger from ice.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J. and DORSEY, CHAMBERS, and SPENCE, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*311]  DORSEY, Judge, delivered the opinion of the court.
The object of all pleadings is that the parties litigant may be mutually apprised of the matters in controversy between them. The declaration should substantially present the facts necessary to constitute the plaintiff's right of action, that the defendant being thereby forewarned of the nature of the proof to be preferred against him, may, if necessary, be prepared to contradict, explain or avoid it. The motion in arrest of judgment presents the question, as [**110]  to the sufficiency of the nar filed in this case. After stating the "loading of certain goods, chattels, wares, and merchandise," on board the schooner Hunter, without further specification thereof, it alleges, that the defendants undertook and faithfully promised the said plaintiff, that they, the said defendants, for and in consideration of the sum of thirty-three dollars and thirty-three cents, to be paid by the said plaintiff to the said defendants, would safely and securely take the said schooner or vessel so loaded as aforesaid, with the goods and chattels of the said plaintiff, from and out of the ice, and from and out of the harbour and port of Baltimore aforesaid, to and at such point, or place of safety, in the said river or bay, below where the same was frozen, and below where the navigation thereof was obstructed by ice as aforesaid, by breaking the said ice, and towing the said schooner or vessel to such point or place of safety as aforesaid. Yet the said defendants, not regarding their said promise and undertaking, and not regarding their duty in this behalf, afterwards, to wit, on the day and year aforesaid, at the county aforesaid, neglected and refused so to [**111]  do, although thereto requested by the said plaintiff, whereby and by reason of the negligence and improper 

 [*312]  conduct of the said defendants, and their agents, the said schooner or vessel was injured, stranded, and lost; and the aforesaid goods and chattels, wares and merchandise of the said plaintiff, became and were greatly broken, damaged and destroyed, and wholly lost to the said plaintiff.
The first reason assigned for arresting the judgment is, because the plaintiff's declaration does not show, or allege, any consideration for the defendants' undertaking and promise therein declared upon. This objection we think well founded, and is fatal to the plaintiff's right of recovery in the present state of his pleadings. The declaration sets out the promise and undertaking made by the defendants, but it alleges no agreement entered into between the plaintiff and defendants; it states no promise or obligation on the part of the plaintiff to pay the $ 33.33. Every allegation in the declaration may be true, and may have been proved on the trial, and yet no evidence has been offered to shew that there ever was any agreement between the parties, or promise by the plaintiff to pay [**112]  to the defendants the sum they required as the consideration for their services to be rendered. Their promise then was a nudum factum, and no action would lie for their refusal to perform.
We do not think the second reason assigned for the reversal of the judgment, can be sustained. The plaintiff was under no obligation to pay until the services were rendered. The performance of their part of the agreement, had such an agreement as is alleged been entered into, is a condition precedent to the right of the defendants to demand the stipulated remuneration.
The opinion of this court upon the third reason assigned, is sufficiently expressed in our views on the two preceding reasons.
The motion in arrest we also think supported by the fourth reason. To enable the defendants to make the requisite preparations to meet the proof against them, in a case like the present, some more certain and definite description should have been given of the cargo, than that of "goods, chattels, 

 [*313]  wares and merchandise." See Candler & Hart vs. Rossiter, 10 Wend. 487. Gould's Pl. 503. Stephen's Pl. 348. Martin vs. Henrickson, 2 Ld. Raym. 1007. [**113]  Wiatt vs Essington, 2 Ld. Raym. 1410.
We next approach the questions raised on the several bills of exceptions taken in the county court, and first as to the admissibility of the testimony offered to be adduced as stated in the first bill of exceptions. In our opinion the county court erred in admitting the testimony offered to go to the jury. It was inadmissible under the pleadings in the cause, because the facts, in proof of which it was offered had not been put in issue. The declaration simply charges the promise and undertaking of the defendants, their neglect and refusal to comply therewith, upon the request of the plaintiff, and that thereby the loss was produced. These were the only facts in reference to this exception put in issue by the defendants' plea of non assumpsit. To meet proof in support of them, he was bound to come prepared; but not to defend himself against a cause of action resting on facts essentially different from those put in issue. The charge alleged was in substance a total neglect and refusal by the defendants to perform their undertaking, whereby the loss accrued. The evidence offered was by necessary implication to contradict [**114]  such charge, and to shew that the defendants had not wholly neglected and refused to fulfil their promise, but that they had in part executed their engagement, yet in a manner so negligent, imperfect and improper, that the vessel and cargo were exposed to perils, to which but for such conduct they would not have been subject, and that thereby the loss accrued. Can it be said that in permitting such testimony to go to the jury, the sage and venerable maxim of the common law, "that the allegata et probata must correspond," would not have been violated. The materiality and importance of the proof in question upon the verdict of the jury, is manifested by the fact, that with it they gave a verdict for the plaintiff for $ 2,347.79; without it their verdict could only have been for nominal damages. It is true the plaintiff has alleged that 

 [*314]  the loss occurred not merely from the neglect and refusal of the defendants to perform their contract, but by reason of the negligence and improper conduct of the said defendants and their agents: but it has not been even suggested in the argument for the appellee, that so general and indefinite a statement, without any specification of [**115]  the acts of negligence and improper conduct complained of, would license the introduction of the testimony offered. Under the declaration before us, the plaintiff's right of recovery was limited to such damages only as naturally resulted from the defendants' total neglect and refusal to perform their contract; he was not at liberty to inflame them by the evidence alleged to have been offered in the first bill of exceptions.
In the argument on the part of the appellants, it has been urged that the contract proved in evidence, varies from that alleged in the declaration, and therefore was inadmissible before the jury. Two variances have been suggested: the first is, that the nar states to tow out the vessel and cargo safely and securely, which would cover losses from any and every cause, and the proof is of a contract to tow out the vessel and cargo, "free of damage of ice." This objection would be well founded if the defendants were in a condition to avail themselves of it in this court. The second variance is that the declaration states the consideration to be paid for towing out, to be $ 33.33, and the proof states it to be $ 33.33 1/3. The variance alleged is one-third part [**116]  of a cent. If this question were properly before us, we should hesitate long before we would declare that a difference between the allegata and probata of one-third of a cent, to represent which we have no coin, currency, or means of payment, was a fatal variance. But neither of these questions of variance are presented for our determination. The proof of the contract never was objected to in the county court, and surely since our act of assembly of 1825, such a question of variance cannot be raised in this court. The testimony to which objection was taken in the first bill of exceptions, was not that which proved the contract, but that which was "offered" 

 [*315]  to prove its imperfect execution, and the consequences ensuing. As authorities sustaining some of the views of this court on the points raised on the first bill of exceptions, see Archbl. Civ. Pl. 170. Doane vs. Badger, 12 Mass. 65. 2 Stark. Ev. 815. 1 Stark. Ev. 366. 2 Chit. Pl. 329 to 331. Fitzsimmons vs. Ingles, 5 Taunt. 534.
We concur with the county court in their rejection of McElderry as a witness for the purpose for which he was offered. Although [**117]  it has been in many cases determined that an agent is from necessity a competent witness to prove the terms of a contract made by him, even though in his character of agent he may gain or lose by the event of the suit, yet we have met with no case in which it has been held that a person having a direct interest in the event of the suit, independently of his acts as agent, can by being employed as agent, be rendered a competent witness to prove even the acts of his own agency. If the principle contended for in this case were sanctioned, it could scarcely be called an extension of the doctrine to say, that a co-partner selling for his firm, was a competent witness to prove the sale and the terms thereof, or that the like facts might be proved by an owner himself who disposed of his own property without the intervention of an agent. To this length we do not feel inclined to extend this principle of necessity, but rather concur with a learned commentator on the law of evidence, who in treating on this subject says, it is to be remarked that the law has been justly jealous of any extension of this rule, and that its operation, in consequence, has been very limited in practice. 2 Stark.  [**118]   Ev. 753.
The only question presented by the third bill of exceptions, is as to the admissibility of the testimony of Norris. It is correctly stated in 1 Stark. Ev. 46, that all the surrounding facts of a transaction, or as they are generally called, 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. The matter here in dispute in relation to which this evidence was 

 [*316]  offered, was, what were the terms of the contract between the plaintiff and defendants below, for the towing of the Hunter and her cargo out of the ice by the steamboats of the defendants. It was no part of the usual employment of their steamboats, or of the business of the defendants, but was an isolated enterprise in which they had consented to engage, not with a view to profit, but to accommodate the owners of vessels confined in the port of Baltimore by the ice, and they demanded nothing more for their services than reimbursement for the probable cost of the enterprise. That the amount paid by each owner was in proportion to the tonnage of his vessel, and that it [**119]  was the distinct understanding of the witness, at whose instance this enterprise was entered into by the defendants, at the time it was entered into, that they were to be at no risk, and were not to be paid any thing if they did not succeed in the enterprise. That the defendants expressed much reluctance to accede to this arrangement, and finally agreed to it on condition that a number of vessels offered to be towed sufficient to bear the cost of the enterprise; that a sufficient number was accordingly procured. In determining on the admissibility of the testimony offered, it must be conceded, that all these facts and circumstances would have been established by the witness to the satisfaction of the jury. It must also be conceded as a fact recognized by the common sense of every man, that a vessel with a cargo on board requires a greater power to tow her out than one of the same tonnage without cargo. The verity of Captain Taylor's evidence must also be conceded. Assuming then, the truth of the facts and existence of the circumstances enumerated, let us test their admissibility by the rule of evidence laid down by Starkie. Do they afford any fair presumption or inference as [**120]  to the question in dispute? In our opinion they do. The testimony of Captain Taylor is sufficient to warrant the jury, if they saw fit to do so, in finding that Jones knew before he entered into any contract for the towing out of the plaintiff's vessels, what the terms of the arrangement were. Without such knowledge is it to be presumed, 

 [*317]  that without making the slightest inquiry as to the terms, he would have directed the president of the company to "set him, Jones, down for two vessels?" Or if the jury should not find such antecedent knowledge in Jones, the proof of Captain Taylor was sufficient to justify the jury in finding a perfect willingness to assent to his vessels being towed out upon the same terms which by the arrangement were imposed on all other owners. Taylor also proves that Meeteer, after he had been directed by Jones to set down his two vessels, told him, "that the company would not be at any risk nor responsible for the property." With this communication, Jones does not appear to have expressed either surprise or dissatisfaction, nor does he countermand his order to set him down for two vessels. Standing alone, might [**121]  not the inferences deducible from Taylor's testimony, be legitimately urged on the jury, as if not wholly irreconcilable with Jones' proof of his contract with McElderry, at least as casting on it a shade of suspicion as to its accuracy? Is it probable that Jones would have exacted such terms? Was it an act of fair dealing in Jones, after acceding to the terms upon which alone the defendants assented to act, to procure from their agent a contract which they never authorized, and which was a wanton sacrifice of their interests? Was it probable that their agent ever entered into such a contract? Connecting these probabilities as to the accuracy of Jones in relation to the contract, with the testimony of Norris, that the defendants were to be at no risk--that each vessel paid in proportion to tonnage, and consequently that nothing was paid to the defendants for towing out the Hunter's cargo, nothing for the alleged insurance of either vessel or cargo, can it be contended, that all the facts and circumstances adverted to, when weighed in connection, were not proper to be submitted to the jury to find if they saw fit to do so, that Jones had mistaken [**122]  or mis-stated the terms of the contract on which the plaintiff had rested his right of recovery?
But there is another aspect of this question, in which we think the testimony of Norris ought to have been received. 

 [*318]  Jones had sworn that he had made one contract with McElderry. Taylor had sworn that the contract was made with Meeteer, and it was the province of the jury, not of the court, under all the facts and circumstances surrounding the matter in controversy (of which those detailed by Norris were a very material part,) to determine between whom the contract was made and what were its terms. To enable them to do this, the testimony of Norris was not only admissible but indispensable. We therefore think the county court erred in rejecting it. The case referred to by the appellee's counsel, of Boyle, et al vs. McLaughlin, has no bearing upon the question now before us. The court's rejection there of the clerk's testimony, in the fourth bill of exceptions is unquestionably correct, as had he proved that the habitual communications of Boyle, which he detailed, had been made to McLaughlin himself at the time of their contract, they could [**123]  not have been received in evidence, being offered to alter and change the written contract between the parties.
We think the county court erred in refusing the appellants' first prayer in the fourth bill of exceptions; the instruction which was asked from the court to the jury being the natural inference both of law and fact, not only to the extent of the prayer, but perhaps further might their instruction have been extended. In the law of Prin. and Agent, 259, it is stated, that by a general agent is understood not merely a person substituted for another for transacting all manner of business, but a person whom a man puts in his place to transact all his business of a particular kind, as to buy and to sell certain kind of wares, to negotiate certain contracts and the like.
The second direction also at the instance of the defendants ought to have been granted by the court below. In Angel and Aimes on Corp. 139, it is justly observed, that a corporation and an individual stand upon very different footing. The latter existing for the general good of society may do all acts and make all contracts which are not in the eye of the law, inconsistent with the great purpose of his [**124]  creation; whereas, the former having been created for a specific purpose, 

 [*319]  cannot only make no contract forbidden by its charter, which is as it were the law of its nature, but in general, can make no contract which is not necessary either directly or incidentally to enable it to answer that purpose.
In deciding therefore whether a corporation can make a particular contract, we are to consider in the first place, whether its charter or some statute binding upon it forbids or permits it to make such a contract; and if the charter and valid statutory law are silent upon the subject, in the second place, whether a power to make such a contract may not be implied on the part of the corporation as directly or incidentally necessary to enable it to fulfil the purpose of its existence; or whether the contract is entirely foreign to that purpose. In page sixty of the same book it is stated, "that a corporation has no other powers than such as are specifically granted, or such as are necessary for the purpose of carrying into effect the powers expressly granted, "and that a corporation is confined to the sphere of action limited by the terms and intention of the charter. [**125]  "
According to these wise and now well established principles the appellants had no power to bind themselves by such a contract as that attempted to be enforced against them, and possessing none themselves they could not delegate it to McElderry, their agent. At the instance of the defendants then the court should have granted the direction prayed for. The instruction should have been given if required without the qualification attached to it; but it is no ground for refusing the prayer of a party because he asks less than he is entitled to at the hand of the court.
It has been urged that the defendants having entered into this contract are estopped from denying their competency to have done so. To the doctrine of estoppel applied to such cases we cannot yield our assent. If the corporation is estopped from denying its power, the estoppel operates with like effect upon those who contract with them, and the result would be that no matter how limited the design and powers of a corporation may appear in its charter, practically it is a 

 [*320]  corporation without limitation as to its powers. Such a doctrine at this day is dangerous to the interest of the community, and is at [**126]  war with the modern decisions upon the subject. We therefore think the county court erred in refusing the second direction prayed for by the defendants. 5 Cow. 560. New York Fire Ins. Co. vs. Ely, 15 Johns. 383. The People vs. Utica Ins. Co. 3 Wend. 482. The North River Ins. Co. vs. Lawrence, 4 Kent 240. New York Fire Ins. Co. vs. Ely and Parsons, 2 Cow. 678. Broughton vs. Salford Water Works, 1 E.C.L. 215.
We think the court erred also in refusing to give the defendants' third and fourth directions for the reasons assigned by us in the consideration of the first bill of exceptions.
We think the court erred too in denying to the defendants their seventh direction. Could they have lawfully assumed the obligations imposed on them by such a contract as under this direction it was left to the jury to find, they were not answerable to the same extent that common carriers would have been. They were only bound to use reasonable efforts, care and diligence in the execution of their undertaking. Caton vs. Rumney, 13 Wend. 387.
We concur with the county court in refusing to give the [**127]  eighth direction contained in the fourth bill of exceptions. As far as that direction is concerned the defendants admit the legal validity of their contract, but require the court to instruct the jury that if they believe the facts therein enumerated, that then the plaintiff is not entitled to recover. These facts do not per se justify such a verdict as the court were called upon to direct them to give. Such an instruction could not have been given to the jury without withdrawing from them the determination of other facts, indispensable to such a finding as they were called on to make. Before such a direction could be given the court must have assumed as facts so conclusively proved as not to be left open for the consideration of the jury, that the defendants had used all reasonable efforts, care and diligence to tow the Hunter and her cargo through the ice. The proof in the cause by no 

 [*321]  means warranted such an assumption on the part of the court, and it rightfully therefore refused to withdraw from the jury the determination of those disputed facts, on which it was their exclusive privilege and duty to decide.
For the same reasons the court were right in refusing [**128]  to grant the plaintiff's eleventh direction.
The court below were right in refusing the thirteenth direction. It assumes without assigning any reason therefor, that it was not the duty of the defendants' steamboats upon their return up the track to tow out the Hunter and her cargo which had been left behind by misadventure. In the absence of all adequate excuse for not doing so, if the jury believe the contract as proved by Jones, it was the duty of the steamboats on their return to have towed out the Hunter and her cargo. This direction is not supported as has been supposed by the case referred to in 13 Wendall. Here the voyage, the business of the steamboat, was to tow the vessels safely out of the ice; according to Jones' testimony they were bound to use all reasonable efforts within their power to accomplish that end. In the case in Wendall the steamboat was bound on a regular trip from port to port. With a knowledge of this fact, the plaintiff, the owner of a small boat, applied to the master of the steamboat to tow his freight boat down to the steamboat's port of destination. The master told him he thought his boat was too heavily laden to be [**129]  towed down, as the south wind was rising. The plaintiff said he was very anxious to get down, and he must and would go, and accordingly fastened his boat to the steamboat and the vessels proceeded on their voyage. The plaintiff's boat filled with water and sunk, and the court determined that the master of the steamboat was only answerable for reasonable care and diligence, and the court predicate their opinion upon the ground that the master of the steamboat was not the insurer of the plaintiff's boat, and therefore ordinary care and diligence was all that was required of him. But the inference is irresistible, that if there as here, according to the proof of Jones, the defendant had been the insurer of 

 [*322]  the plaintiff's vessel, he could not have discharged himself but by the use of extraordinary care and diligence.
The county court erred in refusing to grant the defendants' fourteenth direction. If the jury had found the facts submitted to them by the prayer, the agents of the defendants had used all the efforts to perform their contract, which under the circumstances of the case were imposed on them by law, consequently the plaintiff had no cause of action against [**130]  them.
We think the county court were right in refusing the fifteenth direction of the defendants; as to discharge the defendants under it, the jury must be satisfied that the loss was occasioned by the default or misconduct of the agents of plaintiff, and this fact is not committed to the finding of the jury with that distinctness and certainty, with which it ought to have been. It is true the jury were required to find that the commander of the Hunter was aware of the danger of his situation. But the magnitude of the danger they were not required to find. Their verdict was to have been the same, whether the danger was such as to render the loss of the vessel in the highest degree probable, and would therefore have been avoided by every commander of ordinary skill and prudence, or whether the danger of loss was so light and trivial, that under the circumstances in which the Hunter was placed no commander of ordinary skill and prudence would have suffered her to be towed back to the port of Baltimore. The court should have granted the direction prayed; provided, that in addition to the facts submitted to them, the jury also found that such was the perilous situation [**131]  of the Hunter, that no commander thereof of ordinary skill and prudence would have refused to avail himself of the offer of being towed back to the city of Baltimore.
The court below erred in rejecting the defendants' sixteenth instruction, for the reasons assigned by this court in disposing of the first bill of exceptions.
The county court we think were clearly right in refusing to grant the defendants' seventeenth direction upon this obvious 

 [*323]  ground if all others were wanting: There was no evidence to have been left to the jury to find the fact, that at the time Jones contracted with McElderry for the towing out of plaintiff's vessels, he knew the steamboats were under contract to tow other vessels up the track on their return to Baltimore.
The county court in our opinion erred in refusing to instruct the jury as required by the defendants' eighteenth and nineteenth directions, for the reasons we have given in examining the correctness of the county court's refusal of the second direction.
We think also that the court below erred in their fifth opinion and instruction to the jury, as to what facts it was necessary to find,  [**132]  to shew that the defendants had adopted and ratified the contract alleged to have been made between Jones and McElderry. The cause of action in this case arose after the 20th December, 1831, and the suit was instituted in less than ten days thereafter; no proof was offered that the defendants ever had any knowledge of the terms of the contract proved by Jones, to have been made by him with McElderry, or that the agent who collected the money for the towing out of the plaintiff's vessels ever paid the defendants the amount collected by him, or communicated to them the fact that any such money had been collected, or on what account it was collected. The court however instructed the jury, if the consideration for the towing out of the plaintiff's vessels, as agreed on between Jones and McElderry, was collected by one of the defendants' agents, on their way out of the ice, and paid over to the defendants, who have ever since retained the same, as also all the other money that was received from the other vessels towed out of the ice at the same time, "that then the said facts are in law an adoption of the contract, under which said money was paid by plaintiff, and [**133]  that said contract is as binding on defendants as if there was clear evidence of a precise authority from defendants to McElderry, to enter into said contract on their account. This instruction is erroneous on two grounds. 

 [*324]  First, that the jury were not required to find that the defendants knew on what account the money paid to them was received. Secondly, that the defendants knew the terms of the contract on which the money was received. If the jury failed to find either of these facts, and they were not instructed that the finding of either was necessary, they were not at liberty to find, nor is it an inference of the law that the defendants adopted the contract under which the money was paid. See Bell and others vs. Cunningham, et al, 3 Peters 69. We concur with the county court in its opinion on the second bill of exceptions and in the rejection of the eighth, eleventh, thirteenth, fifteenth, and seventeenth directions asked by the appellants in their fourth bill of exceptions; but dissenting from its pro forma decision on the motion in arrest of judgment, and from its decisions on the first and third bills of exceptions,  [**134]  and from its refusal to grant the first, second, third, fourth, seventh, fourteenth, sixteenth, eighteenth, and nineteenth directions prayed for by the appellants in their fourth bill of exceptions, and also dissenting from the fifth opinion and instruction given by the county court to the jury, we reverse their judgment.
As the appellee in no aspect of his case is entitled to recover; no procedendo will issue.
JUDGMENT REVERSED.  

30 of 41 DOCUMENTS 

THE BANK OF MARYLAND, AND MORRIS AND GILL, Trustees vs. ANDREW RUFF, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 448; 1836 Md. LEXIS 38 

June, 1836, Decided 

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

On the 24th of April, 1835, the appellees claiming to be creditors of the Bank of Maryland, filed their bill in the court of Chancery against the appellants, in behalf of themselves and the other creditors: praying that Morris, Gill and Ellicott, the trustees appointed for settling the affairs of the Bank, might render an account of the manner in which they had executed their trust; for an injunction to restrain them from receiving of the debtors to the Bank, at the par or nominal value, its notes, certificates of deposit, and other liabilities, and for the appointment of Receivers to take charge of its effects, books of accounts, &c.

The bill alleged that the complainants and those they were authorized to represent, were creditors of the Bank of Maryland to the amount of five hundred thousand dollars. That being thus creditors, the Bank on the 23d of March, 1834, suspended its banking operations, and has not since resumed them, and was, and is, largely insolvent, and without the means presently, or ultimately of paying its just and acknowledged debts. That on the said 23d of March, 1834, at a meeting of but six of the directors, a resolution [**2]  was passed, that a deed of trust should be at once executed by the Bank, of all its effects to Thomas Ellicott, in trust for the equal payment of all its liabilities in the first place, and for the distribution of any balance which might remain among the stockholders. That a deed with such provisions was accordingly executed on that day; which was subsequently, on the 26th of the same month and year, confirmed by another deed with similar provisions. That on the 5th of the following April, at a meeting of the same number of directors, it was resolved that Morris and Gill, two of the appellants should be associated with Ellicott in the trust, and that a deed conformably therewith, was accordingly executed on that day; and that the trustees under the last mentioned deed, took possession of the property and books of the Bank, and proceeded to the collection of the claims due to it. That among the resolutions adopted at the first meeting of the directors on the 23d of March, was one which gave to the debtors of the Bank the privilege of paying their debts in its notes, certificates of deposit, &c.; and that the trustees under the supposed authority thereof, and in opposition to the rights [**3]  and interests of the complainants and other creditors, have from the beginning, and still continue to receive from the said debtors of the Bank, its notes, certificates of deposit and other liabilities, at their full nominal amount, without regard to the time when they may have been obtained, or of the fact of notice of the assignment to the trustees, supposed to have been effected by the deeds of trust. That the trustees by this course have inflicted deep injury upon all the creditors of the Bank, who had a right to insist, that its debts should be collected in current money, and the avails equally and rateably distributed among them. That so far as the resolution giving this privilege to the debtors of the Bank, is to be regarded as a part of the deeds of trust; the same are fraudulent and void, and should be vacated and annulled, as unjust and injurious to the creditors, and in evasion and fraud of the act of Assembly of December session, 1832, ch. 306.

The deeds and resolutions referred to, were exhibited with the bill. And the Chancellor (Bland) on the 25th of April, 1835, ordered an injunction according to the prayer of the bill, with leave to the defendants to move for [**4]  its dissolution, at any time after filing their answers, on giving five days notice to the complainants, or their solicitor.

Afterwards, on the 29th of June, 1835, and before the defendants had answered the complainants, upon obtaining leave, filed a supplemental and amended bill, in which the utter and hopeless insolvency of the Bank is reiterated; and the belief confidently expressed, that the entire assets of the Bank in any manner available to its creditors, was not, and would not, under any circumstances, be more than sufficient to pay from thirty to fifty per cent. of the aggregate amount of its debts, and that consequently, the creditors alone could have an interest in the administration of the trust; the eventual provision for stockholders being necessarily pro forma and nominal merely. That although no possibility existed of benefit to the stockholders from the assets of the Bank, yet its corporate franchises might be made valuable to the creditors, if placed under their control, by embarking their individual resources and credit, in the business to which the possession of those franchises would entitle them; but which could not be expected, nor would perhaps be authorized [**5]  in persons standing in the relation which the trustees occupied towards the institution. But, that nevertheless this possibly valuable resource is denied to the creditors, in consequence of a very large proportion of the stock, to which the corporate franchises are attached, having been assigned to the Bank, and having passed with its other property to the trustees under the several deeds before referred to.

The supplemental bill further charges, that there are persons who at one time stood in confidential relations to the Bank, who by mismanagement of its funds and affairs, have made themselves personally responsible for heavy pecuniary losses sustained by it, (materially contributing to its failure,) who by a proper and diligent exertion of the evidence and means now in the possession of the trustees, might be legally or equitably subjected to the payment of the same; but that said trustees (or a majority of them) have not yet, nor do they seem disposed to adopt the necessary steps for that purpose, to the great and serious injury of the complainants and the other creditors. And that whilst with reference to the persons referred to, the trustees have not displayed that zeal [**6]  and diligence, which the interests of their cestue que trusts require; they have with regard to another class of persons, who are supposed to be liable for the calamities which overwhelmed the Bank; pressed prosecutions both civil and criminal against them, in a manner and with an ardor as unjustifiable for its severity, as their conduct to the first mentioned persons is unbecoming for the opposite quality; though the complainants do not charge the trustees, or either of them, with any corrupt or dishonest purpose, or wilful, or advised design to sacrifice the interests of the creditors to favour or partiality. That a majority of the trustees claiming to administer the trust, according to their own peculiar opinions, have disregarded and overruled the wishes and opinions of their co-trustee, (Ellicott) and of the great mass of the creditors; and have denied the complainants such access to the books and papers of the Bank as will enable them to decide upon the conduct of said trustees, in reference to the management of its concerns. That by means of holding a majority of the stock in virtue of the before mentioned deeds, the said trustees (or a majority of them) persevere in electing [**7]  as directors of the said Bank, persons not acceptable to the great body of the creditors, and indisposed to co-operate in re-establishing it in a manner, which they believe would conduce to their advantage. That said trustees (or a majority of them) have committed various breaches of trust, for which they are liable personally to their cestue que trusts; and that they are not collectively, or individually in circumstances adequate to their responsibility for the property of the Bank in their hands; and that having given no security for the faithful performance of their duties, the creditors are on that account, in danger of suffering great and heavy losses. That under these circumstances, the complainants and the great mass of the creditors applied to the said trustees to surrender the trust, which one of them (Ellicott) agreed to do, but the other two, have hitherto evaded a compliance with said request upon various, frivolous, and unfounded grounds, and thus the persons who alone are interested in the trust, are excluded from all participation in its administration. That waiving all objections to the manner in which the trust was originally reposed in the said Ellicott; the complainants [**8]  now in consideration of his willingness to resign, are willing to regard him as the sole trustee, and insist that all the acts of his associates without his express approval are clearly illegal and void. That the deed of the 5th April, 1834, under which they claim power to interfere in the execution of the trust, purports on its face no title to any sanction, from any persons beneficially interested in the original trust to Ellicott, but such as are mentioned under the vague description of various creditors of the Bank, none of whom however the complainants allege, ever did give their assent to it. That if the president and directors had power, and could legitimately make any of said deeds, then the title of the corporation was irrevocably divested by the two first, and transferred to Ellicott, the trustee, when the last was executed; and that as the power of Ellicott under the deed to him was simply to dispose of the fund, in a regular administration of the trust, he could not alone, or jointly with the corporation, change or new model the trusts confided to him, or the persons of the trustee as originally created, without the assent of the creditors of the Bank, or a majority of [**9]  them in amount.

This bill like the original bill, concluded with a prayer for an injunction; the annulling of the deed of trust to Morris and Gill; the appointment of other trustees; the appointment of a Receiver; and for general relief.

By an order of the same day, the Chancellor ordered, that the application stand for hearing on the 4th of the then ensuing August, upon notice to the defendants, &c.

Morris and Gill in their answer say, that they neither admit nor deny that the complainants are creditors, and represent creditors of the Bank to the amount they allege, which from the form in which the claims exist, they have no means of knowing of their own knowledge, and the evidences of which the complainants have omitted to exhibit.

They admit that the Bank on the 23d day of March, 1834, being then in insolvent circumstances, and unable either presently, or ultimately to pay its debts, suspended banking operations; and they say, that on that day, at a meeting of seven of the directors, it was resolved that a deed of trust should be executed of the property and funds of the Bank and that accordingly, and in pursuance thereof, the first deed to their co-trustee Thomas [**10]  Ellicott was executed, and sealed with the corporate seal of the Bank, and signed by the President, who is by the charter, himself a director, thus giving to the conveyance the sanction of eight directors, and that said conveyance was accepted by said Ellicott, with the knowledge and approbation of creditors to a large amount. They admit, that the deed of the 26th of the same month, was executed to confirm the preceding one; and charge, that the subsequent deed to them, from the Bank and Ellicott, was the result of the recommendation of a large meeting of creditors, at which some of the present complainants were present, and in whose proceedings they actively participated, and fully concurred. They deny, that the said deed of the 5th of April, 1834, to them was made by the Bank of Maryland of its own motion, and without solicitation from its creditors. On the contrary, they maintain that the execution of it proceeded from their urgent recommendation; and was decided on, and directed to be executed at a meeting of seven, and not six of the directors, as is alleged in the bill. They admit, that after the execution of the last mentioned deed, they and their co-trustee, accepted and entered [**11]  upon the duties of the trust; in the administration of which, they considered it their duty to receive in payment of debts due the Bank, its notes, certificates of deposit, and claims against it, at their par, or nominal value; without reference to the time of their acquisition, by those who offered them in payment; and that in pursuance of such, their supposed duty, and in conformity with the opinion of the legal advisers of the trust, they continued so to receive them, until the 5th of June, 1834, when upon the application of a large creditor of the Bank, to the Baltimore county court for an injunction, they agreed to, and did suspend their proceedings in this respect, until the opinion of the highest appellate tribunal of the State, could be obtained of its legality. That accordingly the question was submitted to the judges of the Court of Appeals, during the June term of that court, when those judges decided, that the conduct of the trustees in this particular, was according to the law, and consequently, that no injunction to restrain them could issue. They further say, that at the same time, when the judges of the Court of Appeals pronounced this opinion; they also decided, that [**12]  the several deeds of trust, mentioned in the bill, were valid and binding instruments for the purposes, and objects mentioned in them; and they further charge, that a similar decision was made by the Court of Appeals, at a subsequent term, in a proceeding by the State of Maryland as a creditor, against them as trustees. They deny that their course in the administration of the trust, has been unjust, injurious, or oppressive to the creditors; and confidently affirm, that their earnest endeavour has been to fulfil faithfully their duty, and to conform in all respects, strictly to the law.

The answer further alleges, that the continuance of the former injunction, or the appointment of a Receiver would be attended with consequences of serious embarrassment and loss to the creditors of the Bank, by impeding the collection of debts now in progress of liquidation,--retarding the prosecution of suits now depending, or in contemplation; and jeopardizing the safety of claims, which may be lost by delay; and all this, without the slightest corresponding advantage to any one interested.

In answer to the supplemental bill, they say, that the dividend which will ultimately be made, among [**13]  the creditors of the Bank, depending essentially upon the result of suits instituted by them for the recovery of its assets, cannot at this time be stated with any degree of certainty. They cannot say, whether the creditors alone are interested, in the execution of the trust, though looking to the present posture of its affairs, they are persuaded, that the interest of the stockholders is merely nominal. They admit that prior to the suspension of payment by the Bank, eight hundred shares of its stock, were transferred to it as security, by persons who had taken its money, to the amount of four hundred thousand dollars; that by the deed of trust this stock became vested in them, and in virtue thereof, they have caused the same to be transferred to their names, and are thus enabled, and do in fact control the election of directors, and shall continue to do so, until certain suits which they have caused to be instituted against the persons who appropriated the money of the Bank to themselves, upon its pledge shall have terminated. They deny however, that they have the sole management of the corporate franchises of the Bank, or that they have attempted or ever contemplated, the exercise [**14]  of any improper or sinister influence over the directors; or that prior to the last election, which took place on the 7th of March, 1835, the complainants, made any application to them, on the subject of directors.

They insist, that with regard to this stock, as also in their endeavours to find out who are really indebted to the Bank, and successfully prosecute the claims which may be due it; they have been actuated by an honest desire, faithfully to discharge their duty--favouring no one class, at the expense of any other; but diligently, impartially, and earnestly exerting all the means and facilities in their power, to administer the trust, with the utmost possible benefit to all interested in it, notwithstanding the various undefined inferences, and vague insinuations to the contrary, with which the supplemental bill is filled.

The answer further says, that so far from evincing a contumacious disregard of proper inquiries on the part of the complainants, they have promptly, and to the best of their ability, furnished them with all the information they ever desired. That the assets of the Bank, as converted into cash, have been deposited in the banks of Baltimore, or in [**15]  other safe hands, and having never appropriated one cent to their payment, or in any manner to their own use; they consider themselves individually and collectively, quite able to meet the responsibilities incurred by the trust, as much so, as are the complainants to answer their own engagements. They deny that they claim solely by the appointment of their co-trustee Ellicott, or that they have excluded him from all participation in the management of the trust; on the contrary, they have given to his opinions and propositions all the respect which they seemed to deserve, co-operating with him, when they considered him right, and differing from, and overruling him only, when they thought him wrong. They deny that the complainants proposed to release them from responsibility, if they would resign their trust, but in the genuine spirit of usurpation, they demanded that the respondents should surrender the evidences of their conduct to unknown, and irresponsible successors, without even exhibiting to the respondents any authority from a majority of creditors, requiring their resignation; which they are advised and believed would subject them to the danger of great loss, and which they [**16]  are under no obligation to comply with.

The defendant, Ellicott, answered separately, and after admitting the truth of many of the statements in the bills, he professed his willingness that the trust should be remodelled, or placed in other hands; at the same time, insisting on the perfect fairness of his own conduct, and claiming to be compensated for the trouble and services which he had performed.

Bland, Chancellor, on the 23d of May, 1836, after considering the written arguments of the solicitors of the parties, ordered that the injunction granted by the order of the 25th of April, 1835, be continued until final hearing, or further order; and that an injunction be issued, and Receivers be appointed in conformity with the application and order of the 29th June, 1835.

The operation of this last order was subsequently suspended upon the petition of the defendants, Morris and Gill, and the questions being again submitted to the Chancellor, upon the notes of their solicitor, his honour on the 8th of June, 1836, re-affirmed the said order, and directed its execution according to the terms thereof.

Appeals were then prayed by the defendants, Morris and Gill, and the [**17]  Bank of Maryland, from the several orders of the 25th of April, 1835, and the 23d of May, and 8th of June, 1836.  

DISPOSITION:
ORDERS REVERSED AND INJUNCTIONS DISSOLVED.  

HEADNOTES:

By the acts of 1818, ch. 177, and 1824, ch. 199, debtors of banks in the State, are authorized to pay their debts in the notes and certificates of deposit, due by such banks, and this, whether the banks are solvent or insolvent.

Does the clause of forfeiture, for refusal to pay specie, contained in the 4th sec. of the act of 1818, ch. 177, apply to banks, found upon full investigation of their concerns and situation to be in a stable condition, Qr. Semble, not. And does not the clause apply exclusively to insolvent banks?

The constitutionality of the acts of 1818, ch. 177, and 1824, ch. 199, has been decided affirmatively by the Supreme Court of the United States.

The object of the resolutions of the directors of the Bank of Maryland, authorizing the debtors of that institution to pay their debts in the notes and certificates of deposit of, and open accounts, due by such bank, was to confer no new privilege upon such debtors, but to extend to them only rights which had been antecedently created, and secured to them by the laws of the State and of which, it was not in the power of the directors to deprive them. There could be no fraud therefore in providing for the enjoyment by debtors, a privilege already bestowed on them by the law

Where the charter of a bank requires seven directors to make a quorum, and the President is declared to be entitled to all the powers and privileges of a director, a meeting of the President and six directors constitute a sufficient board for the transaction of business.

A court of Chancery will not condemn or disturb that, when bona fide done, which upon application, Chancery would have directed to be done; but must regard and treat it, just as if it had been done by the order or authority of that court.

So where a bank in insolvent circumstances, transferred all its effects to E in trust, for the equal benefit of its creditors, and the trust being a very extensive and complicated one, and almost too difficult and important to be managed by any one person, a public meeting of its creditors, was soon after called, where it was determined to unite two other trustees with E, and he, and the Bank, agreed that two other trustees, recommended by such creditors through their committee, should receive transfers of the property from E and the Bank upon the same trusts originally confided to E; the whole being done bona fide and openly, Chancery will not disturb it, nor in the absence of mal-practice on the part of such trustees, require them to give bond for the due execution of the trusts.  

COUNSEL:
ALEXANDER, for the appellants, contended.

1. That the injunction granted upon the first bill should be dissolved, because prior to the deeds of trust the debtors to the Bank were authorized by the provisions of the acts of 1818, ch. 177, and 1824, ch. 199, to pay their debts in the notes, &c. of the Bank, at their par value, and that such privilege was not extinguished by the operation of those deeds. On the contrary, the privilege is expressly affirmed by the resolutions of the board, authorizing the making of the deeds, which resolutions under the circumstances are to have the same effect, as if their terms were incorporated in the deeds. Union Bank of Tennessee vs. Ellicott, Morris and Gill, 6 Gill and Johns. 363. The State vs. Bank of Maryland, Ib. 205.

2. All fraud in the execution of the conveyances being denied by the answer to the original bill, no legal intendment can be resorted to, for the purpose of imputing fraud to them, on the ground of their affirming rights secured by the existing laws to the debtors [**18]  of the Bank.

3. That the president of the Bank, is a constituent member of the board of directors within the meaning of the act of incorporation of 1790, ch. 5. sec. 7, and consequently, the resolutions of March and April, 1834, were passed by competent authority, but that at all events, neither they or the conveyances, can be impeached on that ground by creditors, so long as the stockholders acquiesced in them.

Upon the supplemental bill he insisted, that all its equity was sworn away by the answer, leaving nothing for the orders founded on that bill to rest upon, but the allegation of differences of opinion between the trustees and the creditors, in reference to the mode of administering the trust, and the averment, that the latter distrusted the motives and capacity of the trustees, allegations and grounds altogether insufficient to justify such orders.

4. That the alleged inadequacy of the trustees' private estates, to answer for any possible breach of trust, furnishes no grounds for their removal, no material change in their circumstances is charged to have taken place since their appointment; and if it was not then an objection to reposing the trust in them, it [**19]  cannot now be good cause for their dismissal. Ex parte McWilliams vs. Graham, 1 Mad. Rep. 86. 1 Wms. Ex'rs, 120. Hathornwaite vs. Russel, 2 Atk. Rep. 126. Anonymous, 12 Ves. 4.

No counsel argued for the appellees.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*459]  BUCHANAN, Ch. Judge, delivered the opinion of the court.
The Bank of Maryland has proved a fruitful source of litigation, which for the good of all concerned cannot be too soon put an end to.
The several deeds of trust mentioned in these proceedings are now for the third, and the claim of the debtors of the Bank, to pay and discharge their debts to the Bank in the notes and certificates of deposit issued by said Bank, at their par, or nominal value, or amount, the second time brought before us.
In the case of the Union Bank of Tennessee vs. these same trustees, Ellicott, Morris and Gill, 6 G. & J. 363, the application was for an injunction, to prohibit the trustees from receiving the notes and certificates of deposit of the Bank of Maryland, in payment of debts due to that Bank. And the then sitting members of this [**20]  court, being unanimously of opinion that the deed of trust of the 5th of April, 1834, was a valid and effectual deed, for the purposes therein expressed; and that the trustees, Ellicott, Morris and Gill, were not only authorized but bound, by the provisions of the acts of 1818, ch. 177, and 1824, ch. 199, to receive the notes and certificates of deposit issued by the Bank, in payment of debts due to the Bank, at their par, or nominal amount or value, whether obtained before or after the execution of the deed, by the debtor or debtors of the Bank, offering them in payment, an order directing an injunction to be awarded was refused.
In the case of the State of Maryland vs. The Bank of Maryland and these trustees, Ellicott, Morris and Gill, 6 

 [*460]  G. & J. 205, in which the State claimed to be paid fifty odd thousand dollars, due from the Bank on deposit, out of the funds in the hands of the trustees, in preference to the other creditors, it was held by this court for the reasons there assigned, that the deed of trust of the 5th of April, 1834, was valid and effectual to transfer all the property of the Bank to the trustees, and that the preference [**21]  which the State had in the payment of its claim, so long as the title to the property remained in the Bank, was defeated by the deed of trust. And it was only on the ground that the deed of trust was good and valid, to pass the title of the Bank to the property covered by it to the trustees, that the preference claimed by the State was lost.
The State's right of priority in the disposition of the funds sought to be affected in the hands of the trustees, depended upon the question, whether the title of the Bank had been transferred and vested in the trustees for the general and equal benefit of the creditors, before the assertion of the right or attempt to enforce it by the State. And but for the operation of that deed, (being anterior in date to the institution of proceedings by the State,) which was ruled to be valid and effectual to vest the title in the trustees, the claim of the State to be preferred to other creditors would have prevailed, and upwards of $ 50,000 been withdrawn from an equal distribution among the general creditors. And now, the validity of that very deed and the right of the debtors to the Bank of Maryland, to pay their debts to the [**22]  Bank, in the notes and certificates of deposit, issued by that institution, at their par or nominal value, and the authority of the trustees so to receive them, are again called in question by a portion of the creditors of the Bank.
In this case the insolvency of the Bank of Maryland is expressly charged, and the complainants seek to have the deeds of trust annulled, the appointment of Receivers, and an injunction prohibiting the trustees from receiving in payment of debts due to the Bank, any notes of, or certificates of deposit by, or other claim, &c. against the Bank.

 [*461]  In the case of the State vs. The Bank of Maryland, and these trustees, the Bank was also charged and admitted to be insolvent; and in the case of the Union Bank of Tennessee vs. these trustees, although the insolvency of the Bank, is not expressly charged in terms; yet it is alleged in the bill, and not denied that there would be a large deficiency of assets of the Bank; and the Bank was considered and treated, both by counsel on both sides in argument, and by the judges of this court, as an institution in insolvent circumstances; and so expressed to be in the two first deeds, which are recited [**23]  in that of the 5th of April, 1834, under which these trustees have acted.
It was in that view of the condition of the Bank, that the decision was made in each of those cases, and no reason is now perceived for departing from the opinion expressed in either. The resolutions of the 23d of March, 1834, and of the 5th of April, 1834, passed at special meetings of the directors, professing to give to the debtors of the institution the privilege to pay their debts in notes of the Bank, or in certificates of deposit or open account due by the Bank, were then, and are now considered of no importance; the same right and privilege being held to be given and secured to the debtors by the acts of 1818, ch. 177, and 1824, ch. 199, which right and privilege so conferred, we think it was not in the power of the Bank to deprive them of, and that they were not extinguished or lost to them, by operation of the deeds or either of them, though they should be considered as standing alone, independent of, and not controlled by those resolutions, but remained and still remain unimpaired.
With respect to the question, whether the acts of 1818, ch. 177, and 1824, ch. 199, giving to the debtors of banks the [**24]  privilege to pay their debts in the notes and certificates of deposit of such banks, relate to solvent banks or to such as are insolvent, or not in a condition to meet their engagements; it seems to us, taking the two acts and their different provisions together, that if the legislature had in view one condition of a bank more than another, they looked to 

 [*462]  banks in insolvent circumstances, or to banks not in a condition to meet their engagements.
The first section of the act of 1818, ch. 177, gives to "any person having a claim, or holding a note of any bank in this State, under fifty dollars, after demand of payment of such claim or note at the Bank, and refusal or neglect to pay, the right to recover judgment for the same before a single justice of the peace." The 4th section authorizes "any county court in the State on application, supported by affidavit, that a Bank located in the county refuses to pay specie for its notes, &c. to issue a scire facias directed to such Bank, to show cause why its charter shall not be declared forfeited by the judgment of the court." The 5th section authorizes the court, "after a full investigation of the concerns and situation [**25]  of such bank, if in their judgment and opinion, the public interest shall require it, to declare and adjudge the charter of the bank to be forfeited."
The 6th section directs, "that the court declaring, and adjudging the forfeiture of the charter of any bank, (if in their opinion, the interest of the creditors shall require it,) shall appoint three commissioners to settle and close the concerns of the bank." And the 13th section provides, "that in payment of any debt due to, or judgment obtained by a bank or banks, in this state, or by the commissioners which may be appointed under the provisions of this act, the note or notes of the bank, to which the debt is due, or by, or for which the judgment has been obtained, shall be received at the full value contained in the promise made by such note or notes."
The 1st section of the act of 1824, ch. 199, provides, "that any certificate or certificates of deposit issued by, and with the authority of any banking institution in this state, shall be, and is hereby declared to be a good and sufficient tender in law, and set off by, and on the part of the holder of said certificate or certificates, for the full value thereof, against the bank [**26]  or banks, which shall have caused the said certificate or certificates to have been issued:"--and the 2d 

 [*463]  section declares, "that each and every of the said institutions shall be, and they are hereby required to receive the respective certificates of money deposited in their respective banks, in payment of debts due to the said banks, &c."
Now it seems difficult to suppose, that the Legislature in authorizing and requiring of the courts, to adjudge the charters of banks to be forfeited, if after a full investigation of their concerns and situation, in their judgment and opinion, the public interest shall require it; and in making it the duty of the court adjudging the forfeiture of the charter of any bank, if in their opinion the interest of the creditors shall require it, to appoint commissioners to settle and close the concerns of such bank, as they have done by the 5th and 6th sections of the act of 1818, ch. 177, intended that those provisions should only be applied to banks, found upon a full investigation of their affairs to be solvent, and capable of managing their own concerns, and the forfeiture of whose charters could seldom be required, either by the [**27]  public interest, or the interests of their creditors, and not to insolvent banks, or banks found upon a full investigation of their concerns and situation, to be unable to meet their engagements, and incapable of managing their affairs, and the forfeiture of whose charters may be required, both, by the public interest, and that of their creditors.
It is no ground for adjudging the charter of a bank to be forfeited, that it is in a flourishing and stable condition, either as regards the interests of the public, or of its creditors. And the circumstance that the court is required, before adjudging the charter of a bank to be forfeited, to be satisfied from a full investigation of its concerns and situation, that the public interests demand it, and on so adjudging, to appoint commissioners to settle and close its concerns, shows that those provisions are applicable at least, if not exclusively so, to insolvent banks; unless it can be supposed, that the Legislature intended to put down banks, that should on investigation be found to be solvent, and useful, and to protect, and continue in operation such as should prove to be insolvent. 

 [*464]  A supposition that we do not feel ourselves [**28]  authorized to indulge in. And the 13th section authorizing the payment of a debt due to a bank, in the notes of such bank, also authorizes similar payments in discharge of judgments obtained by commissioners appointed to settle and close the concerns of banks, whose charters may be adjudged to be forfeited; which shows the intention of the legislature to have been to extend the privilege to the debtors of insolvent banks, and not to confine it to the debtors of solvent institutions alone.
But it is believed that the legislature intended to confine it to the debtors and notes of neither description of banks, but to extend the privilege to the debtors of all banks, whether solvent or insolvent. The language of the 13th section, "that in payment of any debt due to, or judgment obtained by a bank or banks in this State (that is, any bank or banks, &c.) the note or notes of the bank to which the debt is due, or by which judgment is obtained, shall be received, &c." is too broad and comprehensive to admit of any other construction. To confine it to the case of a solvent bank, would, it is conceived, be to pervert the obvious meaning of the terms used, and to defeat the intention [**29]  of the legislature, which was to extend a benefit to those who may be indebted to banking institutions, and particularly insolvent banks. For if confined to the case of a solvent bank, the privilege would seldom be enjoyed; as a debtor to avail himself of it, would have the difficult task imposed upon him of showing the solvent condition of the institution. And when established, if he could succeed in doing it, the privilege of paying his debt in the notes of such a bank, more than of any other, would be of but little value to him. Whereas it may often be a very great relief and benefit to a debtor, of an insolvent bank, to have the privilege of paying his debt in the notes of that bank. And by gratifying the terms of the law, in applying it to the case of all banks, whether solvent or insolvent, that privilege and benefit will be secured to him without inquiry into the condition of the bank.

 [*465]  The same observations will apply with equal and greater force, to the act of 1824, ch. 199, the title of which is, "an act relating to the banks of this State." That is, all the banks of the State. And the words of the 1st section, "any certificate or certificates [**30]  of deposit, issued by any banking institution in this State, &c." and on the 2nd section, that each and every of the said institutions, shall be, and they are hereby required to receive the respective certificates of money deposited in their respective banks, in payment of debts due to the said banks," are too explicit to admit of argument. "Any certificates of deposit, issued by any banking institution in this State," and "each and every of the said institutions," must embrace every bank in the State, solvent or insolvent, and the certificates of deposit issued by any of them. Besides, of what benefit would it be to debtors if confined to the case of a solvent bank? For who doubts, that independent of the act of assembly, any debtor to a solvent bank may set off against the debt, the certificates of deposit of such bank? If any doubt should be entertained as to the constitutionality of these laws, it is enough to say, that, that question has been decided affirmatively by the Supreme Court of the United States.
The charge in the bill, "that the several deeds of trust and resolutions (under which the deeds were made) were executed and passed [**31]  fraudulently, and against the rights of the complainants and the other creditors of the bank," is we think, in nowise sustained. The object of the resolutions was to confer no new privilege upon debtors; but to extend to them only rights, which had antecedently been created and secured to them by the laws of the State, and of which it was not in the power of the bank to withhold or deprive them. There could therefore be no fraud or prejudice to creditors, in admitting or providing for the enjoyment by debtors of a privilege already bestowed upon them by law. And we perceive as little objection to the deeds which we hold to be good and valid. Indeed it is not understood that they are called in question, except so far only, as the resolutions 

 [*466]  in favour of debtors may be deemed and taken to be a part of them, or as regulating the administration of the trust. With respect to the resolution of the 5th of April, 1834, under the authority of which, the deed of trust to these trustees was executed, it appears that it was passed at a meeting of seven directors of the bank including the president; and the president being by the charter, declared to be, "entitled to all the powers [**32]  and privileges of a director, we think that the provision of the charter requiring seven directors to make a board was gratified by a meeting of the president and six others; and that so assembled they constituted a sufficient board for the transaction of the business of the bank.
As to the deed of trust to these trustees, it was made under circumstances of a peculiar and imposing character; and it is sufficient to remark in addition to what has been heretofore said and done, in relation to the same subject, that subsequent to the appointment of Thomas Ellicott, as a sole trustee, (being a very extensive and complicated trust, and almost too difficult and important to be confided to, or managed by any one person) there was a large meeting of the creditors of the Bank of Maryland, including some of these complainants, and presidents, and cashiers of other creditor banks in Baltimore, convened in pursuance of public notice; at which a committee of creditors was appointed for the purpose of promoting the general interest of the creditors, of which one of these complainants was a member and acted as such. That committee determined that there ought to be other trustees associated [**33]  with Thomas Ellicott, and appointed a sub-committee, (two of whom represented two of the creditor banks) to confer with the then sole trustee, Thomas Ellicott, on the subject, who agreed that the committee of creditors should nominate one co-trustee, and that another should be nominated by Judges Archer and Dorsey. The committee nominated John B. Morris, and the judges named Richard W. Gill, which nomination being approved by the committee, the resolution of the 5th of April, 1834, and the deed of trust of that date to Thomas Ellicott, and John B. Morris, and 

 [*467]  Richard W. Gill, as adjunct trustees was passed and executed. So that it appears that Morris and Gill were nominated to, and appointed by the bank as associate trustees, after notice to and consultation with a large body of the creditors, and with their consent and approbation, and the consent of Thomas Ellicott, and with a view to the proper administration of the affairs of the bank. There does not appear to have been any fraud, surprise, secrecy or improper contrivance, in the procurement of this deed; nor any design to injure the creditors or any of them. On the contrary,  [**34]  the whole proceeding seems to have been fair, open, and in good faith, and to have had for its object, the interest and equal benefit of all the creditors.
If the same creditors, (the trust being of such great magnitude and involving many, and extensive interests) instead of proceeding as they did, to procure a deed of trust to be executed by the bank, appointing associate trustees with Thomas Ellicott, had applied to the court of Chancery, with the knowledge and consent of Ellicott, and of the bank, to effect their object, it is not doubted that the Chancellor would have decreed the same thing to be done. And sitting as a court of Chancery, and acting upon an acknowledged principle of that court, we cannot condemn or disturb that, when bona fide done, which upon application, Chancery would have directed to be done; but must regard and treat it just as if it had been done by the order or authority of that court.
Looking to this case, as it is presented to us upon the bills, answers and exhibits, we can perceive no fraud or malpractice on the part of these trustees; nor any improper negligence or partiality in the execution of their trust, or other violation of the duties [**35]  imposed upon, or confidence reposed in them, to entitle the complainants to the injunction prayed, or to require or authorize the appointment of receivers.
Having received their appointment at the instance of a large number of creditors, whose confidence they enjoyed without being required to give bond, for the faithful discharge 

 [*468]  of their trust, and having done nothing to forfeit that confidence, they too being creditors of the Bank of Maryland, and Morris, at the time also the president of a creditor bank; and no unfavorable change in their condition or circumstances, appearing to have taken place since their appointment, nor cause to apprehend any, their not having given bond furnishes no ground for the interposition of Chancery.
If they have done wrong in receiving in payment of debts due to the bank, the notes and certificates of deposit issued by that institution, they were misled by the decision in the case of the Union Bank of Tennessee, and the error was ours; but we have seen nothing to render us dissatisfied with that decision.
ORDERS REVERSED AND INJUNCTIONS DISSOLVED.  

31 of 41 DOCUMENTS 

PATRICK DOUGHERTY vs. BERNARD MCCOLGAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 275; 1834 Md. LEXIS 22 

December, 1834, Decided 

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

The appellant on the 7th of March, 1832, filed his bill against the appellee, alleging that being indebted to the appellee in the sum of $ 500, for the purpose of securing the payment of the same, he conveyed to him on the 7th of November, 1828, by a deed absolute upon its face, certain leasehold property in the city of Baltimore, and at the same time, took from the appellee a bond conditioned for the reconveyance of the property, upon the payment of the said sum of money, at the expiration of twelve months from the date thereof. That the appellee entered into, and has remained in possession of the property from the date of the deed, receiving to his own use the rents and profits, and notwithstanding the appellant has offered to repay him the $ 500, refuses to re-convey, agreeably to the condition of his bond, denying the appellant's right of redemption, and asserting an indefeasible title in himself. The prayer of the bill is, for an account and re-conveyance, upon the payment by the appellant of whatever sum may be found due from him to the appellee, and for general relief.

The answer admitted the execution of the deed, and defeasance,  [**2]  as charged in the bill, but alleged that after the expiration of the period limited for the payment of the money, which was originally loaned on the 13th of May, 1828, on mortgage of said property; the appellant not being able to pay the debt, the time for doing so was by agreement of parties extended for three months, with the understanding, and it was so agreed, that should the appellant fail in the payment at that time, the conveyance to the appellee, notwithstanding the defeasance, should become absolute. That the respondent remained in the undisturbed possession of the premises, from the date of the deed to the time of filing the present bill, without any demand or claim being made upon him in any shape, and that he had at that period just erected and completed new improvements thereon, at an expense of $ 720, which, together with taxes, insurance, ground rent, &c. and the interest for three years on the $ 500, make an aggregate of $ 1458 78, which the said property has cost him, whilst the total of the rents received by him is but $ 217 74. And the respondent submits, that no decree in the premises should pass, without the re-payment, or securing to him the re-payment of the [**3]  amount due, in the event of a sale for less than the sum so owing to him as aforesaid.

After the return of a commission, under which several witnesses were examined, the Chancellor (BLAND,) on the 9th of September, 1833, decreed, that the parties account with each other before the auditor, concerning the mortgage debt, the rents and profits, and the value of the permanent improvements; being of opinion that the complainant could only be permitted to redeem, upon paying for the lasting improvements made upon the property, under all the peculiar facts and circumstances of the case. From this decree the complainant prosecuted an appeal to this court.  

DISPOSITION:
DECREE AS TO THE ALLOWANCE REVERSED, WITH COSTS.  

HEADNOTES:

Where there was a loan of money, and a mortgage given on the 13th May, 1828, as a collateral security for the repayment of it; and on the 7th of November, 1828, an absolute deed for the same property was given by the borrower to the lender, who executed a bond for the reconveyance of the same property at the expiration of twelve months, upon the payment of the same sum of money for which the original mortgage was given as collateral security, a court of equity will determine from the facts and circumstances connected with the course of dealing between the parties, whether a conditional sale or mortgage was intended in fact by the parties.

A transaction constituting a mortgage cannot be converted into a sale; therefore the leaning of courts of equity in doubtful cases is against the lenders of money, and they hold such cases rather to be mortgages than conditional sales.

Whenever the intention is to take a security for a subsisting debt, or for money lent, and to avoid or restrict the equity of redemption, Chancery seeking to protect the debtor against the rapacity of the creditor, and to do full and equal justice between the parties, will defeat such intention, by treating the transaction as a mortgage.

A covenant to pay the debt or to repay the money lent, is not an indispensable ingredient in a mortgage. If a security for the money is intended, that security is a mortgage, though not bearing upon its face the form of a mortgage.

When the relation of mortgagor and mortgagee is once established, though the equity of redemption may be sold or disposed of to the mortgagee, yet unless the transaction appears to be fair, and unmixed with any advantage taken by the mortgagee of the necessitous circumstances of the mortgagor, equity will hold the parties to their original relation of debtor and creditor.

It is a general principle in Chancery, though not without exceptions, that a mortgagee in possession, is not to be allowed for new improvements erected upon the premises.

A mortgagee before foreclosure is not the substantial owner, nor under any obligation to make any repairs, but such as may be necessary.

Where the property mortgaged exceeded in value the sum lent, and where there was no proof that it had begun to fall into decay; where there was no proof the houses upon the premises were in a ruinous state, and that the mortgagee pulled them down and built new ones as substitutes; where there was no long continued possession, and acts of ownership by a mortgagee, and acquiescence by the mortgagor, with no claim of the right to redeem; where the mortgage was executed and the improvements commenced about three years after, and not finished when a bill to redeem was filed, and where the mortgagor during the whole term kept up a continual claim of the right to redeem, and had no notice of the design to put up new improvements, IT WAS HELD, upon a bill to redeem, that the mortgagee could not claim to be paid for new buildings, which he had erected upon the mortgaged premises, but must surrender the property upon the payment of his debt and interest.  

COUNSEL:
McMahon, for the appellant.

When a deed and defeasance are executed on the same day, they constitute a mortgage, as does every transaction, no matter what shape it may assume, whose object is to secure the re-payment of money, or the re-imbursement of a pre-existing debt; and the question therefore is, shall a mortgagee, whose possession has not been of long duration, be allowed for new improvements, not essential to the beneficial enjoyment of the property, and whilst the [**4]  mortgagor continued to assert his equity of redemption. 1 Powel, 4. (a, note 2.) Ib. 120, (note 1.) A mortgagee cannot create an incumbrance on the property, binding the rights of the mortgagor, and every accessorial advantage is for the benefit of the mortgagor, except so far as it enhances the security of the mortgagee. A mortgagee is not entitled to be re-imbursed for his personal attention. 1 Powel on Mort. 295, (B.) Nor is he allowed for the expense of insurance. 5 Pick. 270. 1 Hop. Ch. Rep. 283. Neither is he allowed for repairs to pre-existing buildings, unless such repairs are necessary. 4 Ves. 480. 1 Powel, 189, (A,) 196. 5 Pick. 270. New buildings for new purposes cannot be made, nor expenses not necessary incurred. 1 Johns. Ch. Rep. 387. 2 Pick. 505. 12 Ves. 493. 3 Pow. 957, (note A.) If by the decree of the court of Chancery, a mortgagor is let into possession of the premises before the time stipulated in the contract, then, in that case, the mortgagee will be allowed for improvements; because when made, he had a right to anticipate the enjoyment of the property, until the expiration of the stipulated period, and if he is deprived by decree of that advantage, it is but [**5]  equitable that he should be reimbursed for his improvements. 1 Vern. 183. 7 Con. Rep. 377, 384. 2 Sch. and Lef. 661. 1 Powel, 374.

It may be contended that this is a conditional sale, and not a mortgage; but that question is not before this court. The decree of the Chancellor treated it as a mortgage, and the defendant has not appealed; and for the same reason, it cannot be objected, that the bill does not make a tender of the money. That the transaction in its origin was a mortgage cannot be questioned; and an agreement formed at the time, or subsequently entered into, restraining the right of redemption would not be valid. 1 Powel, 124, (A.) Ib. 120. (note.) An equity of redemption it is true may be sold, but it must be for a valuable consideration, which was not the case in reference to the agreement here, relied on as an abandonment of the right to redeem. 5 Gill and Johns. 75.

Frick, for the appellee.

1. The agreement to extend the time of payment for three months, converted the mortgage into a conditional sale.

2. But if that was not the case, still under the circumstances of this case, the mortgagee should be allowed for the permanent improvements. The possession [**6]  by the mortgagee was not taken under the mortgage of May, 1828, but under the deed of November following, and the improvements were not made until after the appellee supposed his title to be indefeasible. He supposed himself the actual owner of the property, and the error, if it was an error, was an honest one, for which he should not be made to suffer. 5 Gill and Johns. 75. Besides the mortgagor stood by, and saw those improvements made, and then to be allowed to redeem merely upon the payment of the original debt, when by a timely objection he could have saved the mortgagee the cost of the improvements, would be a fraud upon him which no court will tolerate. 5 Harr. and Johns. 147. 6 Peters. 716. 2 Harr. and Gill. 191.

The cases referred to on the other side, are cases of clear unequivocal mortgage, in which the right to redeem was indisputable. 1 Johns. Ch. Rep. 387. 3 Powl. 957, (A.) 5 Harr. and Johns. 312, 313. 1 Wash. Rep. 14. 1 Vern. 137. 7 Cranch. 240.

3. But at all events the mortgagor was bound to have tendered the money, and the tender should have been contained in the bill. 6 Harr. and Johns. 100, 134.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J., and STEPHEN,  [**7]  and CHAMBERS, J's.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*279]  BUCHANAN, Ch. J., delivered the opinion of the court.
The complainant in his bill treats the deed to the defendant as a mortgage, and seeks to redeem the premises on payment of such sum as may be justly due thereon, which is denied by the decree of the Chancellor, except on his paying also for the permanent improvements, erected upon the property by the defendant.
It appears that originally, on the 13th of May, 1828, the 

 [*280]  defendant lent, or advanced to the complainant, five hundred dollars, and on the same day took from him a mortgage of the premises, as a collateral security for the payment of the sum advanced; and that afterwards the complainant being unable to pay the money, agreed to execute an absolute deed to the defendant, for the same property, in consideration that he would extend the time of payment, and give him a bond for the re-conveyance of it, on payment of the amount at the expiration of twelve months from the date; both of which instruments, the absolute deed, and the bond to re-convey were accordingly executed on the same day, the 7th of November, 1828.
The case is brought up by appeal from the Chancellor's [**8]  decree, and the questions raised in argument are,
1st. Whether this is a case of mortgage, or a conditional sale.
2d. If it is to be considered as a mortgage, whether the defendant should be allowed for the permanent improvements put up by him upon the premises.
As to the first question, whether it is a case of mortgage, or conditional sale; it may here be remarked, that it is treated in the decree, as a case of mortgage, which decree has not been appealed from, but acquiesced in by the defendant, and we can perceive nothing to be objected to in that view of the Chancellor. But the question being made, it will be briefly examined. It cannot be doubted, that two persons capable of contracting, may contract for the purchase and sale of real estate, defeasible by the payment of money at a future day. That is, that a sale and conveyance may be made, with a right reserved to the vendor to re-purchase the property at a price agreed upon, and at a specified time. Such a transaction would be a conditional sale, without a right of redemption in the vendor, after the expiration of the time fixed upon for the payment of the stipulated price. But it is sometimes exceedingly difficult [**9]  to draw the line between a mortgage, and a conditional sale; to determine whether the purpose of the parties was to treat of a purchase 

 [*281]  at a price agreed upon; or whether the object of the transaction was a security for the payment of a pre-existing debt, or the re-payment of money advanced, or lent, of which the case of Conway's Executors vs. Alexander, 7 Cranch 218, is a striking example; where the judges had much difficulty in arriving at the conclusion, that it was a case of conditional sale. So there may be a sale of the equity of redemption to a mortgagee, where the transaction is fair, untainted with any advantage taken by the mortgagee in the use of his incumbrance, of the necessities of the mortgagor, to influence him to dispose of his estate for less than the real value. But a transaction constituting a mortgage, cannot be converted into a sale, and lenders of money being less under the pressure of circumstances calculated to control the free exercise of the judgment than borrowers, they may often be tempted to avail themselves of that advantage, in order to attain unequitable bargains. The leaning of courts of equity therefore is against [**10]  them, and doubtful cases have generally been decided to be mortgages. The inquiry is, and must always be, whether the contract in the particular case, is a clear actual sale, or a security for a debt due, or for the re-payment of money lent.
Whenever the intention is to take a security for a subsisting debt, or for money lent, and to avoid or restrict the equity of redemption, Chancery seeking to protect the debtor against the rapacity of the creditor, and to do full and equal justice between the parties, will defeat such intention, by treating the transaction as a mortgage, and extending to the debtor the benefit of the equity of redemption, and compelling the creditor to accept the principal and interest of his debt; which is all that he is in justice entitled to, or ought to seek to attain.
A covenant to pay the debt, or to repay the money lent, is not (though proper to be introduced) an indispensable ingredient to a mortgage. If a security for the money is intended, that security is a mortgage, though not bearing upon its face the form of a mortgage, which chancery does not 

 [*282]  respect, but looking through the whole transaction as far as it can, (with the defeasance, [**11]  if there be one,) to ascertain the true character of the contract; if it be found to be different in reality from the appearance it assumes, will remove the veil with which it is covered. And where the relation of mortgagor and mortgagee is once fairly established, though the equity of redemption may be sold or disposed of to the mortgagee; yet unless the transaction appears to be fair, and unmixed with any advantage taken by the mortgagee of the necessitous circumstances of the mortgagor, equity will hold the parties to their original relation of debtor and creditor.
Let us then apply these principles of equity to the case before us. Here there was a loan of money, and a mortgage given on the 13th of May, 1828, as a collateral security for the re-payment of it. We find that on the 7th of November, of the same year, an absolute deed for the same property was given by the appellant to the defendant, accompanied by a defeasance, or bond of conveyance, on the payment by the appellant, at the expiration of twelve months from the date of the same sum of money, for which the original mortgage was given as a collateral security.
These two instruments are stated in the answer, to have been [**12]  made on the proposition of the appellant, professing his inability to redeem the mortgage within the time stipulated, to give to the defendant an absolute deed, if he would extend the time limited for re-payment of the sum, to secure which the original mortgage was given, and also execute to him a bond for the re-conveyance of the property on payment of the money, at the expiration of twelve months from the date.
An absolute deed of conveyance, and an accompanying defeasance, or bond for reconveyance of the property to the grantor, on his paying a specified sum of money, will not always, and necessarily, constitute the transaction a mortgage; but it may according to circumstances be a conditional sale--as where the deed is not given to secure the payment 

 [*283]  of a pre-existing debt, or of money lent, but the negotiation is for the purchase and sale of the property, with the mere privilege of re-purchasing at a stipulated price. This is put only as an example. But where the contract is for the securing of money, the transaction is in equity deemed a mortgage. In this case there was no negotiation for the sale and purchase of the property; on the contrary,  [**13]  there was a debt due originating in a loan of money, and the negotiation was for an extension of the period of re-payment arising from the professed inability of the complainant to pay it at the stipulated time. No new consideration passed; to obtain further time by a debtor straightened in his circumstances, was the only inducement to the deed, and the payment on which the property was to be re-conveyed, was merely a re-payment of the very sum that was lent. And it is in proof, that the defendant thought that, that sum was less than the value of the property.
It is alleged in the answer, but no where proved, that the proposition to give an absolute deed, and take a bond of reconveyance moved from the complainant. Suppose it did; it was made by a necessitous debtor, under the pressure of circumstances, and the fear that he would be unable to pay the money at the time limited in the former mortgage; and from his condition, ignorant probably of his equity of redemption, secured to him by that instrument. It is by no means clear that the defendant did not himself consider it as a mortgage. He twice extended the time of payment after the expiration of the twelve months limited [**14]  by the bond of conveyance; sometimes spoke of it as his, the appelant's property, frequently saying that he should have it again, if he would pay him the money. At one period indeed he said, that the complainant should never have it, if he could prevent it; at another time, when the money was offered by the complainant, that he would not let him have it, as he had been at the expense of insuring it; and once when speaking of the bond of re-conveyance, he said, that if it was not for that paper, he would have it safe enough. 

 [*284]  On the other hand, it would appear that the complainant never supposed it to have been a sale of the property, but only a security for the debt; frequently demanding it; at one time saying, that the defendant was much changed, and wished to cheat him out of his property, under the advice of others; and at another time charging one of the witnesses with being his adviser.
It is also proved by one of the witnesses, that the defendant told him, the complainant had offered to pay him the money, but that he had given him three months longer, in order that he might return the money again. And in speaking to another witness of the way in which he  [**15]   came to get the property, he said that the complainant was insolvent, and wanted money, and was unable to pay the debts he had contracted, and came to him to borrow money, and had this property; at the same time stating, that he had given the appellant a paper, by which the property was to fall back again to the appellant, if he paid the money within a certain time; that the time limited had run out about a year. That the money had not been paid, and that he then (at the time of the conversation) supposed that the property was his, and very cheap. The conversation with this witness is worthy of some consideration, as tending to show, not only the pressure of adverse circumstances, under which the appellant was laboring, (his urgent want of money, and supposed state of insolvency, and inability to pay his debts) and therefore a fit subject, and in a state of mind and feeling, to be prayed upon; but also to show that if the defendant did not take advantage of his necessities, he did not at that time at least, consider the property as sold to him, but that it was given as a security for the money, which was not equivalent to its value, and had become his, by reason of the [**16]  non-payment of it. And if the transaction was at the time it was entered into, a security for money lent, it continues to be so, notwithstanding the money was not paid at the expiration of the twelve months after the date of the bond, and has not yet been paid. This transaction if considered 

 [*285]  as of a doubtful character, would be treated in Chancery as a case of a mortgage. But seeing that there is no evidence of a negotiation for the sale and purchase of the property; that the debt originated in a loan, or advance of money; that the deed of the 7th of November, 1828, was given in consideration of an extension of time for the re-payment of it, with no additional advance of money by the defendant; that the complainant at all times considered himself as entitled to redeem; always keeping up a continued claim, and that he twice offered to repay the money, which was considered by the defendant himself, as less than the value of the property; all this, in connection with the other facts and circumstances of the case, strongly shows the character of the transaction to have been that of a security for the money, and gives to it the properties of a mortgage. This brings us to the [**17]  examination of the other question properly before us; whether the defendant should be allowed for the permanent improvements put by him upon the premises?
It is a general principle in Chancery, though not without exceptions, that a mortgagee in possession is not to be allowed for new improvements erected upon the premises; and this works no hardship upon the mortgagee, who before foreclosure is not the substantial owner, nor under any obligation to make any repairs but such as may be necessary. But as a general rule, it is proper and necessary for the protection of the rights and interests of mortgagors, who would otherwise be very much at the mercy of their mortgagees. If it were otherwise, a mortgagee might from whim or caprice make what he considered to be improvements, but such as the mortgagor would not choose to have made. A mortgagor might be in a situation to redeem, by paying the principal and interest of the debt; but wholly unable to redeem, if obliged to pay also for such improvements as the mortgagee might be able and think proper to erect. Such a clog upon the equity of redemption would be subject to great abuses, and increase the difficulties in the way of the right [**18]  to redeem, and might be resorted to 

 [*286]  by a mortgagee, knowing, and disposed to take advantage of, the necessities of the mortgagor, as a means of defeating the equity of redemption.
Here, the defendant claims to be allowed for houses erected by him upon the mortgaged premises; and we are to inquire whether, under all the circumstances, this case falls within any of the exceptions to the general rule.
The property mortgaged, taking the acknowledgment, (or it may be said) the boast of the defendant himself, exceeded in value the amount of the sum lent; and there is no proof that it had ever begun to fall into a state of decay and dilapidation, which threatened so to diminish its value, as that it would not be an adequate security for his money. There is no evidence that the houses standing upon the premises were in a ruinous state, and that he pulled them down and built the new ones as a substitute, and for the purposes which they served: on the contrary, the new houses were erected for new and other purposes. There was no long continued possession, and acts of ownership by the defendant, and acquiescence by the complainant, with no claim of the right to redeem, begetting [**19]  the belief on the part of the defendant that the mortgaged premises belonged to him.
But the deed and defeasance were executed on the 7th of November, 1828, and the houses were begun not quite three years after, and not finished when the bill was filed on the 7th of March, 1832; during the whole of which time there was a continued claim by the appellant of the right to redeem; sometimes charging the defendant with a design to cheat him, and twice offering him the money, and demanding the property, the last time in August, or September, 1831, when the defendant refused to let him have the property, on the alleged ground that he had been at some expense in insuring it, but gave him no notice of his intention to put up the new improvements, which were commenced in October, 1831, not more than one or two months after, and there is no proof that the complainant ever had notice of his intention to build.

 [*287]  Not only was there this continued assertion of right by the appellant, accompanied by the observation by the defendant to one of the witnesses, that if it was not for that paper, (speaking of the bond for re-conveyance,) he would have it safe enough, clearly showing his own [**20]  doubts upon the subject of his own right, which surely, taken together, was quite sufficient to have put him upon the inquiry, which any prudent man, or one disposed to do what was right, would have made; but there is besides proof of his frequent declarations, that the appellant should have his property again, if he would pay him the money.
Under such circumstances it is difficult to conceive, that he confidently believed the property belonged absolutely to him, notwithstanding he once said, that as the money was not paid at the expiration of the time mentioned in the defeasance, he supposed it was his; and his declaration, that the appellant should never have it if he could prevent it, being a qualified declaration, and not a positive assertion of right, would seem to be explained by the fact, that in October, 1831, not more than two months after he had refused to receive the money and give up the property, on the pretence that he had been at the expense of insuring it, concealing his intention to put up the new improvements, he commenced building in the absence, and without the knowledge of the appellant, with a view, as it would appear, to make good his threat,  [**21]  that he should never have it, if he could prevent it, under the supposition, (as he had before said he was insolvent,) that he would not be able to redeem it with that additional charge upon it.
The circumstance that the appellant was in Baltimore, and saw, and spoke of the improvements after they were begun, is not sufficient evidence of his approbation, or acquiescence to charge him with the cost of them. He had been refused the property on his offering to pay the money, not more than a month or two before, and had gone away without being consulted by the defendant, who took advantage of his absence to commence the buildings. And he 

 [*288]  may well have thought that it was useless to say any thing about it, as it was not very probable that he who had refused to let him have it merely because he had effected insurance upon it, would do so, after he had begun to improve it, or pay any attention to any thing he could say. But he did all that was left for him to do; he filed his bill to redeem, within five months after the buildings were commenced, and before they were finished.
We do not think therefore, that this case falls within the principle of any case which is now [**22]  recollected, that has been excepted out of the general rule.
The defendant made the improvements in his own wrong, and at his own hazard, and cannot be allowed for them.

THE DECREE, AS TO THE ALLOWANCE MADE FOR IMPROVEMENTS, REVERSED, WITH COSTS IN THIS COURT.  

32 of 41 DOCUMENTS 

ANDREW ELLICOTT vs. THE UNITED STATES INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 166; 1836 Md. LEXIS 17 

December, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was an action of debt, commenced on the 1st May, 1834, by the appellant against the appellee.

The plaintiff below declared, that whereas the said defendants on the 24th day of December, 1833, at, &c. by their certain writing obligatory, sealed with their seal, and to the court now here shown, the date whereof is the day and year aforesaid, in consideration of securities deposited, and of the premium paid thereon, guaranteed to the bearer of such writing obligatory, the payment of the sum of $ 5,000 on the 30th day of April, 1834, on presenting such writing obligatory for payment, at the office of defendants; and the said plaintiff avers, that he was the bearer of the said policy, and that the same was presented for payment on the day and year last aforesaid, but was not paid; whereby an action hath accrued to said plaintiff to demand and have of the said defendants the sum of $ 5,000 above demanded.

2nd count--and whereas also afterwards, to wit: on, &c. at, &c. the said defendants were indebted to the said plaintiff in the sum of $ 5,000, for so much money had and received by the said defendants to the plaintiff's use, and to [**2]  be paid to the said plaintiff when the said defendants should be thereto afterwards requested; whereby and by reason of the said last mentioned sum of money being, &c. remaining wholly unpaid, an action hath accrued to the said Andrew to demand and have of the said defendants the sum of $ 5,000, above demanded, yet the said defendant, although often requested, hath not paid the said sum of money or any part thereof, but to pay the same hath hitherto altogether refused, and still refuse to the damage of said plaintiff, &c.

To the first count of this declaration the company demurred specially, and assigned for causes of demurrer:

1st. That it is not averred thereon, that the defendant made the writing obligatory with the plaintiff, nor is it averred with whom the said writing obligatory was made.

2d. That it is not averred who deposited the securities, and paid the premium mentioned in said writing obligatory.

3d. That it is not averred that the plaintiff was the bearer of the said writing obligatory, at the time it was made, nor is it averred at what time and how, the plaintiff became the bearer thereof.

4th. That it is not averred that said plaintiff was the [**3]  bearer of said writing obligatory on the day it fell due, nor that the plaintiff presented it for payment.

5th. That it is not averred that said writing obligatory was presented for payment at the office of said defendant.

To the second count, that the defendant pleaded nil debet. Issues were joined on the demurrer and plea.

The county court (Archer, C. J. Magruder and Purviance, Judges,) rendered judgment on the demurrer for the defendant, and the plaintiff took this appeal.  

DISPOSITION:
JUDGMENT REVERSED WITH PROCEDENDO.  

HEADNOTES:

In an action of debt by the appellant against the appellee, on a policy of insurance issued by the latter, guaranteeing to the bearer on a day named, the sum of $ 5,000 on presenting the same at the office of the company; it was held on special demurrer to the declaration, in which the plaintiff averred that he was the bearer of the policy, and that the same was presented on the day named, but was not paid, that the action might be maintained.

That such an instrument was as much the representative of money as exchequer bills, bank notes, bills of exchange, or promissory notes, payable to bearer, or endorsed in blank, and as such passed by delivery. That possession was prima facie evidence of title, and when sued on by the holder, it need not be averred, that the defendant made the policy with the plaintiff; or with whom it was made, or by whom the securities were deposited, and premium paid; or that the plaintiff was the bearer at the time it was made, or when he became such bearer; or that he was the bearer thereof on the day it fell due, and presented it for payment at the office of the defendant.  

COUNSEL:
R. JOHNSON, for the appellant.

The only question in the case is, whether the holder of a policy of insurance under seal issued by the appellees payable to the bearer, may not sue on it, though he be not the party to whom it was in the first instance issued. It is contended on the part of the appellant, that the instrument in question, though under seal, may be sued on by any bearer in his own name. Act of 1831, ch. 191. Wookey vs. Pole, et al, 6 Serg. and Low, 324. Ib. 218.

No counsel appeared for appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*168]  DORSEY, Judge, delivered [**4]  the opinion of the court.
We cannot concur with the county court in sustaining the demurrer to the first count in the declaration. The instrument of writing or policy declared on, was as much the representative of money as exchequer bills, bank notes, bills of exchange, or promissory notes, payable to bearer, or endorsed in blank and as such passed by delivery. The possession of it is prima facie evidence of title, and when sued on by the holder it need not be averred, that the defendant made the policy with the plaintiff; or with whom it was made; or by whom the securities were deposited, and premium paid; or that the plaintiff was the bearer at the time it was made; or when he became such bearer; or that he was the bearer thereof on the day it fell due and presented it for payment at the office of the defendant. 6 Eng. Com. Law 323. Wookey vs. Pole and others. 11 Eng. Com. Law 16. Georgier vs. Mieville and others. 16 Eng. Com. 

 [*169]  Law 217. Same vs. Same, and 1 G. & J. 175. Bowie, use of Ladd, et al vs. Duvall.
The sixth section of the act of 1831, ch. 191, (by) which The United States  [**5]   Insurance Company was incorporated, enacts "that the president and directors shall have full power and authority, to make insurances against all loss and damage from fire, flood, or other casualty, and against all loss or damage, from any cause, hazard, or liability whatsoever on, and relating to factories, mills, bridges, and other works and buildings, and on goods, wares, merchandize, choses in action, and personal property of every description; and generally, to make, execute and perfect all such contracts, agreements and other instruments, as may be necessary to carry into effect the provisions of this law." Under the broad and comprehensive powers thus given, we think the appellee was competent to execute such a policy as is the basis of this action; and that in many cases, strong and satisfactory reasons exist, why it should assume this, and no other form. As for example, a merchant holds a trader's promissory note, of whose ability to meet his engagements he entertains some doubt. To secure himself against such casualty or hazard, he applies to The United States Insurance Company for their guaranty, and pays the required premium. The form of the instrument, the mode [**6]  in which the guaranty is to be effected under the act of Assembly, is entirely dependent on the will of the parties; the law adopts it as they shall design to have made it. They might it is true, have put their contracts as nearly as the subject matter would permit in the form of a marine policy, or insurance against fire, but they were under no legal obligation to do so, and certainly, no motive of interest or expediency could have prompted them to such a course of proceeding. It is the interest and policy of merchants to keep their capital or its representative in such a condition as to be at all times convertible into money with as great facility as practicable, and to avoid every thing that might tend to shake or impair the commercial credit of each other. Had a formal policy with the note attached to it been executed, 

 [*170]  specifying the premium paid, &c. and the insured had afterwards thrown it into the market for conversion into money, its natural tendency would have been to impair the commercial credit of the maker of the note, and consequently lessen the probability of its being paid by him at maturity. The insurer therefore under such an arrangement would naturally [**7]  demand a higher premium for insurance.
The insured it must be presumed, would not have applied for a guaranty from any source, but one, in which both he and the public reposed entire confidence. He could therefore feel no hesitation in surrendering the note to the company, by whom the risk was assumed, and in doing so he would put it in the power of the insurer upon any emergency rendering it expedient, to guard against loss by passing off the note, or making any arrangements to secure its payment which circumstances might make advisable. The necessary result of such a negotiation, would be a reduction of the premium demanded by the underwriter. In such a transaction then, it is manifestly the interest of both insurers and insured, to give to their contract the shape it has assumed in the case before us.
Dissenting from the opinion of the county court we reverse their judgment.
JUDGMENT REVERSED WITH PROCEDENDO.  

33 of 41 DOCUMENTS 

BRUCE & FISHER vs. COOK, GARNISHEE OF SCARBOROUGH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 345; 1834 Md. LEXIS 31 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

On the 21st of April, 1832, the appellants, Henry Bruce, and William Fisher, sued out an attachment, on the warrant of a justice of the peace, under the provisions of the act of 1795, ch. 56, to recover the amount of two notes made by Scarborough, payable to them, each for $ 225 60, dated on the 11th of October, 1831, at four and six months.

The attachment issued on the affidavit of Bruce, one of the appellants, in which he is stated to be a citizen of the State of Maryland, and the money due to him and Fisher, as merchants and partners in trade; but neither the citizenship, or the residence of Fisher appears in the affidavit, or any other part of the proceedings.

After the appearance of the garnishee, and issues joined upon the pleas of non assumpsit, and nulla bona, he moved the court to quash the attachment, because it did not appear in said attachment, that the plaintiff, William Fisher, was at the issuing of the same, an inhabitant, or resident of any part of the United States, or a citizen thereof, or of any one of the United States. The court sustained the motion, and quashed the attachment, and the plaintiffs thereupon brought [**2]  the record by appeal to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The objection, that the affidavit, upon which an attachment issued to compel an appearance, did not give the court jurisdiction, may be taken advantage of at any time, and may be either upon a motion to quash before or after plea pleaded, by demurrer, by a prayer for an instruction from the court after swearing the jury--after verdict on a motion in arrest--after judgment (without raising the objection below,) upon appeal on writ of error, assigning the want of jurisdiction as error in the appellate court.

Where there is a defect of jurisdiction patent upon the record, a motion to quash an attachment may be granted, though the reason assigned for the motion be erroneous.  

COUNSEL:
McMahon and Lloyd, for the appellants, (in addition to the points made, and authorities relied upon in the preceding case) insisted, that the motion to quash could not be entertained, whilst there was an issue pending for the jury. The objection if valid might have been taken under the issue; and there cannot be at the same time an issue and demurrer to the same proceeding.

But it certainly is not necessary, that the fact of citizenship should appear in the attachment, and the absence of the allegation there, being the specific ground of the motion to quash, the appellee under the act of 1825, is precluded from relying on any other ground.

Johnson, for the appellee.

The point on the other side is, that the motion to quash was based upon a defect in the attachment, and not the affidavit, and therefore, we cannot look to the latter at all; but if the court did right to quash the proceeding, the reason which influenced them cannot be very material. Why should the court permit the cause to proceed to trial, when the want of jurisdiction was apparent, and judgment would be arrested even after verdict.  

JUDGES:
The cause [**3]  was argued before BUCHANAN, Ch. J., and STEPHEN, DORSEY, and CHAMBERS, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*347]  BUCHANAN, Ch. J., delivered the opinion of the court.
This case differs from the case of Wever and Wever, vs. Baltzell and Davidson, garnishees of McCaffrey, just decided, only in this; that here, after the appearance and pleading by the garnishees, and issues joined, the attachment was quashed by the court below, on motion of the garnishees; from which judgment of the court the appeal was taken. And we can perceive nothing in the judgment to complain of, either as respects the reason assigned in the motion to quash, or the stage of the proceeding at which it was made. The reason assigned is, that it does not appear in the attachment, that William Fisher, one of the plaintiffs, was an inhabitant, or resident, of any part of the United States, or a citizen thereof, or of any one of the United States.
We have seen in the cause just decided, that to give jurisdiction to the court, it should have so appeared in the affidavit that was the foundation of the warrant, and writ of attachment, which all taken together, form the cause of attachment. The judgment [**4]  is general, and does not purport to be founded upon the absence of a proper description of 

 [*348]  William Fisher, in the writ of attachment, and must be taken to have been founded on the want of jurisdiction for the defect apparent in the proceedings. The objection substantially, was to the jurisdiction, for the want of a sufficient description of one of the plaintiffs, in the case of attachment made by the proceedings, and not merely in the writ of attachment. And to say, that this court must be confined by the terms of the attachment used in the reason assigned in the motion to quash, to the writ of attachment, and cannot look beyond it, when it appears by the record, that a sufficient description according to the provisions of the act of 1825, ch. 114, is not given in the affidavit, (where it should properly appear) and therefore, that the court below had not jurisdiction of the case, would be to sustain an objection rather too attenuated. The other objection, that the motion to quash was made after issues joined, rests we think on no better foundation.
The garnishees need not have pleaded as they did, but might have availed themselves of the want of [**5]  jurisdiction by demurrer. It would have been a fatal objection after verdict, on a motion in arrest of judgment. They might have taken advantage of it, if a jury had been sworn, by a prayer for the instruction of the court; or after verdict and judgment against them, without raising the objection below, it might on appeal or writ of error, have been assigned as error here, and this court would have taken notice of and sustained it. In Yerby vs. Lackland, 6 H. & J. 446, the garnishees pleaded nulla bona, and under instructions given by the court, to which exceptions were taken, they obtained a verdict and judgment. No objection was raised to the jurisdiction in the court below; and on an appeal to this court, by the plaintiff, it appearing from the record, that he had failed to show himself to be of that description of persons who had a right, under the provisions of the act of 1795, ch. 56, to sue out an attachment, the judgment for that reason was affirmed, without any examination of the question raised in the bills of exceptions. Why 

 [*349]  then in this case should the court, merely because issues had been joined between the parties, have overruled the [**6]  motion to quash the attachment, and suffered the mere forms of a trial to have been gone through, seeing that it had no jurisdiction in the cause? It was the right of the court on perceiving its want of jurisdiction at any stage of the proceedings, before the swearing of a jury, to entertain a motion to quash the attachment, and arrest the further progress of the cause. To have rejected the motion, and proceeded with the trial of the cause on the issues joined, would have been to exercise a jurisdiction, that it knew it was not invested with, and could not be sustained in this court, and for want of which, that court could not have given a valid judgment on a verdict for the plaintiff.
JUDGMENT AFFIRMED.  

34 of 41 DOCUMENTS 

JOHN E. RIGDEN vs. CHARLES WOLCOTT. Same vs. WILLIAM WOLCOTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 413; 1834 Md. LEXIS 36 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

Actions on the case for slanderous words, spoken by the appellant of the appellees, instituted on the 8th of June, 1830.

Issues were joined upon the pleas of not guilty.

The circumstances of these cases are sufficiently stated by the judge who delivered the opinion of this court.

The appeals were taken by the defendant, the verdict and judgment of the county court (HANSON, A. J. presiding) being in favour of the plaintiffs in that court.  

DISPOSITION:
JUDGMENTS IN BOTH CASES REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

It is a general rule, that under the plea of non cul, in an action for defamatory words, the defendant may give evidence of such facts and circumstances, as show a ground of suspicion of the truth of the matters charged, not amounting to justification, or proof of guilt of the plaintiff, in mitigation of damages, but not in bar of the action.

Words, when used in a manner and sense to impute guilt, imply in contemplation of law, malice sufficient to sustain an action, and entitle the plaintiff to a verdict; but the amount of damages depends in part on the degree of malice, of the malignity and wantonness of intention to injure, with which the words used were spoken.

It is not necessary in an action of slander for the defendant to give notice of his intention to offer evidence in mitigation of damages under the general issue. 

COUNSEL:
McMahon for the appellant.

The question is, whether in an action of slander, evidence in mitigation of damages, can be received upon the plea of not guilty.

Upon this issue, the question is, not whether the words are true or false, but whether they were spoken; and if spoken, with what degree of malice; malice constituting the gist of the action; which is, in its nature, both remedial and penal; remedial for the redress of the injury done to the plaintiff, and penal, for the punishment of the defendant, for his malignity, and therefore the quo animo. is a most material inquiry. 4 Wen. 139. 7 Cowen, 624, 627.

It is [**2]  competent to the plaintiff to enhance the malice, and aggravate the damages, by proof that the words were frequently spoken, and upon occasions, and under circumstances calculated to do the plaintiff the greatest possible injury, or by proof of the speaking of other slanderous words. 1 Campb. 49. This is tolerated to inflame the malice, and consequently to swell the damages, and justice therefore requires, that the defendant should be allowed to mitigate both, by the proof of circumstances, showing that instead of being actuated by malice, he was influenced in speaking the words imputed to him, by a conviction of their truth. Malice is a presumption of fact, resulting from the falsehood of the words, and may be repelled by proof of circumstances, indicating its non-existence. It is not a legal presumption, incapable of contradiction. In civil cases the jury are not only to find the malice, but the quantum of the malice, which would not be the case if it was a legal rule, for then the same amount of damages must be recovered in every case. It is not possible that the same amount of damages can be awarded against the party who wantonly, and causelessly assails the character of another;  [**3]  and him who utters the same words, under a full conviction of truth, and under circumstances of strong suspicion.

To show that suspicious circumstances may be proved, he cited,--3 Campb. 294. Rand. Peake, 349, appendix 94. 3 Serg. and Lowb. 111, 113, 115. 12 Ib. 268. 22 Ib. 357. 2 Campb. 254. 14 Serg. and Lowb. 248. 1 Binny, 90, note (a.) 7 Cowen, 613. 4 Wen. 114. 7 Ib. 632. 3 Massa. Rep. 553. 1 Pick. 7. 2 Pick. 310. 3 Con. Rep. 463, 466. 4 Con. Rep. 408, 416. 1 Nott and McCord, 268, 271, 274. 3 Ohio Rep. 270. 4 Gill and Johns. 342.

The second case differs from the first, only in the fact, that notice of the defendant's intention to offer the mitigating proof was not previously given to the plaintiff, and that the defendant's proof was rejected in advance, and not first offered; and then upon the prayer of the plaintiff's counsel, decided by the court to be inadmissible for the purpose for which it was offered.

He insisted, that notice to the plaintiff of the proposed proof, was not necessary, because the object of it was not to inculpate him, but to exculpate the defendant from the imputation of malice. But if it was otherwise, and the proof referred to is calculated [**4]  to throw suspicion upon the plaintiff, it would be admissible, as a man of suspicious character is not entitled to the same damages, as one whose character is free from stain.

The question to be solved is the malice of the defendant, and proof to that point, on either side, should not be excluded. 3 Gill and Johns. 386. 19 Serg. and Lowb. 64.

Mitigating proof cannot be offered when the defendant pleads a justification; but if he retracts the justification, by an admission upon the record, of the plaintiff's innocence of the charge conveyed by the words, then such proof is admissible. 1 Pick. 19.

Hinkley for the appellee.

The action is for words imputing a felony, and their falsehood being admitted, the question is, whether proof of suspicious circumstances is admissible in mitigation of damages, as showing the absence of malice in the defendant.

The words are actionable in themselves, and malice is inferrible from their falsehood. Stark. on Sland. 127.

The action is given to make reparation to the plaintiff, for the effect, which the words spoken are calculated to have upon his reputation, and it would be as reasonable to admit evidence in reference to [**5]  the effect of the words, as to the malice with which they were uttered. The law implies the malice, where the words are actionable per se, and are proved, or admitted to be false.

If in such a case the malice can be mitigated, the action is destroyed. Evidence in mitigation of implied malice is inadmissible. 1 Pick. Rep. 2, 17. The plaintiff did not offer evidence to inflame the malice, by proof of extrinsic circumstances, or of words not charged in the declaration, but if he had done so, the proof offered on the other side would be inadmissible. 1 Campb. 49, note. 2 Phillips' Ev. 107.

It is the wrong done to the plaintiff which is to be repaired, in damages, which are not regulated by the defendant's malice; and whether he believes or disbelieves the words he utters, is immaterial, as that cannot affect the injury sustained by the plaintiff. Stark. on Slander, 404, 411.

If the malice with which the words are spoken is the material circumstance to guide the jury in the assessing of the damages, then slander in an unknown language would be actionable, as there may be as much malice in the uttering of such language, as in a language known to the by-standers, by which alone [**6]  the party slandered can be injured. Stark. on Slander, 35, 265, 266. 2 Stark. Ev. 844.

Under the general issue, facts and circumstances, not amounting to a justification, cannot be given in evidence in mitigation of damages. 3 Serg. and Lowb. 177. 16 Ib. 412.  

JUDGES:
The causes were argued before BUCHANAN, Ch. J. and STEPHEN and CHAMBERS, J's.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*416]  BUCHANAN, Ch. J., delivered the opinion of the court.
This was an action of slander, in which issue was joined on the plea of not guilty.
At the trial below, the speaking of the words charged in the declaration being proved, the defendant offered evidence in mitigation of damages, of probable cause of suspicion at the time of speaking the words complained of, not amounting to proof of their truth; accompanied by a disclaimer of any intention to prove the commission by the 

 [*417]  plaintiff of the crime imputed to him; and by notice to the plaintiff given some time before the trial of the proof intended to be offered, and the evidence itself that was offered, going to exculpate the plaintiff from the charge, but showing a ground of suspicion of his guilt, at the time the words were uttered--which was rejected [**7]  by the court as inadmissible, for the purpose for which it was offered.
The authorities upon this subject are very numerous, with some apparent inconsistency; but if examined, they will be found, it is apprehended, to differ not so much as to the principle involved, as in relation to the peculiar nature of the particular case, and the character of the evidence offered--not as to the principle itself, but the application of it.
The general rule, as we conceive, being that under the plea of non cul.; in an action for defamatory words, the defendant may give evidence of such facts and circumstances as show a ground of suspicion, not amounting to justification, or proof of guilt of the plaintiff, in mitigation of damages, but not in bar of the action. The words themselves, when used in a manner and sense to impute guilt, implying in contemplation of law, malice sufficient to sustain the suit, and entitle the plaintiff to a verdict, but the amount of damages depending on the degree of malice, of the malignity and wantonness of intention to injure, with which they were spoken.
Hence the discretion vested in the jury, to assess nominal or aggravated damages, according to the circumstances [**8]  of the particular case, as a compensation to the plaintiff for a wound inflicted upon his feelings and character; and a punishment of the defendant for the wanton indulgence of his malignant propensities.
And hence, too, the practice and right of the plaintiff to give evidence of the express malice, and settled purpose of the defendant in the use of the words charged, to injure him in his character and standing in society.

 [*418]  If it was otherwise, and every case for words actionable per se, was made to depend upon the malice which the law implies, and of which the law knows no degrees, juries would have no criterion by which to measure the amount of their verdicts, and no grounds furnished them for giving exemplary damages, either as a compensation to the plaintiff, or a punishment of the defendant. And surely, he who impeaches the integrity of another, under an honest conviction of the truth of what he says, arising from probable grounds of suspicion, known to him at the time of speaking the words, is a less fit subject of aggravated damages, than one who goes through the country uttering malicious slanders, with the settled malignant purpose of destroying his neighbor's [**9]  character, knowing, at the time, that what he says is false.
The malice which the law implies, is of itself sufficient to support the action; but the damages to be commensurate with the offence, should be regulated by the quo animo, with which the words were spoken, for which the suit is brought. And for the very reason for which the plaintiff is permitted to give evidence of a degree of malice, beyond that which the law implies, in order to aggravate the damages, should the defendant be allowed to give evidence in mitigation, by showing that he uttered the words imputed to him upon probable grounds of suspicion of the plaintiff's guilt, calculated at the time, to impress the belief of their truth; and that they were not spoken, for the fiend-like purpose of falsely and wantonly destroying his character.
Though he cannot, under the plea of not guilty, be suffered to prove the truth of the words, or give evidence amounting to a justification; as that would be to subject the plaintiff to surprise, who looking to the defence placed by the plea upon the record, and not knowing the course intended to be pursued by the defendant at the trial, can only be expected to come prepared to [**10]  prove the speaking of the words, and not to disprove their truth. If, therefore, 

 [*419]  the defendant has matter of justification, on which he means to rely, he should by his plea give notice to the plaintiff of that defence, in order that he may be prepared to meet it. But to deny to the defendant the right to show, in mitigation of damages only, on the plea of not guilty, the probable grounds of suspicion, on which he spoke the words complained of, and thus to explain his conduct, when he may subsequently to the time of speaking them have seen reason to change his opinion, would be to drive him, whether he will or not, and contrary to his own conviction at the time of pleading, to put in the plea of justification--which, if he fails to sustain, must often have the effect to increase the damages by furnishing proof on record of continued malice, though none, in fact, may continue to exist. And to force him to the alternative of hazarding such a plea, and to the proof in support of it, when he may not wish to offer it, but only desirous to vindicate himself, by explaining the ground on which he acted; or of submitting to the imputation of malignity, and wanton and intentional [**11]  falsehood and defamation, would be to inflict upon him a hardship which the law is studious to avoid; to cast an odium on the system of pleading, intended for the furtherance of justice, and to place a man, who speaks only what at the time he believes to be truth, upon a level with the malicious slanderer. We do not, therefore, concur in opinion with the county court, and the judgment must be reversed.
The case of the same appellant vs. William Wolcott differs from that just decided only in this; that in the former case, notice appears to have been given some time before the trial to the plaintiff, of the intention of the defendant to offer in mitigation of damages the evidence proposed; which we think of no consequence, and was not necessary to have been given. And also that in this case, the defendant's counsel was stopped in limine by the court, and not permitted to give any evidence of probable cause of suspicion at the time of speaking the words charged, in 

 [*420]  mitigation of damages, in which we think the court erred, and should have suffered evidence not amounting to a justification to go to the jury, on the general issue in mitigation of damages; but not in [**12]  bar of the action.
THE JUDGMENTS IN BOTH CASES ARE REVERSED, AND PROCEDENDO AWARDED.  

35 of 41 DOCUMENTS 

CAMPBELL & VOSS vs. POULTNEY, ELLICOTT & CO. et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 94; 1834 Md. LEXIS 5 

June, 1834, Decided 

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

On the 3d of July, 1834, the appellants filed their bill on the equity side of Baltimore county court, for the purpose of restraining by injunction the voting of certain shares of stock in the Union Bank of Maryland, at an election of directors of said bank then about to take place.

The bill alleged that the appellants James Mason, Campbell and Robert S. Voss, are stockholders in the said bank, which was chartered in the year 1804. That by the 10th section of the act of incorporation, certain rules and limitations are prescribed, regulating the right to vote for directors in the proportions following, that is to say; for one share and not more than two, the holder shall be entitled to two votes; for every two shares above two and not exceeding ten, one vote; and so on, the ratio increasing progressively according to the number of shares, and fixing sixty as the greatest number of votes to which a single proprietor of stock shall be entitled; and declaring that no share or shares shall confer the right of suffrage, which shall not have been holden four calendar months previous to the day of election. That the legislature in fixing the standard [**2]  of voting, designed preventing the power of electing directors being concentrated in a few hands, and that the rights of the small stockholders should be protected. That the appellees Samuel Poultney and William M. Ellicott trading under the firm of Poultney, Ellicott & Co. having during the years 1833-34, become the proprietors of between two and three thousand shares of stock in the said bank, with the fraudulent intent of evading the provisions of the charter in that respect, and for the purpose of increasing the number of votes which otherwise they would be entitled to on their aforesaid stock, at the ensuing election of directors to take place on the first Monday of the present month of July, caused about two thousand shares thereof, then as the complainants charge and believe, pledged to the said bank for advances made to the said Poultney, Ellicott & Co. to be transferred to divers unknown persons, without consideration and colorably; taking at the same time from the transferees powers of attorney, securing to them, the said Poultney, Ellicott & Co. all control and authority over said stock, and the right to vote the same at their discretion. That these transfers were made some [**3]  time in the latter part of February, or the beginning of the last March. That this arrangement, by which these proprietors seek to exercise a greater influence in the ensuing election of directors, than by the charter they would otherwise be entitled to, is not only a fraud on that instrument, but upon the complainants and all the other stockholders, and may result in the election of a board of directors, not the choice of the legal voters. The bill then prays, that an injunction may issue prohibiting the said Samuel Poultney and William M. Ellicott, the president, directors, and officers of the bank, their agents and servants, from voting the said stock at the ensuing election; and the judges of the election from receiving any vote, which may be tendered by virtue of any power of attorney, which may be executed by any persons to whom the said stock may have been transferred by the said Poultney and Ellicott, and for general relief; and that subpoenas may issue against the said Samuel Poultney and William M. Ellicott, Thomas Ellicott president of the Union Bank of Maryland, Robert Mickle cashier thereof, five of the directors by name, three of the clerks, and the judges of election [**4]  when appointed.

An injunction according to the prayer of the bill was granted by the county court, with leave to the defendants to move for its dissolution, on the succeeding Saturday the 5th inst.

The proceedings having been removed to the high court of Chancery upon the suggestion of the defendants, and a general demurrer filed to the bill; the motion to dissolve was heard by his honor, Bland, Chancellor, on the 5th, agreeably to the above leave, and the injunction was by him dissolved on that day.

From the order dissolving the injunction an appeal was allowed, under the act of 1832, ch. 97, and the record accordingly brought before the court of Appeals at this term.  

HEADNOTES:

A bill alleged that C and others were stockholders in the Union Bank of Maryland, and that by its charter regulating the right to vote for directors, a certain standard of voting was prescribed, fixing sixty votes as the maximum to which any single proprietor of stock could be entitled, and that no share should confer the right of suffrage which should not have been holden four calendar months previous to the day of election; that P and E large proprietors of stock, with the fraudulent intent of evading the provisions of the charter in that respect, and for the purpose of increasing their number of votes, caused a number of shares to be transferred to divers unknown persons without consideration, and colorably, taking from the transferees powers of attorney, securing to them P and E all control over said stock, and the right to vote the same at their discretion; that this was a fraud upon the charter and complainants as stockholders, of which P and E designed to avail themselves at the coming election. The bill prayed an injunction against P and E, the President, Directors, and officers of the bank, and the judges of its election, and for subpoena against P and E, T E president of the bank, R M cashier thereof, five of the directors by name, three of the clerks of the bank, and the judges of the election when appointed. Upon this bill it was held.

1. That the matter of the bill furnished sufficient ground for the interposition of a court of equity.

2. That the facts stated are a violation of the principles and spirit of the charter, and if carried into effect would be a practical fraud upon the complainants, and in derogation of their chartered rights, for which an injunction was the appropriate remedy.

3. That the relief granted by the injunction was a proper remedy.

4. That the objection for the want of proper parties, and to the injunction, having issued against persons unknown, is not sustainable. 

COUNSEL:
A. C. Magruder, for the appellants, contended.

1. That the allegations in the bill amounted to a violation of the charter of the bank, and show that the shares in question cannot be voted, at the election referred to. A bank, though a corporation, is in the nature of a partnership, and the corporators inter se, have all the rights of partners. Every stipulation in the contract of partnership, not contrary to some principle or the policy of the law, should be fairly executed. This controversy is [**5]  among the individual stockholders, and involves no complaint against the bank as a corporation. It does not seek a forfeiture of the charter--if it did, a court of law would be the proper tribunal. There is no case in which a court of Chancery may not interfere by injunction to prevent frauds, or breaches of contract and good faith. 1 Mad. Ch. Pr. 125. Chitty's Gen. Pr. 704. In such a case as the present, the remedy is not by mandamus. Chitty's Gen. Pr. 789. But if it was, it does not follow that Chancery could not interpose by injunction. Jeremy's Eq. 306. There can be no doubt that the transfer of the shares in question, for the purpose charged, could have been restrained by injunction, and if the transfer could have been prevented, why may not the object of the transfer be frustrated in the same way. 6 Johns. Ch. Rep. 160. 1 Ib. 18. And the same cases show that if the election had taken place, and had been controlled by these votes, the court could still have interfered by injunction, though the operations of the bank would have been arrested by it.

The judges of the election can only look to the books in determining the right to vote. They have no power to inquire into the [**6]  facts connected with the transfers; but if they had the power, they have not the means of arriving at the truth. In this case an injunction is the appropriate remedy. 9 Johns. Rep. 507. 1 Johns. Ch. Rep. 611. 4 Ib. 150. 6 Ib. 439. 2 Dallas. 405.

Constable, Otho Scott, Nelson, and Winchester, for the appellees.

1. The bill is defective in not making proper parties, either complainants or defendants, and in that respect presents a case unfit for an injunction.

There is no allegation of a breach of trust, or violation of the charter by the corporation. The controversy is limited to the corporators themselves; involving merely a question of privilege, and affecting no right of property. The bank as a corporation is not a party, nor are the transferees of the stock, whose privileges it is the object of the bill to affect. The president, and cashier, and certain of the directors, eo nomine are made parties; but not the bank by its corporate name, by which alone, can it sue and be sued. 2 Paige, 449.

No decree settling the rights of the parties can be passed, without making the bank a party, whose very existence is suspended by the proceeding. It should therefore be before [**7]  the court to defend itself. The fraud complained of cannot be consummated except through its agency.

If the charter constitutes a contract, it is a contract between the corporation and the State, and each corporator with the corporation; and yet this bill, complaining of a violation of the contract, does not bring the corporation, one of the contracting parties, before the court. The transferees also should have been before the court, in vindication of their rights, and to repel the charge of fraud. If the names of the transferrees were not known, the information should have been asked of the bank, and not of Poultney, Ellicott & Co. An injunction will never issue against any but parties to the bill, having substantial interests, as have these transferrees and the bank. 4 Johns. Ch. Rep. 25. Nor have the proper parties complainants been made.

The bill charges a violation of the charter of the bank, and yet the bank is not a complainant. The charter is not the charter of these complainants, but of the bank. In legal contemplation the complainants have no interest in the charter. If the rights of any of the corporators are affected by the acts complained of, the rights of all [**8]  are; and all therefore, as represented by the corporation, should make the complaint. If the present bill is sustained, then each stockholder might file his bill for the same thing.

2. Chancery has no jurisdiction of the case presented by the bill. The funds of the institution are not involved, but merely a privilege in reference to an election. No case can be found, in which a court of Chancery has interfered with a corporate election. When the power of the corporation in that respect has been abused, the injury may be redressed; but never interfered with in anticipation. Such an interference would be an evasion of a chartered privilege. 2 Kent's Com. 244. 286. An abuse of the privilege may be corrected by a mandamus, or quo warranto from a court of law, but Chancery has no such power. 2 Kent's Com. 252. 17 Ves. 498. 6 East. 356. Angel and Aimes, 432. 1 Hopkins, 359.

The case in the Supreme court of the United States, was between the corporation, as such, and a stranger to it, in which the former was vindicating its corporate franchises. In 6 Johns. 161, the Chancellor avoided the question purposely; and in the case cited from 439 of the same book, the controversy was in [**9]  regard to property, and not corporate franchises. In 1 Johns. 18, the injunction was not to prevent an election, because it issued before the bank came into existence.

3. But suppose the court possessed the power, this bill does not make a proper case for its exercise. The judges of the election have power to decide all questions touching the election; and this court will not, upon the presumption of an abuse of that power, supersede the authority of that tribunal, and in effect abolish it altogether. Whether the stock in question shall be voted or not, is a question peculiarly fitted for the judges to decide, and with their discretion in that respect, it would be most unbecoming in the court of Chancery to interfere.

This bill merely asks for the interposition of the preventive power of the court, which is never put forth except where the injury anticipated is likely to prove irreparable. But here it is impossible to say how the votes will be given, and of course it cannot be asserted that the complainants will be injured. They complain of a mere potential mischief.

4. The facts charged in the bill do not constitute a fraud, nor the acts complained of amount to a violation [**10]  of the charter of the bank. 6 Harr. and Johns. 126. Chit. Dig. 1184. A beneficial interest in the stock is not necessary to entitle the party to vote. 6 Wend. 510. 4 Cowen. 358. A transfer on the banks books will prevail against a transfer of the certificate of the stock. 3. Wheat. 390. Nothing more is required than that the stock should be transferred as provided by the charter. If a beneficial interest had been required, the legislature would have said so, and given the judges of election authority to inquire into the fact.

Johnson, in reply.

Before the charter of the Union Bank was granted, an association of individuals had been banking under certain articles. The charter gave these individuals the privilege of banking under a corporate name, and exempted them from personal responsibility. Neither the members of the association or the legislature, could have supposed or intended, that the section limiting and regulating the right to vote, should be nugatory either in theory or practice. If this section of the charter may be evaded, why may not every other? The bank it is true, can only look to its books in ascertaining who is the proprietor of its stock, but as between [**11]  individuals, the question always is, who is the real owner. The case in 6 Harr. and Johns. 439, decides, that a party who has conveyed property colorably to another, to make him eligible to office, cannot recover it back; but it does not decide, that the grantee was rendered eligible by such conveyance. The case in 4 Cowan. 358, is totally different from this. There the transferrees were bona fide, and the object was to have the stock represented; whilst here, the purpose is the fraudulent one of multiplying the number of votes to which the stock is fairly entitled, by fictitious transfers.

According to the charter, Poultney, Ellicott & Co. are entitled to but sixty votes, which the bill alleges they intended to increase to two thousand, by the contrivance complained of. This, by destroying the fair relative influence of the complainants in the election, is an obvious fraud upon their rights.

It has been argued that the proper remedy is by quo warranto, but as the judgment upon that writ would destroy the charter, which the complainants are interested in maintaining, it would not answer their purpose. The writ of mandamus is equally inefficient. That is a proceeding to oust [**12]  those who are not entitled to possession, and to put in those who are. It can only be resorted to after the fraudulent party has acquired the possession, and has it in his power to use the funds of the bank to defend his own usurpations. It is a dilatory tedious proceeding, which could not be brought to a close in less than twelve months; during which irreparable injury might be done the complainants and others, not only in the employment of their own money in defending the possession of the illegally appointed directors, but in lending the funds of the bank to persons in whom a properly chosen board would have no confidence.

The subjects of complaint presented by this bill, could not be investigated by the judges of election. They have no process to bring witnesses before them, nor could they swear them if they had. Besides, if the judges are competent to decide such questions, their judgment must be conclusive, and then neither quo warranto nor mandamus would lie.

The objection as to parties can have no effect upon the present motion. The bill charges fraud, and the demurrer admits it, and gives no notice that the want of parties is relied on. A demurrer for want of parties [**13]  must show who are the proper parties. Mitf. 238. If all necessary parties are not made, the injunction is not on that account to be dissolved, but the bill should be amended. Act 1832, ch. 302, sec. 6. It has been said that an injunction will never issue but against parties, but if this be so, it does not follow that it is to be dissolved, as to those who are made parties. But the necessary parties are made. 4 Johns. Ch. Rep. 25.

The transferrees the bill alleges were not known, but if they were, the absence of all interest in them is admitted by the demurrer. Neither can the bank as a corporation have an interest, the question affecting merely the rights of individual stockholders. If however the bank should be considered a necessary party, she is one, process being prayed against the president and directors.

The court of Appeals reversed the order of the Chancellor with costs to the appellants in both courts; awarded an injunction to have the same effect as the one originally granted by the county court; and remanded the proceedings to the court of Chancery, that the necessary orders might be passed by that court to give the appellants the benefit of this decree.  

JUDGES:
The [**14]  cause was argued before BUCHANAN, Ch. J., and MARTIN, STEPHEN, ARCHER, and DORSEY, J. ARCHER, J., dissenting.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*102]  In pronouncing this opinion BUCHANAN, Ch. J., stated the grounds to be,
1. That the matter of the bill furnishes sufficient ground for the interposition of a court of equity.
2. That the facts stated are a violation of the principles and spirit of the charter, and if carried into effect would be a practical fraud upon the appellants, and in derogation of their chartered rights, for the protection of which an injunction was the appropriate remedy.
3. That the relief granted by the injunction was a proper remedy.
4. That the objection raised in argument for the want of proper parties, and to the injunction having issued against persons unknown, is not sustainable.
ARCHER, J., dissented, and stated that he was of opinion that the decree of the court of Chancery should be affirmed.

 [*103]  The determination of the right of voting for the officers of incorporated institutions such as this, is purely a question of legal cognizance, with which a court of Chancery has nothing to do. He said, that if he believed the court could entertain jurisdiction [**15]  in the case, he would perhaps have had little difficulty in saying, that the facts set forth in the bill, presented a case which, if carried into execution, would have been a violation of the charter.
Entertaining the opinion above expressed upon the subject of jurisdiction, he expressed no opinion upon the subject of parties, not deeming the consideration of that question necessary.  

36 of 41 DOCUMENTS 

CRAWFORDS and SELLMAN vs. ROBERT TAYLOR, Trustee of FORD, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 323; 1834 Md. LEXIS 29 

December, 1834, Decided 

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

Bills were filed on the 8th of January, the 22d of April, and the 13th July, 1831, by the appellee, Taylor, as permanent trustee of Stephen H. Ford, an insolvent petitioner, and others of Ford's creditors, against himself and Hugh and William Crawford, James C. Sellman, John Franciscus, and the Commercial and Farmer's Bank of Baltimore, for the purpose of setting aside certain conveyances and assignments to them, and placing the property and funds so conveyed and assigned in the hands of Taylor, the trustee, for distribution among the creditors, under the insolvent laws. The decree of the Chancellor, passed after the consolidation of the cases, was acquiesced in by Ford, Franciscus and the Bank.

The bill against the Crawfords (and the statements in the bill against Sellman are substantially the same) alleged; that Ford became insolvent and unable to pay his debts, about the 17th of May, 1830, and had then reason to believe, and did believe, that he would be compelled to take the benefit of the insolvent laws, unless he could get a discharge from his creditors, upon a surrender to them of his property. That being thus insolvent and unable [**2]  to pay his debts, and expecting to be driven to the insolvent laws for relief, he did transfer and assign to the defendants, the Crawfords, in satisfaction of their claim against him, a large quantity of merchandize, and a considerable amount of notes and other evidences of debt. That said property and funds were transferred to the defendants, before their claims against the said Ford were due, and of his own mere motion, without solicitation or application to him by them; and that said transfers and assignments were made 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 the said Crawfords;--that he actually applied for the benefit of the insolvent laws, on the 5th January, 1830. And they pray that the transfers and assignments so made, may be vacated, and the property and funds paid over to Taylor, the trustee, to be appropriated under the provisions of the insolvent laws.

The answers of the Crawfords and Ford, admitted his application for the insolvent laws at the time stated; and that on the 17th of May, 1830, as alleged, he sold and transferred to them, merchandize and funds [**3]  in satisfaction of a claim against him, due the said Crawfords, for moneys advanced to him by them, and endorsements which they had made on his account, and in regard to which he had pledged himself at the time of the advances, &c. that they should in no event sustain any loss. They deny, that at the time these sales and transfers were made, Ford had discovered himself to be unable to pay his debts, or that they were made in contemplation of an application for the benefit of the insolvent laws, and with intent thereby to give an undue and improper preference to the said Crawfords. On the contrary Ford alleged, that he was then perfectly satisfied, that his business could be arranged, without recourse to such an expedient. The answer of Ford further stated, that in the fall of the year 1829, when his affairs were embarrassed, he was enabled to continue his business by the timely assistance of the Crawfords. The answers further stated, that the before mentioned sale and transfers, were made at the instance of the Crawfords, who state that they were constantly pressing for the payment of their cash advances and endorsements. That they received nothing on account of a balance due them [**4]  by Ford, for merchandize previously sold him; and that the goods obtained from him were credited at the prices he paid for them. That the claim due the Crawfords was evidenced for the most part by promissory notes, which being renewals of others previously given, were not all due and payable at the time of the sale and transfers.

The proof taken under the commission, which is voluminous, is omitted, being as the reporters suppose sufficiently adverted to by the learned judge who delivered the opinion of this court.

Bland, (Chancellor,) on the 2d of January, 1833, declared the transfers and assignments to the Crawfords and Sellman to be absolutely null and void, and that the title to the property so transferred and assigned, be vested in the trustee, Taylor; and that an account be stated by the auditor, &c. The account was accordingly stated, and duly ratified and confirmed by the Chancellor's order of the 24th of May, 1833, and the amount thus ascertained to be due, the trustee directed to be paid with costs. From these decrees an appeal was prosecuted by the Crawfords and Sellman to the court of Appeals.  

DISPOSITION:
DECREE REVERSED, AND BILL DISMISSED WITH COSTS.  

HEADNOTES:

Under the insolvent laws of this State, the intent to give an undue preference by a debtor making a transfer of his property to a creditor or surety is to be considered as subject to the distinctions which have obtained under the bankrupt laws of England, between a voluntary and involuntary transfer; and therefore to avoid a transfer under our system, it will be necessary to establish, that the debtor made the transfer with a view or expectation of taking the benefit of the insolvent law, and also that he voluntarily made the transfer sought to be vacated.

That transfer is not considered voluntary which is made to a creditor demanding payment, although the debt is not due at the time the transfer was made. The creditor is entitled to use vigilance, and obtain security, as well before, as after the debt is payable.  

COUNSEL:
Johnson and [**5]  Kennedy, for the appellants.

1. The question to be decided by this court is, whether the transfers were made in contemplation of insolvency, and for the purpose of giving the appellants an undue preference. It is incumbent on the complainant to show, not only that Ford was insolvent in fact, but that he intended at the time to take the benefit of the insolvent laws, and the allegation of the bill in that particular, is expressly denied by the answers.

In reference to the questions involved in this case, the principles and decisions upon the bankrupt laws of England, and the bankrupt law of the United States, of 1800, are applicable to our insolvent system. The bankrupt laws of neither country in terms declare preferences void, but the courts have annulled them as a fraud upon the system, if voluntarily made by the debtor. The policy of the laws in such cases is regarded as invaded. But the same consequences cannot result from an involuntary and coerced preference, brought about by the threats or pressure of the creditor. When the Legislature of Maryland was dealing with this subject, they knew the judicial construction of the English and American bankrupt laws; and with that [**6]  knowledge, employing as they have done, the same language, they must be supposed to have meant the same thing.

By the act of 1805, a preference though voluntarily and unduly given was not void, though the debtor thereby forfeited the benefit of the law. It was not until the act of 1812, that such preferences were avoided. The provision in the act of 1805 is penal, and cannot be visited upon a party, for an act extorted from him by threats or coercion. Even if the preference was given, when the debtor supposed he might be compelled to petition, it would not be void, nor would he be deprived of the benefit of the laws, if made under the influence of constraint or importunities. The preferences declared void by the act of 1812, are precisely those which, by the act of 1805, would deprive the party of the benefits of the law. In England a preference is protected, which is the result of a mere demand by the creditor. 16 Serg. and Low. 88. A payment made upon compulsion, is not a voluntary preference within the meaning of our laws. Kennedy vs. Boggs, 5 Harr. and Johns. 411. Hickley vs. Farmer's Bank, 5 Gill and Johns. 381.

The cases in England have decided. 1. That the debt paid [**7]  need not be due at the time. 2. That it is immaterial whether the debtor and creditor did, or did not know of the impending bankruptcy. 3. That no suit need be instituted or threatened, nor that the creditor should be very importunate. If the creditor demanded his money in the ordinary way of business it is sufficient. 16 Serg. and Low. 88. 1 Term. Rep. 155. 2 Bos. and Pul. 580. 11 East. 256. 1 Camp. 416. 5 Johns. Rep. 412.

The answers and proofs in this case abundantly show, that the transfers were made at the pressing solicitation of the appellant. The act of Assembly cannot mean that all payments and preferences shall be void, which are made by a debtor in contemplation of the mere probability of taking the benefit of the insolvent laws; because, if that be the rule, then every payment made by a party in insolvent circumstances would be void, as in that case, the subject of such a necessity must occupy his thoughts. 1 Saund. Pl. and Ev. 231. 5 Taunt. 539. 7 East. 544. 3 Ves. 87.

To avoid the preference, it is not enough that he thinks he may become an insolvent petitioner, but that such will be the case. It might well be argued, that preferences are good in this country,  [**8]  which would not be protected in England; as there a man may be declared a bankrupt against his consent, which is not the case in reference to our insolvent system, to which no man against his will can be compelled to resort.

Mayer and Gill, for the appellees.

1. The act of 1812, ch. 77, re-enacted by the act of 1816, ch. 221, makes all sales, transfers, &c. void, made with a view to give an improper preference, and in contemplation of insolvency. These are questions of fact, and the Chancellor is to be governed by the same circumstances, and to make the same inferences as would be made by a jury.

2. In reference to the liability of the appellant, it is wholly immaterial whether Ford purchased the goods transferred to them, for the purpose of doing so or not. If when the transfers were made he knew he must fail, and handed the goods over to them, to give them an improper preference, contemplating at the time having recourse to the insolvent laws, such transfer is void. The circumstance that the claim of the appellants is for money loaned, does not entitle it to more favor; because it was by means of these very loans that Ford's credit was sustained, and the public imposed [**9]  on; and to reward them, would be most unjust to the other creditors, who became such in consequence of deceptious appearances which they enabled Ford to assume. But in a court of equity, where equality is equity, debts for money loaned and goods sold, are placed upon the same footing.

To defeat a transfer to a favored creditor, it is not necessary that the debtor should have absolutely made up his mind to take the benefit of the insolvent laws. If he contemplate such a course, the transfer is void. 6 Serg. and Low. 88. In England a preference is good when made exclusively under the importunities of the creditor, and without the volition of the debtor. But in this case it appears from Ford's answer, that he always intended to prefer these creditors, and the application by them therefore, though it fixed the time when the act was done, was not the only inducement which prompted him to do it. If a design to prefer is apparent, it is voluntary, and therefore void, though the creditor may have applied for it. 2 Bos. and Pul. 582. 1 Stark. Rep. 89. 2 Bos. and Pul. 283. 11 East. 256. 7 Ib. 544. 2 Cowp. 634. 3 Mass. Rep. 325. That cannot be considered an involuntary preference of one [**10]  creditor, which would not have been given to another upon a similar application; and it is manifest from the facts in this case, that the other creditors could not have got a preference, by pursuing the course adopted by the Crawfords and Sellman. The circumstance that the creditor made application, does not per se and proprio vigore legalize the preference. It may be evidence to support it; but still there may be other circumstances to show the preference to be the spontaneous favor of the debtor. Our insolvent laws look to the equal distribution of the funds of the insolvent among his creditors, and forbid the debtor under the circumstances there enumerated, from paying one creditor at the expense of the rest.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J., and STEPHEN, and CHAMBERS, J's.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*329]  CHAMBERS, J., delivered the opinion of the court.
The appeal from the decision of the Chancellor in these cases, is prosecuted by three of the defendants below, Hugh and William Crawford, and James C. Sellman, and seeks to reverse the decree of the 2d of January, 1833, the report of the auditor, and the order ratifying that report.
The cases were consolidated [**11]  by an order of the Chancellor, and so far as the decree affects the other parties, Ford, Franciscus, and the Commercial and Farmers' Bank, it has been acquiesced in. The only questions therefore for the decision of this court, are such as arise out of the transactions of H. and W. Crawford, and those of Sellman. The 

 [*330]  two cases are subject to the same considerations, and the objections urged apply, if at all, with equal force to both. The slight variations in their history as detailed in the evidence, are not of a character to affect the legal principles upon which they depend.
The transfers made by Ford to the appellants, are charged in the bills to have been made, "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," and to be therefore void by the express provisions of the insolvent laws of this State.
The bills assert, and the argument has endeavored to establish as auxiliary propositions. That Ford at the date of the transfers was in fact unable to pay his debts. That he well knew his condition; and that being thus insolvent in fact, and apprised [**12]  of his condition, he made the transfer without solicitation, and of his own mere motion. The testimony in the cause is submitted as establishing these allegations, and as proving also, the knowledge by the appellants of Ford's pecuniary situation when the property was received.
It may be conceded that the testimony does establish the fact of Ford's inability to discharge his debts on the 17th of May, 1830, the date of the transfers. That his property at that time was insufficient in value for that purpose. That Ford was perfectly informed of his insolvent condition, and that the appellants, if they did not certainly know, had every reason to apprehend, and did apprehend his embarrassments and failure. There is no ground to contend from any facts in the case, that actual fraud has been committed by the appellants and Ford, which exclusive of the positive provisions of the insolvent laws, will vitiate the transfers. The effort which seems to have been at one time intended to prove a secret delivery of the property, at unusual hours of the day, so as to escape observation, has altogether failed, and the nature, and amount of the claims due the appellants from Ford [**13]  , and the full and fair value at which the property was taken, negative all idea of that kind.

 [*331]  The court do not perceive any difficulty in the fact, that large purchases were made by Ford within a short period of the transfers. The articles purchased were in the way of his trade, and as is proved, were such as persons pursuing the same business kept in store, and such as at that period of the year were usually purchased by the particular class of customers to whom he principally sold.
The ground mainly relied upon in the argument, and upon which alone any semblance of exception can be urged against the transfers is, that they are in violation of the provisions and spirit of our insolvent laws. It has been justly remarked, that these provisions have been suggested by, and adopted from the English bankrupt system. The foundation upon which that system rests is, that a debtor has no right to prefer one creditor to another, when he is honestly and equally bound to pay all. The courts have therefore properly adjudged, that a debtor contemplating an act of bankruptcy shall not, to gratify his personal partialities, select a favorite creditor and secure him, by an assignment [**14]  of a part of his property, leaving others to share a dividend of what remains, when that favorite creditor had no higher or better claim in law or equity, than the others. But the bankrupt laws, while thus prohibiting to the debtor the voluntary preference of one creditor to another, never intended to deny to any, the advantage of an active pursuit of his claim. The maxim, "vigilantibus, non dormientibus servat lex," is as sound and as applicable since, as before the introduction of the bankrupt system. The voluntary assignment to a creditor has universally been considered, "an undue preference," whilst an involuntary assignment is not so. Indeed, the very terms of the rule would seem to exclude from its operation an act not voluntary, for a party cannot be said to "prefer," or "give a preference," by doing an act not the result of his own volition.
The rule therefore, which may be regarded as running through all the cases on those laws is; that a voluntary assignment, 

 [*332]  or an assignment with an intent to give an undue preference to a creditor, by a debtor in contemplation of bankruptcy is void. Some difference may be found to exist in the facts to which the principle [**15]  of voluntary, or involuntary assignments has been applied, but the rule is distinctly recognized in all the cases. This rule is incorporated in the acts of Assembly constituting the insolvent system of this State. The act of 1812, ch. 77, makes void any deed, assignment, &c. to a creditor, 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."
Former decisions in this court have concluded the question, as to the meaning and construction of the words, "insolvent debtor," here used. The case of Hickley vs. Farmers and Merchants Bank, 5 G. & J. 377, decides, according to the settled construction to which it alludes, that they mean, "taking the benefit of the insolvent laws."
If therefore, the intent to give an undue preference, is to be received as subject to the distinctions which have obtained under the bankrupt laws, between a voluntary and involuntary transfer or assignment, as we think it should, it will be necessary to the appellees to establish, that Ford made the transfers with a view, or expectation of taking the benefit [**16]  of the insolvent laws, and also that he voluntarily made these transfers, to prefer the appellants. We do not think either of these positions are established by the facts and circumstances in the case. There is no evidence to prove, that he had the expectation of being an insolvent petitioner in point of fact. He had before been embarrassed, and had failed, without resorting to such a means of relief. He surrendered to his creditors the property which remained in his hands, and acted as if he seriously desired and expected their acquiescence to his proposed arrangement with them. He knew that such an arrangement was usual, and as his misfortunes were the result of accidents, over which he could exert no control; the failure of the 

 [*333]  fisheries on the Susquehanna for several successive years, and no dishonesty or extravagance appears to be chargeable to him, we cannot adopt the suggestion of the appellee's counsel, that he could look to no other event, but to be driven to the alternative of becoming an applicant for the benefit of the insolvent laws, or of lying in jail. His examination before the commissioners has been used as evidence in this case, by consent, and denies,  [**17]  as his several answers to the several bills in Chancery also denies, that he had such a view or expectation, nor do we find the testimony of any witness to impeach this statement.
While pursuing his effort to obtain a release by arrangement with his creditors, he was availing himself of every means in his power, and calling upon such friends as he could enlist, to avert the proceedings of his creditors at law, and did in fact, by adjusting the most pressing demands upon him, keep himself from being taken in execution until the 1st of January following, being more than seven months after it is supposed he indulged the view and expectation of petitioning, and being also after all hope of compromise with a large part of his creditors was at an end.
Nor do we regard the transfers as voluntarily made. In the case of the Crawfords, the advances were made under circumstances very peculiar. At a moment of most pressing necessity, when the immediate use of money was of the last importance to his credit, and when by the testimony of two of the witnesses he could not obtain it elsewhere, he received a loan from them on the most solemn pledge, which could bind his honor and his conscience,  [**18]  to secure this, and all their other advances, whenever, and however they might demand. They did afterwards demand it, and were urgent and pressing for payment, and prescribed the particular mode, and the particular time for the redemption of his pledge; neither the time nor the mode, being inconsistent with his ability or his obligation. He paid them not all that he was indebted, but to the amount that he had 

 [*334]  pledged--the amount of their loans; and paid them in goods at a fair and full value, and indeed at a price of which they complained, and at which they were not able to sell them afterwards.
In Sellman's case, there is no proof of such a solemn pledge previously given, but it was for a debt of precisely the same kind as Crawford's, and when Sellman insisted on being paid, as one of the witnesses has said was, "urgent and pressing for payment, or security," he satisfied so much of Sellman's debt as arose from loans, in the same manner as he had satisfied Crawford's, leaving each of them other debts still unpaid, which arose in the usual and ordinary transactions between them as merchants.
It has been said that these appellants never would have been [**19]  paid, except for the peculiar relation in which they stood to Ford. But this does not vitiate the payment. A man may yield more readily to the solicitation of a creditor, to whom he is under peculiar pecuniary obligations, and it is perfectly probable that Ford was gratified to have an opportunity to place these peculiar debts in a state of comparative security. But there is not in the whole testimony one solitary fact, that goes to show he ever moved in the matter, or suggested to him the necessity of making a demand upon him; nor indeed is there the least evidence of his intention to do this, or any other act, which should make it necessary for him to discontinue his business and trade, or to diminish its extent, until the appellants required of him the delivery of so much of his stock of goods, as was necessary to discharge their claims.
It was also strongly insisted, that the notes on which the appellants were liable for the advances made to Ford were not due. The cases referred to in the argument, show that this is not material. The creditor is entitled to use vigilance and obtain security, as well before as after the debt is payable, and it was expressly a part of [**20]  the contract with the Crawfords, to secure them at any time, as well as in any mode they might require.
DECREE REVERSED, AND BILL DISMISSED WITH COSTS.  

37 of 41 DOCUMENTS 

REED'S HEIRS AND ADMINISTRATORS vs. E. F. CHAMBERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 490; 1834 Md. LEXIS 43 

June, 1834, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Equity side of Kent county court.

The present bill was filed by the appellee against the appellants, to recover a sum of money, the proceeds of certain real estate, which, under the circumstances detailed by the judge who delivered the opinion of this court, had been paid to the clerk of Kent county court, and by him deposited in bank.

The county court decreed the money to the complainant, and from that decree the defendant prosecuted an appeal to this court.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

Where R sold his land (which was incumbered by mortgage and judgment) to S, and entered into a written contract, binding under the statute of frauds, by which the latter promised to pay one of R's creditors, by a certain day, a subsequent parol agreement, pointing out the mode in which the title to the land should be secured to S, and in effect, carrying the contract into execution, but which postponed the day of the creditor's payment, is no variance of the original agreement; for even where the time of payment is of the essence of a contract, a strict compliance may be waived by the vendor of the land.  

COUNSEL:
Wm. Carmichael for the appellants.

There are a few plain legal propositions which, if recognized by this court, must decide the cause. By the statute of frauds and perjuries no parol contract is binding for the sale of land; and by the common law, and this statute, no written contract can be changed, altered, or added to, by any parol agreement. Roberts on Frauds, 2d Am. ed., 10, where all the authorities are collected in notes, and go to establish this proposition, and further, that the rule equally binds the courts of law, and courts of equity.

In the case of Howard vs. Rogers, 4 Harr. and Johns. 281, Ch. J. CHASE decided, with the concurrence of the other [**2]  judges, that parol evidence is not to be admitted, nor extrinsic circumstances introduced in the exposition of deeds, except only in the case of latent ambiguity; and in Wesley and others vs. Thomas and others, 6 Harr. and Johns. 24, Judge W. DORSEY declares, that "by the rule of the common law, independent of the statute of frauds and perjuries, parol testimony is inadmissible to contradict, add to, or vary the terms of a written agreement." The written agreement between Reed and Spencer was specific, that Spencer should pay the Andersons' judgment, Gettings' mortgage, and pay the balance with interest in twelve months; the parol agreement, which the court below received and adopted, was different and variant, that the lands should be sold by the sheriff. The written agreement was, that the deed should be made by Reed; the parol agreement, that the title should be made by the sheriff. It is manifest that, at the time of the written agreement, one of the objects of Reed was to prevent the land being sold by the sheriff, but he agreed by parol that the sheriff should sell. Judge DORSEY adds, the principle is founded in the wisest policy: it guards the chastity of written agreements [**3]  against all interpolations; but the court below sanctioned the violation of the chastity of this written agreement, which they ought to have protected. Written agreements speak their own views: parol agreements are presented by parol testimony, and subject to misconstruction, fraud, and perjury. This is the foundation of the rule at common law, adopted and sanctioned by the statute of Charles, and courts and judges are bound to preserve and maintain the land-marks of the law.

The appellee, by his bill and the testimony taken under the commission, seems to rest his claim upon the acts done between the parties. By a perusal of the testimony, it will appear that not a single act was done by either party in performance of the written contract; all the complainant was able to prove under the commission was the conversation held with Reed's overseer, in which he promised him some compensation for putting the wheat in good order, and that he sent a few team and some hands to assist in the operation: these were substantive, independent acts. The rule of law must be familiar to this court, where a contract is made for the sale of lands by parol, and possession delivered, the contract is [**4]  binding; and where one party contractor performs his part of the contract, a court of equity will compel performance on the other; 1 Mad'x Ch. 302, Ambler, 586; but the act done must be a substantive part of the contract, not voluntary, and by which the party performing would sustain a substantial injury unless relieved in equity. 1 Mad'x Ch. 304.

A question may be raised whether the appellants, the defendants below, can avail themselves of the defence of the statute of frauds and perjuries without pleading it.

The rule is, that although a party to a parol contract, inhibited by the statute, confesses the contract by his answer, he may still avoid it, by pleading the statute; but if he confesses the contract, or submits to a decree for the performance, he cannot, upon hearing, avail himself of the protection of the statute. 1 Mad'x, 304, 6 Vesey, 554. The defendants below in this cause made no admission, they disclaimed all knowledge of the parol contract, and the plea of the statute of frauds and perjuries would have been superfluous.

Chambers for the appellee. The reporters have not the notes of this argument.  

JUDGES:
The cause was argued before STEPHEN, ARCHER, and DORSEY,  [**5]  Judges.  

OPINIONBY:
STEPHEN 

OPINION:

 [*492]  STEPHEN, J., delivered the opinion of the court.
The question in this case arises upon the following statement of facts: On the 18th of October, 1829, Gen. Philip Reed sold to Richard Spencer a tract of land in Kent county, for the sum of seven thousand dollars; which land was afterwards, on the 1st day of December, in the same year, sold by Spencer to the complainant. Prior to the sale from Reed to Spencer; the farm had been mortgaged to Gettings 

 [*493]  for the sum of three thousand dollars; and the land was then subject to sundry liens arising from judgments against Reed, which, together with the mortgage, amounted to more than the purchase money. On one of those judgments an execution had been issued, and the farm levied on by the sheriff for a considerable sum of money due to Anderson. The contract of sale made between Reed and Spencer is in substance as follows: Reed sold to Spencer his farm for seven thousand dollars, out of which was to be paid the balance of the mortgage, and judgment at the suit of James M. Anderson and Edward Anderson; also a mortgage and debt due by Reed [**6]  to James Gettings, of Baltimore county; and any balance which might remain due, was to be paid with interest to Reed at the expiration of the term of twelve months. It was further stipulated, that Anderson's claim was to be paid by Spencer on or before the 2d of December next. In a short time after this contract, to wit, on the 2d of November, 1829, for the purpose of securing the title to Spencer, it was agreed between Reed, Spencer, and the sheriff, that the land should be sold by the sheriff under the execution then in the sheriff's hands; and it was advertised for sale on the 2d of the following December. On the 2d of November, in the same year, Reed died. At the sale the complainant, who had previously bought Spencer's interest, became the purchaser, for a sum which, added to the mortgaged debt, amounted to seven thousand dollars. The complainant then sold his title to Mitchell for the sum of eight thousand five hundred dollars, with an understanding that Mitchell was to pay the mortgaged debt, and Anderson's judgment, and to pay the balance to complainant. As the most eligible mode of obtaining the title for Mitchell, it was [**7]  agreed by all the parties interested, that Mitchell should be returned as the purchaser, and obtain a deed from the sheriff, for which purpose the land was again exposed to sale, and Mitchell bid a sum which, added to the mortgage, amounted to eight thousand five hundred dollars. The sheriff reported the sale as 

 [*494]  made to Mitchell for the sum of four thousand nine hundred and thirty-nine dollars and fifty cents, and the court ordered the same to be applied to the execution under which the land was sold, and to other judgments which were liens at the time of Reed's sale, excepting the sum of one thousand five hundred dollars, which was paid to the clerk, and afterwards deposited in bank. The seven thousand dollars, the purchase money agreed to be paid to Reed, having been applied to the payment of the mortgage debt and the judgment, the question for the court to decide is, whether the complainant is entitled to the fifteen hundred dollars, the surplus money beyond the sum agreed to be paid to Reed, which Mitchell bid for the land under his contract with the complainant. There can be no question but that the contract between Reed and Spencer [**8]  was legal and binding upon the parties, it being in all respects perfectly conformable to the requisitions of the statute of frauds and perjuries. The verbal agreement entered into on the 2d of November of the same year, was no variation or change of the written contract for the sale of the land, but only indicated the mode in which the title was to be secured to Spencer by Reed. It was, in effect, to carry the contract into execution, and not to add to, vary, or change it. As to the objection insisted upon in the answer, that Spencer forfeited his interest under the contract of purchase, by not paying the purchase money according to the terms of it, we think it wholly untenable, because the principle is well settled, that even where the time of payment is of the essence of the contract, a strict compliance at the day may be waived by the vendor. See 1 Johns. Ch. 270, where the principle is stated to be, that in the sale of lands, time may make part of the essence of the contract, and on default at the day without any just excuse, or any acquiescence, or subsequent waiver by the other party, the court will not help the party in default. In this case, if the [**9]  money was not paid as stipulated by the written contract, the non-payment at the time originated from the express 

 [*495]  agreement of the parties, and all the effect of such omission upon their respective rights, must be considered as waived. We therefore think that there is no error in the decree of Kent county court, and that the same ought to be affirmed with costs.
DECREE AFFIRMED WITH COSTS.  

38 of 41 DOCUMENTS 

NANCY CALWELL, et al. vs. HENRY BOYER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 136; 1836 Md. LEXIS 14 

December, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the equity side of Harford county court.

On 1st June 1833, Henry Boyer filed his bill against Nancy Calwell and others, charging that one Samuel Calwell, late of said county, departed this life about the year 1800, intestate and seized in fee of a tract of land called the Grove; that he left the following children, viz: &c. his heirs at law; that James, son of the said Samuel, resides in the State of Virginia; that Ann, one of the daughters of Samuel, intermarried with Thomas Boyer, and is since dead, leaving the said Henry Boyer and his two brothers, Theodore and James, her heirs at law; that William, son of the said Samuel, is since dead, leaving a widow, Polly Calwell, entitled to dower in her husband's share of said land, and the following heirs at law, &c. John, one of the sons of William, resides in South Carolina, and Laura, one of his daughters is an infant; that Thomas was another son of Samuel, who died intestate and leaving a widow, Nancy Calwell, and the following children, &c. heirs at law. And the bill also charged, that it was impossible to divide said land among the several persons interested, and that it would be for the benefit of all concerned,  [**2]  that the same should be sold. The bill prayed subpoena against the parties; a commission to take the answers of the infants; and publication against the non-residents; and for general relief.

Subpoenas were issued to Harford and Baltimore counties, on the 4th June, 1833; and an order of publication passed as prayed. A commission to take the answer of infants was also ordered on the 3d June, 1833, which was issued on the 16th June, 1833. The subpoenas were returned to August term, 1833, when Henry Boyer filed a supplemental bill to make Samuel Taggart a purchaser of the interest of one of the heirs a party to the proceeding. The answers of the infants by their guardians being in with the proof of publication, the court passed on the 9th June, 1834, an interlocutory decree, pro confesso against all the defendants of full age who had failed to appear, and against Samuel Taggart, who had appeared and not answered, and ordered an ex parte commission to take proof. Upon the return of the commission, the court ordered the tract of land called the Grove, to be sold, and appointed a trustee for that purpose on the usual terms. From this decree the defendants appealed.

The questions [**3]  of fact in dispute upon the evidence appear in the notes of counsel and opinion of this court.  

DISPOSITION:
DECREE AFFIRMED AND CAUSE REMANDED.  

HEADNOTES:

It is no objection to a decree for the sale of real estate, for the purpose of distributing the proceeds among the parties entitled, that the interest of a party to the proceedings to a portion of the proceeds, has not been sustained by proof.

It in such a case however, is necessary that the parties litigant, should prove their title to the property to be sold; but when there was nothing in the proceedings putting their title in issue, prima facie evidence was deemed sufficient to support the jurisdiction of the court.

Since the act of 1832, ch. 302, all objections to the competency of witnesses, and the admissibility of evidence must be raised by exceptions filed in the court of Chancery, or county courts as courts of equity; and no point relating to either shall be raised, or noticed, or determined, or acted upon, by the Court of Appeals, unless it shall clearly appear in the record, that such point had been raised by exceptions as aforesaid.

Where the court below certified, that a bill had been taken pro confesso, against a defendant, and an ex parte, commission issued, because he had failed to answer according to the rules of the court; and such rules were not in the record, nor the time of holding its intermediate equity terms prescribed by law; this court will assume the verity of such certificate, and presume that the order pro confesso, was legitimately passed.

When a supplemental bill is filed to bring in a new party in interest, such new party alone should be made to respond to it.

The answer of one defendant is not evidence against a co-defendant, even as to matters in contest between the complainant and such co-defendant; and much less would such answer be evidence, in adjudicating upon the conflicting claim of the defendant's inter se.

According to the well settled practice in the court of Chancery of Maryland, the issuing and service of a subpoena always precedes the issuing of a commission to take the answer of infants; but a departure from this practice, cannot be made the ground for the reversal of a decree in the appellate court; though at the proper time and for the appropriate purpose, it might have been made the subject of a motion in the court below.  

COUNSEL:
O. SCOTT, for the appellants, contended:

The appellant suggests to the court, that there is error in the decree in this cause.

1. Because there is no proof of the material allegations in the bill.

2. Because there is no answer for the defendant, Samuel, who is alleged to be an infant.

3. Because the order to take the bill pro confesso, and to issue an ex parte commission, passed before the rule to answer expired.

4. That no notice was given to absent defendants to answer supplemental bill, nor have the infants answered supplemental bill.

5. That commission issued to take the answers of the infants, Mary Calwell, John Calwell, (of Thomas,) James Calwell, (of Thomas,) Frances Calwell, Amanda Calwell, and Lucien Calwell, before the same were summoned.

In regard to the first it will be seen, that there is no proof whatever of the sale to Taggart alleged in the bill. In cases like this, where the proceeding is ex parte, the complainant will be required to prove strictly every material fact. The sale alleged is a material [**4]  fact, it makes a new owner to the land, and divests several of the defendants of their interest.

There is no proof of the title of the parties. In a proceeding, all the parties interested in the land ought to be parties, in order that the entire estate may be sold and the money divided.

The only evidence of title in any of the parties, is the testimony of Bussey, who states that S. Calwell, died seized, and his widow lived on the land a long time afterwards, but when she died or relinquished possession does not appear. There should be proof of the possession since Calwell's death. That occured thirty years ago by the allegation in the bill. The patent should have been produced to shew title out of the State. Then perhaps, long continuous possession would have been sufficient.

There is no proof that the persons named as heirs of S. Calwell, are his heirs.

No witness speaks to it but Theodore Boyer, his testimony is inadmissible. He is a party to this suit and there is no order for his examination. Besides he is interested, he is proving himself an heir, and thereby entitling himself to a part of the proceeds of the sale. A defendant cannot be examined but on special [**5]  order, and this case being tried ex parte, all questions are open here. There being infants in this case every fact must be proved, none can be regarded as admitted by them.

Wherever an infant is a party he must answer by guardian before a decree can be had against him. There is no answer for Samuel, one of the infant defendants.

The interlocutory decree in this cause passed 9th June, 1834, and it will be seen by the record, that the rule to answer was laid at the March term, 1834, and that the cause was then continued till August term, so that no order could have been regularly passed till August. The rule to answer must have operated to the day of the next continuance. The act of Assembly requires, that the rule to answer should have expired before any such interlocutory order was passed.

When a bill is amended or a supplemental bill filed, new answers are required. The infants in this case never answered and never were required to answer the supplemental bill, nor was any notice given to the absent defendants to answer the supplemental bill.

According to the practice in the court of Chancery, a commission to take the answer is never issued till the infant is [**6]  summoned. In this case the commission issued before the parties were summoned--this is irregular. The infants ought to be summoned to bring them within the control of the court.

If the testimony of Boyer be excluded, as it is contended it ought to be, then there is no proof of who were the heirs of Samuel Calwell, and there is no proof of the death of Dorsey Calwell and Sarah Calwell, two of the alleged heirs, if his testimony be retained.

The parties or a number of them cannot claim as heirs to Samuel Calwell, from the complainant's own showing Samuel died in 1800, leaving children who were his heirs. The present owners must claim as heirs to the children of Samuel, and there is no proof who the heirs of the children of Samuel Calwell are.

A. W. BRADFORD, for the appellee, contended:

The first objections urged by the appellants to the decree in this case, is the want of proper proof of the material allegations of the bill; and the first defect in the proof which the appellant's attorney undertakes to designate is, that there is no proof of the sale to Taggart, one of the defendants.

To estimate the materiality of this allegation, so far as it relates to the [**7]  subject matter of the suit, it may be well, briefly to recur to the character of the proceeding, which is a bill filed by one of the heirs at law of an intestate, against the other heirs, seeking a decree for the sale of the real estate of that intestate, and a division of the proceeds. (The land being incapable of division, and some of the heirs being infants.) After the filing of the bill, Samuel H. Taggart, the appellant, becomes entitled to the undivided share of Thomas Calwell, deceased, one of the children of the intestate, by a purchase under a decree, and this fact is stated in a supplemental bill, which is filed for the purpose of making said Taggart, a party to the proceeding. He now objects that the complainant produced no proof under the commission of this sale to him; to which we reply that the whole proceedings on the equity side of Harford county court, under which said Taggart became the purchaser, are specially referred to and made part of the supplemental bill, and would shew, if embodied in the record, as they should be, that said sale to Taggart, was made and reported under oath by the trustee, and confirmed by the court.

(The appellee could here take occasion [**8]  to suggest a diminution and defect in the record in this particular, in not setting forth the judicial proceedings thus referred to.)

The supplemental bill thus setting forth this judicial sale, certainly presents such a prima facie proof of the fact of sale as will suffice at least, until there is a denial of it by some of the parties interested. Instead of there being such a denial, it will be observed, that the only parties interested in the fact of this sale to Taggart, have answered the bill and disclaimed all interest in the subject matter of the suit, expressly on the ground that this sale to Taggart had taken place. See the answers of the children of Thomas Calwell.

The next defect in the complainant's proof which the appellant undertakes to specify, is that we have failed to prove title in the intestate, or to prove that the parties to the bill are his heirs at law. Admitting that we are to prove all the material allegations of the bill, yet certainly in the absence of all denial of any of those allegations, the description of proof by which these averments are to be sustained, will not be required to be strictly, full and conclusive. The bill alleged that Samuel [**9]  Calwell died seized of certain real estate--that it descended to a number of heirs at law, some of whom are infants--that it is wholly incapable of division, and that it would be beneficial to all, if the same were sold and the proceeds divided; and we think that a recurrence to the testimony under the commission will shew these allegations to have been all proven. Bussey, one witness, proves that the intestate owned the land for a long time during his life; that he died seized of it, and his widow afterwards continued in possession until her death.

It certainly cannot be necessary in a case like this, (as the appellant seems to intimate) that a complainant should produce strict proof of title, deducing it from the State to the party last seized, as though he were tracing title in an action of ejectment.

The bill does not contemplate any adversary titles, but is simply to procure a sale and division of property in which all the parties have a concurrent interest; and having proved that the ancestor owned and died seized of the land, is certainly sufficient to entitle the heirs to a division or sale, at least, until an adversary title is in some manner set up.

The testimony [**10]  of Theodore Boyer, who proves that the parties named in the bill are the heirs at law of the intestate, is next objected to on the ground, that he is one of the defendants, and has been examined without an order for that purpose. To this it may be first replied, that he does not prove himself one of the defendants, nor is there any thing in the record to shew that this witness and one of the defendants is the same person. But if it were so admitted, still we say it is no cause to reverse the decree, because when the proceedings should come before the auditor for distribution of the proceeds among the parties, it would then be the proper time to take proof as to the claims of the heirs or parties entitled, so that no possible injury could result from the admission of this testimony. And as it regards his examination without the order of the court, as there is nothing to discredit or throw suspicion on his testimony, it will not, as we apprehend, be now rejected, if the court are satisfied that an order would have passed for that purpose, upon application. The principle being that where acts are done bona fide, for the doing of which an order would on application have been passed, they [**11]  shall be regarded in the same light as if an order had previously been obtained. Lee and others vs. Stone and McWilliams, 5 Gill and John. 1.

The second objection urged by the appellant assumes what I think is not the fact, viz: that there is no answer for Samuel Calwell, one of the infant defendants.

The return of the commissioner appointed to take the answer of this and the other infants, expressly states, that he has taken the answer of Samuel and the other infants, and annexed them to his return. The guardian in reciting the names of the infants, does, by what is evidently a mere slip of the pen, use the christian name of William, in the place of Samuel. This is palpably a mere clerical error, for by so doing it will be seen that he uses the name of William twice. But the guardian himself expressly declares, that he answers as guardian for all the infant children of Thomas Calwell, one of whom is the said Samuel, as it appears by the proceedings; the error is merely in writing the christian name of one child for the other, as it will be hardly supposed there were two of the same name.

The third objection is also founded on a false hypothesis, viz: that the order [**12]  for the ex parte commission issued before the rule answer expired. The county court as courts of equity, are authorized by act of Assembly to hold intermediate chancery terms, to which process is returnable, and to which by our invariable practice all such rules operate; and although it may be said there is nothing in the record to shew this practice, yet we may well reply that the burthen is on the appellant to shew that by the practice or the rules of the court the rule answer in this case extended as is alleged to August, and had not expired at the June term, when the interlocutory order passed. More particularly is it incumbent on the appellant to shew this, when the order itself states as it does, upon its face that all the defendants were in default.

The fourth objection is, that no notice was given to the absent defendants to answer the supplemental bill, and that the infants have not answered said bill. To this we reply, that the supplemental bill was of such a character and for such a purpose as to require no answer from any except Samuel Taggart, the new party created by that bill. Its sole object, as is apparent, was to make said Taggart, (who acquired an interest after [**13]  the suit commenced) a party to the bill. The same end might perhaps have been answered by an order to amend, but whether proposed in the one way or the other, its object being obviously merely to make a new party, having no relation to any other matter, and not at all affecting the substance of the bill, there was no necessity for a new order of publication as to the absent defendants. Whilst as it regards the infants (if there was any thing in the objection,) it will be seen that they do in effect answer both the original and supplemental bill; their answer coming in long after the filing of the supplemental bill, and all of them except one (Laura Calwell) expressly disclaiming all interest on the very ground of the sale to Taggart, which is the only fact stated in the supplemental bill. But that there is no necessity that the other defendants should have answered the supplemental bill, will be fully seen by reference to the authorities, which expressly hold, that where it is merely used for the purpose of bringing in a new party, the defendants to the original bill need not be made parties. Ensworth vs. Lambert, et al, 4 John. Ch. R. 604. 6 Ib. 450.

The fifth and last objection [**14]  is, that the commission issued to take the answer of some of the infants before they were summoned. In so doing there is nothing contrary to the practice in chancery upon that subject, on the contrary, I think it is generally conformable to that course. In England, the practice once was and may still be, whenever the infant was in the kingdom to bring him personally before the court, and have his answer taken there; but with us the practice has been invariably different, and there exists no necessity for summoning him at all, if he appears and becomes a party regularly without a summons. And here there would appear to be still less reason for the previous summons; as all the infants mentioned in the objection disclaim all interest in the suit, which is also manifest from the proceedings exhibited.

The authorities warrant this practice in relation to taking the answers of infants, as will be seen by reference to Banta vs. Calhoon, 2 Marsh. 167. Pendleton vs. McCroy, Dick. 736. Before concluding these notes I would further suggest, that there does not appear to have been an appearance entered for any of the defendants except Taggart, and who would of course be the sole appellant,  [**15]  which is in strict accordance too with the fact; the record up to this day shewing no appearance for any of the other defendants--which being the case, several of the objections urged by the appellant, as they have no relation to his interests, could not be regarded, it being established that the appellate court decrees only in relation to the rights of those who are properly parties to the appeal. In fact, if I may be permitted the remark, the appeal itself presents rather the appearance of an unnecessary and vindictive proceeding, inasmuch as if the defendant, Taggart, or any other was prejudiced by the interlocutory proceeding, based upon his default, he could have come in, and if he had any defence might have been permitted to exhibit it, instead of which, without even to this day opposing any denial to the claims of the bill, he seeks to embarrass it by the prosecution of this appeal.  

JUDGES:
The cause was submitted on the notes of counsel to BUCHANAN, Ch. J. and STEPHEN, ARCHER, DORSEY, CHAMBERS, and SPENCE, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*145]  DORSEY, Judge, delivered the opinion of the court.
The reversal of the decree in this case has been claimed on five distinct grounds. The [**16]  first of which is, because there is no proof of the material allegations in the bill. The alleged defects in the testimony are first, that there is no proof whatever of the sale to Taggart, one of the defendants. The object of the bill filed in this case is to obtain a decree for the sale of a tract of land called the Grove, whereof Samuel Calwell died seized and intestate, in order that by the future decree or order of the court, the proceeds of sale might be distributed amongst those entitled thereto. To 

 [*146]  enable the court to pass such decree it is necessary that it should appear, that all persons having an interest in the land are parties to the suit; that they may have an opportunity of protecting their interests and shewing cause, if any they have, why a sale should not be decreed. It is not pretended that there are any parties in interest, who are not made parties to the suit; nor has the decree finally adjudicated upon the extent of the rights of any of the parties. It simply provides for a sale of the land, and that the money arising from such sale be brought into court for distribution. It has adjudged no part thereof to be paid to Taggart, or [**17]  to any body else. All and each of the appellants had an opportunity afforded them of coming into court, and shewing cause against the passing of such a decree. Having failed to do so, it forms no objection to the decree that the interest of Taggart has not been sustained by proof. The decree is equally necessary and just, whether the title of Thomas Calwell, to one-fourth part of the Grove, remains in his descendants named in the original bill or vested in Taggart, as stated in the supplemental bill. If Taggart has no interest in the property, he has sustained no injury from the decree; and has neither motive or right to ask its reversal. It not being recognized by the decree, the other defendants have no pretence for complaint that sufficient proof has not been adduced to sustain it.
The second alleged defect in the proof is, that no title in the property in question has been shewn in the parties litigant in this cause. If this allegation were true, that the decree was erroneous could not be denied. It must be borne in mind in considering this objection, that the title to the Grove does not appear by any proceeding in the cause to have been put in issue [**18]  or in any wise controverted; on the contrary according to the statements in the bill, the title of all the parties was deduced from Samuel Calwell the intestate. The only testimony offered on this subject was that of Edward F. Bussey, who deposed, that he knew the land whereon the said Samuel Calwell, deceased, formerly lived, which deponent 

 [*147]  understood was called the Grove; that said Samuel Calwell, now deceased, owned and held the said land for many years before his death, and died seized of the same, and that his widow continued to hold possession and occupy the said land for many years after the death of her said husband. This proof in such a case we think sufficient prima facie evidence of title in the parties in this cause, upon proving themselves the heirs of the intestate, to sustain the jurisdiction of the court over the subject matter.
The third defect in the proof which the appellants rely on is, that there is no proof that the persons named as heirs of S. Calwell are his heirs, except that given by Theodore Boyer, who it is objected is a party to the suit, and has a direct interest in the testimony he gave, which proved that [**19]  the deponent was one of the heirs of Samuel Calwell, deceased. This exception to the testimony of Boyer, if interested as stated, if taken at the proper time and place would have been conclusive against its reception. But it now comes too late. By the fifth section of the act of 1832, ch. 302, it is enacted, that hereafter in all causes in the court of Chancery or any county court as a court of equity, all objection to the competency of witnesses, and the admissibility of evidence, shall be made by exceptions filed in the cause, and no point relating to the competency of witnesses or the admissibility of evidence shall be raised in such causes in the Court of Appeals, or noticed, or determined, or acted upon by the Court of Appeals, unless it shall plainly appear in the record, that such point had been raised by exceptions as aforesaid in said court of Chancery or county court. In this case no such exceptions were taken in the county court, and consequently they are inadmissible here. By connecting the testimony of Theodore Boyer, with the statements in the bill of complaint to which it refers, it does sufficiently appear who were at that time the heirs of Samuel Calwell [**20]  , to remove any obstacle in this respect to the decree of the county court. The appellants then are not entitled to a reversal of this decree on their first ground.

 [*148]  The second ground assigned by them is, because there is no answer for the defendant, Samuel, who is alleged to be an infant. The objection here raised, is founded on a manifest mistake in inditing the answer of the guardian to the minors, in which the name of William, one of the defendants is twice written, once by mistake for that of Samuel. This fact is demonstrated by the return of the commissioner, the officer empowered by the county court to appoint the guardian to the infants and to take their answer, who certifies, that he appointed the said guardian to answer for all the infants, including the said Samuel, and that he had taken the answer of the said infants by their said guardian, which he enclosed with his certificate, and on which answer was indorsed the certificate of the said commissioner; that the guardian by him appointed to answer for the above named infants, had made oath before him, that the facts stated in the answer were true. Such an objection made at the time and [**21]  under the circumstances in which this has been urged, we think cannot avail the appellants.
The third ground relied on by the appellants is, because the order to take the bill pro confesso, and to issue an exparte commission passed before the rule to answer expired. We do not feel ourselves at liberty to say that there has been any irregularity in the passage of this order. Neither the rules of Harford county court upon this subject, nor the time of holding its intermediate equity terms prescribed by law appearing before us; and the court certifying that the time to answer had elapsed, we will in the absence of all proof to the contrary assume the verity of their statement, and presume, that the order pro confesso, was legitimately passed. There is nothing in the record to shew, that the rule to answer extended to the August term. It may by the rules of the court have been limited to some intermediate day, or to the intervening equity term of the county court.
There is nothing in the fourth ground on which it is sought to reverse this decree, to wit: that no notice was given to the absent defendants to answer the supplemental bill, nor 

 [*149]  have the [**22]  infants answered the supplemental bill. None of the descendants of Thomas Calwell, whose rights it is alleged in the supplemental bill had passed to Samuel Taggart, were absent defendants having an interest in the subject matter. It would have been idle to call on them to respond to it. The assertion that the infants have not answered the supplemental bill is not strictly conformable to the facts. Their answer is substantially a confession or reiteration of the allegations in that bill. But concede that the adult heirs of Thomas Calwell were all non-residents, and that the answer of the infants had been confined to the matters charged in the original bill; as concerns the present question it forms no objection to the validity of the decree. The supplemental bill was filed solely for the purpose of bringing in a new party in interest, and he alone should have been made to respond to it. Ensworth vs. Lambert and others, 4 Johns. Ch. 605, and McGown and others vs. Yerks and others, 6 Johns. Ch. 450. Suppose all the heirs of Thomas Calwell had answered the supplemental bill and denied every fact in it, it could avail them nothing. They [**23]  could not have used their answers, no matter how responsive they might be to the matters charged in the bill, as evidence against the claims of the defendant, Taggart. As to him they were res inter alios acta. The answer of one defendant is not evidence against a co-defendant, even as to matters in contest between the complainant and such co-defendant; much less would it be so in the adjudication of conflicting claims between the defendants themselves.
The fifth ground on which it is insisted, that this decree should be reversed is, that a commission issued to take the answer of the infant defendants before any subpoena was served upon them. According to the well settled practice of the Chancery court of Maryland, the issuing and service of a subpoena always precedes the issuing of a commission to take the answer of infants. But the matter complained of is a mere irregularity in the process of the court, by which the parties were brought before it to contest their rights. It in no wise affects the principles of the decree, nor forms any 

 [*150]  ground for its reversal. The infant defendants by this departure from the usual course of making them parties [**24]  to this suit, sustained no injury, were subjected to no inconvenience, were deprived of no right or advantage which they would otherwise have enjoyed. They had the same opportunity of defending themselves by their answer, and protecting themselves from the relief sought by the appellee, as if their appearance in the county court had been affected by the usual course of proceeding. This irregularity in the process of the court by which the defendants were made to appear to the suit, forms no ground for objecting to the validity of the decree. At the proper time and for the appropriate purpose it might have been made the subject of a motion before the county court; but in an appellate court, it cannot be urged as a ground for reversing the decree. The decree of the county court is affirmed with costs, both in this court and the county court, and the case is remanded to Harford county court, that such further proceedings may be had therein, as the nature of the case may require to do justice to the parties according to their respective rights and equities.
DECREE AFFIRMED AND CAUSE REMANDED.  

39 of 41 DOCUMENTS 

THE MARYLAND SAVINGS INSTITUTION vs. JOHN SCHROEDER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 93; 1836 Md. LEXIS 10 

June, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the court of Chancery, and from an order granting an injunction upon bill and answer.

On the 24th December, 1834, John Schroeder filed his bill in Chancery, charging, that at December session, 1826, The General Assembly of Maryland, passed an act incorporating certain persons, and all other persons becoming members of The Maryland Savings Institution, a body politic; granting them among other powers, that to regulate the manner of making and receiving deposites, the forms of certificates to be issued to depositors, and the transfers thereof--to provide for the investment of funds and admission of members. That the said corporation by its charter, was capable of receiving from any free person or persons any deposite of money, and that all money so received should be invested in public stocks or other securities, at the discretion of the directors, and in the manner deemed most safe and beneficial; and prohibiting expressly the loan of any of the said funds to any officer or director of said corporation. That in every year the directors should make a dividend of profits and pay the same to the depositors. That the said corporation was prohibited from doing any act inconsistent [**2]  with the privileges secured to the existing banking institutions of the State That the company was organized, and under the third and fifth sections of the first article of the by-laws, the complainant became a weekly depositor and so continued, until the receipt of a circular from the treasurer of said institution, he was required to discontinue depositing, at which time his deposites amounted to $ 520. That the depositors upon receipt of said circular did submit to the proposition contained in the resolution set forth therein, to change the original character of their deposites, though the same was not done of their free will or advisedly, but in consequence of the penalty attached by the resolution aforesaid to a non-compliance with the law referred to therein, and that the depositors did not thereby intend or design relinquishing their character and claims as depositors, and that said resolution and by-laws were void; that loans were made to directors and officers of the said corporation; that said resolution and by-laws were made to conceal such loans and in fraud of the right of depositors; that the certificates issued by such corporation bearing interest are void, and were entered [**3]  into to enable said company to use banking privileges contrary to its charter, through the aid of the sums deposited; that it did in fact erect itself into a bank, and assumed banking powers in the discounting of notes and circulation of bank paper; that complainant never became a member of such corporation; that said corporation is insolvent and in May, 1834, suspended payment; that complainant is a depositor in said company and claims to be entitled to the amount of his deposite, either to the exclusion of the holders of the certificates of special deposite or in common with them, which right the said corporation denies. The bill further charged, that the institution and its directors are engaged solely in settling up its business, and disposing and distributing the funds and effects held by it, which belong to its depositors, and that settlements are continually effected by giving unjust and improper preferences; that it is paying or intends paying as far as practicable, the whole amount of the certificates of special deposite, whereby all the funds and effects held by said institution will be exhausted to complainant's utter and irremediable injury. To the end that equity might [**4]  be done in the premises by an equal and just distribution of all the funds and effects held by said institution among all its depositors. Prayer for a summons to the company, an answer to the bill, and various special interrogatories, writs of subpoena for the directors, and injunction, and for general relief.

With the bill was exhibited various documents, among others as follows:--

1. Resolution of the directors of May, 1831.

"Resolved, that the present weekly depositors of this institution terminate their deposites, as they are now received with the current month; and that they be notified that such deposites will cease to bear an interest, or be entitled to a dividend of the profits of the institution after the first day of December next, unless they are in the meantime converted into permanent stock of the institution in conformity to the following bye-laws."

Extract from the By-laws.

Every weekly depositor desiring to make a permanent investment of his, her or their deposites, or any adequate portion of them may at his, her or their option, by subscribing an agreement to that effect in a book to be provided for that purpose, convert the same into a share [**5]  or shares of stock of the par value of twenty-six dollars each, which share or shares shall be transferable on a book to be kept in the institution by the holder in person or attorney. Which stock shall vest by devise or administration on the death of the holder in the legal representative of such holder. But no such investment, nor any transfer of such stock, shall be permitted to be made by a married woman, or any person under the age of twenty-one years, nor shall any deposites after being so converted into stock, be subject to be withdrawn. And all shares of stock shall be entitled to dividends of the profits made in the institution.

2. The third and fifth sections of the by-laws referred to in complainant's bill.

Sec. 3. Any person or persons wishing to become a depositor or depositors shall apply at the institution, and having approved of the charter and by-laws shall signify his, her or their assent thereto, by signing the same, at which time each depositor or depositors shall affix to his, her or their name, the sum proposed to be deposited weekly by him, her or them, the same not being less than one dollar, and whatever sum shall be thus affixed to each name, shall [**6]  be paid at the time of subscribing, and shall continue to be paid into the institution weekly thereafter, so long as the person or persons agreeing to make such deposite shall be connected with the institution.

Sec. 5. Any person or persons who shall agree to become a weekly depositor or depositors in this institution, shall deposite such sum as may be affixed to his, her or their names at the institution on Monday of each week, during such time, being not less than five hours, as the institution may be kept open for the transaction of business; and if any person or persons shall neglect, omit or refuse to make his, her or their weekly deposite, at the time required hereby, he, she or they, as the case may be, shall be fined in the sum of six and a quarter cents weekly, for each and every dollar so remaining unpaid; provided nevertheless, that nothing herein contained shall be construed to oblige any one to continue his, her or their deposites, who may have signified an intention to withdraw from the institution agreeably to the conditions hereinafter provided.

3. Notice from the directors of their design to receive certificates of special deposite in payment of debts due [**7]  the institution.

4. A form of the certificates of special deposite.

On the filing of this bill and exhibits, the Chancellor, (Bland) on the 24th December, 1834, ordered that the application for an injunction should stand for hearing, with or without all or any of the answers, on the 14th January, 1835, provided a copy of the order and bill be served on each one of the defendants on or before the 3d January.

The Maryland Savings Institution answered the bill, and alleged that the said institution having transacted business up to May, 1831, and received from weekly depositors a large amount, and having also received on deposite from individuals at four or five per cent. interest, it was thought expedient for the security of the existing engagements of the company, that it should be proposed to said weekly depositors to waive their privilege of withdrawing, as allowed by the by-laws, their deposites, and to agree that the same should be permanently, until the expiration of its charter, retained by said corporate body and assume the form of capital stock, and be divided as such into shares for the convenience of transfer; that in pursuance of this view, the directors did [**8]  pass a resolution and by-law exhibited with the bill, that the plaintiff conformably thereto, assented to continue his weekly deposite fund in the said institution, and to convert the same into the form of capital stock, and did so of his own free will and in writing, that such arrangement took place with others to amount of $ 242,835, and that no restraint or coercion was used to compel it; that it was entirely optional with complainant as with other depositors to accede to it or not, and that said conversion was not planned or proposed with a view to the concealment of any fraud practised by the directors on the rights of depositors, or to exercise banking powers; that this conversion having been generally and notoriously accomplished, the directors proceeded on its basis to attract business and public confidence, and special deposites to the amount of $ 229,176 50, made since that conversion; that the complainant always knew that special deposites were so taken; that increased dividends were declared and received by complainant, from eight to ten per centum. The notice No. 3, ante, was admitted, but the insolvency of the company in relation to creditors was denied, and it was also [**9]  denied that they had received certificates of special deposite in any other way than as payment for debts due, or that they have given any improper preferences. The answer relied upon the acts and doings of the complainant as a bar to his complaint. Various other matters of defence not strictly responsive to the bill were also stated, but which the reporters do not deem material to the question decided by this court.

The defendants exhibited with their answer the following document signed by the complainant.

"The undersigned weekly depositor in The Maryland Savings Institution, do hereby agree and request, that $ 520 of my present deposite in the said institution may be converted to and vested permanently in twenty shares of stock of The Maryland Savings Institution, in my name. Given under my hand the 28th June, 1831. JOHN SCHROEDER."

On the 27th January, 1835, the complainant with many other stockholders in said institution, filed an amended bill charging that the present board of directors thereof, or a majority of them, were elected by the former board, after the institution had suspended and was known to be insolvent, by the members thereof severally and successively [**10]  resigning in order to create vacancies, which the remaining ones filled up, thus making the present board; that the present board was constituted for the sole and avowed purpose of settling up the affairs of the said institution, and not to transact the business authorized by its charter, and that the present board considered themselves trustees for the purpose of collecting and distributing the affairs of the company; that the said institution is so entirely insolvent as to be utterly unable to resume its business; that the supplemental charter of 1834, ch. 185, was never accepted by the institution, and that the complainants are therefore not members of said institution, and have done nothing to procure or accept said law. Various documents were filed with the amended answer to show the insolvent condition of the company.

The answer of the new board of directors to the amended bill re-asserted, that the change from weekly deposites to stock was made with full knowledge, freely and voluntarily by the principal part of the depositors, the receipt of increased dividends by them; that some of the former board of directors had borrowed the funds of the institution, previously to [**11]  the passage of the resolution converting deposites into stock, but that no loss can yet be traced therefrom; that such resolution was not adopted for the purpose of concealing that the company had invaded the banking privileges of other corporations; that certificates of special deposite had been issued in the forms as charged; that complainants became and were members of the institution and voted as such; that the new board of directors were appointed in good faith and upon the request of the stockholders; that the institution is not insolvent and they believe it will pay its depositors; that no new business was transacted; that the new directors have been occupied in settling its affairs, and have received the certificates of deposite in payment only; that no unjust and improper preferences have been allowed; that the complainant and others as stockholders are not entitled to a dividend of the assets of the corporation, in common with the creditors thereof; that such a principle of distribution would be unjust if not fraudulent towards creditors; various matters not material to the questions ultimately decided were also set forth in said answer, showing the condition of the accounts [**12]  between the institution and The United States Insurance Company, and The Susquehanna Bridge and Bank. The exhibits with the original and amended answers were not denied.

On the 3d February, 1835, the Chancellor, (Bland) ordered a writ of injunction to issue, directed to The Maryland Savings Institution, its directors, agents and servants, commanding and enjoining it and them forthwith to surcease, give over, and refrain absolutely from paying, parting with, disbursing, releasing or remitting any money, or any of the funds which belonged to it, or were held by said institution, on or before the 6th day of May, 1834; except in so far as may be necessary to demand, sue for, get in, recover and collect, all or any of the said moneys, funds, effects, property, rights or credits, claimed by or belonging to said institution; and safely to keep and hold the same, until the final hearing of this case or the further order of this court.

From which order the defendants prayed an appeal.  

DISPOSITION:
ORDER REVERSED.  

HEADNOTES:

The depositor of a sum, weekly, in an incorporated Savings Institution, which he was entitled to withdraw at pleasure, agreed with and requested the institution to convert and vest his deposites permanently into stock of said company. Upon the conversion he received increased dividends and participated in its entire profits. The institution becoming insolvent, and receiving in the course of its settlements with its debtors, its own certificates of deposite in payment, which would absorb all its available funds. The depositor on the ground that a conversion of his money into stock was in violation of the charter of the company, applied for an injunction. Held, that whether the charter authorized it or not, he was not entitled to the restraining power of the court.

An application to a court of chancery for the exercise of its prohibitory powers or restrictive energies, must come recommended by the dictates of conscience and be sanctioned by the clearest principles of justice.

Where a party reaps profits by his own voluntary act, founded upon contract with another, he is not as against the creditors of such other party at liberty to vacate his contract to their prejudice, and claim to participate in equity and conscience, upon the insolvency of such other party, equally with his creditors in his estate and in opposition to the terms and effect of the original agreement.

A court of equity decrees the specific execution of a parol agreement, on the ground of part performance, and notwithstanding the express provisions of the statute of frauds. This is on the ground of fraud in refusing to perform after performance by the other party, and to prevent the statute from being an engine of that fraud, which it was enacted to prevent.  

COUNSEL:
D. STEWART and MAYER, for the appellant, contended:

1. That the corporation had the power to pass the resolution and by-law of May, 1831, under the third and fourth sections [**13]  of their charter, which was created by the act of 1826, ch. 189, and that the conversion of the deposites into stock was a legitimate exercise of power. It was a due exercise of the power of investment, which the charter confers in the most unlimited terms.

2. This stock thus created out of the funds of the original depositors, was the security to which the special depositors looked, and it attracted a large amount to the institution. This last class of the depositors placed their funds there upon the faith of that security, and it would be a fraud upon them now to withdraw them. The conversion was made with the consent of the weekly depositors, and from that time to the failure of the bank, they have received annual dividends at the rate of from eight to ten per cent., and these dividends were swollen to that amount, by the employment of the moneys of the special depositors who could not receive more than five per cent. The appellants explicitly deny all the fraud charged in the bill, but independently of such denial there is no pretence for any such allegation. The weekly depositors had ample time given them for deliberation, and after carefully considering the subject, they [**14]  all consented to the conversion, and continued, until disasters overtook the bank to receive the fruits of the change. With what show of equity therefore can they now complain or ask to be absolved from the consequence of their own act?

3. The supplement of 1833, ch. 135, was to give the privilege of voting to the new stockholders; the appellee and his associates. To confer upon them the rights of stockholders, and of course the question of assenting to this modification of the charter, was submitted and assented to by the original members of the association, and these privileges were exercised by the appellee and the rest. This estops him from repudiating the character of stockholder. The contract created by the resolution of 1831, and the act of 1833, was founded upon a valuable consideration. Little vs. O'Brien, 9 Mass. Rep. 403. Chester Glass Co. vs. Dewey, 16, Ib. 94. Bosley vs. McKim, 7 Har. and John. 469. According to the charter of 1826, the special depositors had no security but the bills and notes discounted by the institution. There was no banking capital; but the act of 1833, passed in pursuance of the resolution of 1831, and with the consent of the weekly depositors [**15]  changed their deposites into stock, and thus placed their funds between the special depositors and loss. It was surely competent to the legislature to do this, and therefore, whatever may be thought of the resolution, its defects were healed by the act of 1833. There can be no doubt of the power of the legislature to have provided a stock capital by the original act of incorporation, before the money was subscribed; and if so, why may they not convert into stock capital previously subscribed, with the consent of the subscribers?

R. JOHNSON and CAMPBELL for the appellee.

The present injunction was granted upon bill and answer, and the unanswered allegations of the bill are to be regarded as true. This is the rule upon motions to dissolve. Young vs. Grundy, 6 Cranch, 51. Warfield vs. Gambrill, 1 Gill and John, 510. And upon such motions new matter set up in the answer is not regarded as true. Minturn vs. Seymour, 4 John. Ch. R. 499. Nor is the answer even when responsive to the bill entitled to full credit, it being the answer of a corporation not verified by oath. Fulton Bank vs. New York and Sharon Canal Company, 1 Paige, 311. The assumption of banking powers by this corporation [**16]  was a violation of the pledge of the State, not to increase the banking capital in Baltimore, which pledge was expressly saved in the charter. That charter conferred no power upon the corporators to convert deposites into permanent stock, even with the consent of the depositors, nor can such power be implied from the object and scope of the enactment. Its exercise therefore was wholly void. Kidd on Corp. 70. Angel and Aimes, 59, 60. New York Firemen's Ins. Co. vs. Ely, 2 Cowen, 709. North River Ins. Co. vs. Lawrence, 3 Wend. 483, 485. Life and Fire Ins. Co. vs. The Mechanics' Fire Ins. Co. 7 Ib. 34. 4 Wheat. 636. Beatty vs. Lessee of Knowler, 4 Peters, 171. The rule is, that a corporation cannot claim the benefit of a contract, either as plaintiff or defendant, unless it can show the power to make it, either in express terms, or by fair implication from the charter. And it is the same in effect, if the franchise exerted does not extend to the particular contract set up, as if there was no such franchise at all. In either case the act done is beyond the power of the corporation, and consequently void.

The third and fourth sections are relied upon, as giving the power in question;  [**17]  but they do not. The power given in the third, to provide for the investment of deposites, is to be taken in connection with the fourth, and means only, that they may select such public stocks or other securities as may be deemed best. If this institution has the right to convert its deposites into banking capital, there is no limit to the amount which may thus be created, for there is none to the deposites which they are authorized to receive, and thus the banking capital may be augmented to an indefinite extent, contrary to the invariable usage of the legislature, which has always been to specify and limit the amount of its capital when a bank is created.

Suppose the case of a bank with a limited capital, but without limit in the use of its credit was to take deposites, and with the consent of the depositor was to convert them into capital, would it not be unlawful? And why is not the same thing unlawful, when done by an institution which has no authority to have capital at all?

By the fifth section, the whole profits are to be paid to the depositors. If therefore, the conversion of these deposites into stock is legal, then the owners of them are entitled to nothing, as [**18]  they lose the character of depositors, and assume that of stockholders for whom no provision is made in the section providing for the distribution of the profits.

But suppose this view is erroneous, and that the depositors whose deposites have been commuted into stock, are entitled to receive the large dividends which it is alleged they have, then the object of the law which contemplates an equality of profits is clearly violated, and for that reason the act of commutation is unlawful. There can be no doubt that the charter intended, that all the depositors should participate equally in the dangers and profits of the concern. It was never designed by the legislature, to be converted into a stock-jobbing machine, liable to be prostituted to the purposes of speculation, and involved in the dangers which are inseparable from institutions which are so employed. The managers of it had no more right to pervert it to such objects, than would chancery trustees be authorized to invest funds, which the court could not at once administer. Security and moderate profits was the end aimed at in the establishment of the institution; not high gains, and the perils unavoidably consequent upon [**19]  them.

2. The consent of the depositors to the conversion can make no difference. The question still is, was the franchise exerted, conferred by the legislature? If it was not, the act, whether assented to or not, is unauthorized. It is the State which is injured whenever a franchise is assumed, which was not granted.

Suppose this institution with the full consent of all the members had issued a fire policy, and taken a note for the premium?

Could the company have compelled the payment of the note, or the assured have recovered upon the policy in case of loss? Neither could have been done. Life and Fire Ins. Co. vs. The Mechanics' Fire Ins. Co., 7 Wend, 34. The North River Ins. Co. vs. Lawrence, 3 Ib. 482. These cases decide, that to condemn contracts as invalid, it is not necessary to show that they are prohibited in terms, provided that in the enumeration of powers in reference to the subject of contracts, other descriptions of contract are mentioned. And they further decide, that it is competent to a party who has received money under a contract to deny its validity.

It has been urged, that the parties are estopped by their consent; but the doctrine of estoppel [**20]  does not apply when the public is concerned as is always the case, when the question is, whether a corporate franchise has been improperly exercised or not.

Even the assignee of a policy of insurance issued by a corporation without authority, cannot recover upon it, though he may have taken it without notice of the defect of power.

3. But suppose the conversion was a legal exercise of power, still the relation of debtor and creditor exists, and in the distribution of the assets of the institution no discrimination can be made between these creditors and any other class. The act of conversion did not make these deposites capital, and produced no other change in them, than to deprive the proprietors of the privilege of withdrawing their money at pleasure; and this was further provided for in a by-law, which would not have been the case if they were regarded as mere stockholders, because as such, the right to withdraw their money never exists. The only effect of the change, was to convert temporary into permanent deposites.

The supplement of 1833, was not accepted in the manner pointed out by the law. It was accepted within less than a month from the time of its passage,  [**21]  when not less than three months were required to be given. But if it was duly accepted, it does not change the character of the stock, and make it capital if it was not so before. It does not create or profess to create stockholders, who were not so before. It proceeds upon the assumption that the stock was properly created, but does not make valid that which was invalid at the time of the enactment.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*106]  STEPHEN, Judge, delivered the opinion of the court.
In deciding upon the question presented by the appeal to this court for adjudication, we do not deem it necessary to form or express an opinion relative to the power of the corporation under its charter to make the conversion of the appellee's deposites into stock, because we think that the decision of the court below awarding the injunction is unsustainable upon other grounds, and is in conflict with the soundest principles of equity jurisprudence. An application to a court of Chancery in a case like this, for the exercise of its prohibiting powers, or restrictive energies, must come recommended by the dictates of [**22]  conscience and be sanctioned by the clearest principles of justice. We are told by Mr. Maddox, in his treatise on the principles and practice of the court of Chancery, in 1 vol. 104, that an injunction is a prohibitory writ, specially prayed for by a bill in which the plaintiff's title is set forth, restraining a person from committing or doing an act, (other than criminal acts) which appears to be against equity or conscience. This being the character of the writ and the grounds upon which it ordinarily issues, it becomes necessary to inquire, whether the granting of it in this case was calculated to subserve the purposes of justice, and to prevent the commission or doing of an act against the principles of equity and conscience. We think that an attentive examination of the prominent features and circumstances of this case, will leave but little doubt as to the conclusion proper to be drawn as the result of such an inquiry. So far from the complainant having a right to the relief which he asked at the hands of the court of Chancery, we think that there is not any ground of equity in his case, and that his conscience is bound by an equitable estoppel, if not from questioning [**23]  the right of the corporation to make the conversion of his weekly deposites into capital stock, as a fund for the payment of its debts, at least it is so bound 

 [*107]  from making any attempt, to shield the fund so created from a liability to the payment of debts contracted with the institution upon the faith of its responsibility; and more especially as it clearly appears, his interest has been essentially promoted in the shape of dividends by the credit attracted to the institution, in consequence of such conversion. It would not certainly comport with the principles of equity and fair dealing, to permit the appellee to hold out false colours to the world, and by attracting the public confidence to the institution, to realize to himself large profits in the form of dividends on his stock, pledged as a security to the creditors of the corporation, and then to call in aid the powers of a court of equity to protect his interest in said stock from a liability, to which he had voluntarily subjected it, and by which liability he and his associates had been essentially benefitted. We say voluntarily subjected it, because the allegations of the bill to the contrary, are in this respect [**24]  flatly and pointedly contradicted by the answer. It must be borne in mind, that the order for an injunction from which this appeal has been taken, was granted by the Chancellor, not upon the case alone as made by the bill, but upon the bill and answer as well of the corporation or body politic under its corporate seal, as of the president and directors in their private and individual capacities under oath. If therefore the injunction is to be sustained, it must be upon the case as made by the bill and answer, and not by the bill alone. The object of the injunction appears to have been, and its effect and operation, are to prevent the officers of the corporation from paying the special depositors, or receiving their certificates of deposites in payment of debts due to the institution. How far it is warranted by the principles of equity and conscience in such its operation upon their rights and interest, it is the duty of this court now to examine and declare, and we think that in a court of conscience at least, but little doubt can be entertained upon the subject. It is an unyielding and inflexible principle of the court of Chancery, that he who seeks equity ought to be prepared to [**25]  do equity. Before therefore, the 

 [*108]  complainant can enlist the countenance of a court of equity in his favour, he must be prepared to render to these depositors, that full measure of justice which the principles of equity and conscience demand at his hand. Does his standing before this court, and the relief which he prays in his bill exhibit him in that character and attitude? We think it does not, and that the injunction which issued in this case ought not to have been granted. Numerous cases analogous in point of principle to the one now before this court, may be extracted from the books of equity decisions. They are all decided upon the ground of fraud and imposition, and are intended to uphold and enforce the principles of good faith and fair dealing in the transactions and intercourse of man with man. A striking and impressive illustration of this doctrine of the court of equity upon such subjects, may be found in 2 Atk. 72, where Lord Hardwick, that great luminary of the court of Chancery says, there are several instances where a man has suffered another to go on with building upon his ground, and not set up a right till afterwards, when he was all [**26]  the time conusant of his rights, and the person building had no notice of the other's rights, from which the court would oblige the owner of the ground to permit the person building to enjoy it quietly and without disturbance. Speaking of the same rule of equity, Chancellor Kent, in 6 Johns. Ch. 168, says, where one having title acquiesces knowingly and freely in the disposition of his property for a valuable consideration by a person pretending to title, and having colour of title he shall be bound by that disposition of the property, and especially if he encouraged the parties to deal with each other in such sale and purchase. It is deemed an act of fraud for a party conusant all the time of his own right to suffer another party ignorant of that right to go on under that ignorance, and purchase the property or expend money in making improvements upon it.
In 1 Johns. Ch. 354, Chancellor Kent, speaking upon the same subject says, there is no principle better established in this court, nor one founded on more solid considerations 

 [*109]  of equity and public utility, than that which declares, that if one man knowingly, though he does it [**27]  passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such persons. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.
We think that the principle established by these decisions has a considerable bearing upon the merits of this case. The appellee after having consented that his deposites should be converted into stock, as a fund or security for the debts of the institution, and after having encouraged their special depositors to deal with the institution upon the faith of such responsibility, now endeavours to withdraw the fund from the pledge and liability to which he had voluntarily subjected it; and claims to stand in a court of equity upon an equal footing with them in the teeth of such, his solemn engagement to the contrary. We think in the language of the authority just referred to, that it would be an act of fraud and injustice in him; that his conscience is bound by an equitable estoppel. Whether the corporation had a right to make the conversion against his will [**28]  and consent, under the powers derived from their charter, it is not necessary now to decide; nor do the merits of this controversy depend upon the solution of that question. The agreement to convert is to be received as a contract with each depositor, who trusted his money to the corporation upon the faith of it, that his stock should be liable to such depositor as a fund for the payment and satisfaction of his claim. To such purpose the stock of the appellee must be considered as voluntarily dedicated by him; and it would we think, be repugnant to the soundest principles of equity and justice to sanction the attempt which is now made, to wrest it from the destination and purpose for which it stands pledged by his own solemn engagement, and thereby inflict a most serious injury upon those whose only fault has been a misplaced confidence in the sincerity and inviolability 

 [*110]  of his promises and professions. To such an attempt, we think that a court of Chancery in the exercise of its equity powers ought to lend no assistance; and that such a suitor should be turned from its doors to seek redress any where, rather than in a court of conscience. Why is it that a court of equity [**29]  decrees the specific execution of a parol agreement on the ground of part performance, and notwithstanding the express provisions of the statute. It is on the ground of fraud in refusing to perform after performance by the other party, and to prevent the statute from being an engine of that fraud, which it was the object and policy of its enactment to prevent. Upon the whole we are clearly of opinion, that whether the corporation had the right to convert the weekly deposites into capital stock or not, still we think that the injunction under the circumstances of this case should not have been granted, and that the order granting the same ought to be reversed. We consider the fund arising from this conversion of the weekly deposites into stock by the depositors with their own consent, to be in the hands of the corporation as trustees for the special depositors as creditors of the institution, they having become such upon the faith of it, and that a court of equity ought not to interpose to withdraw it from the destination to which it has been thus solemnly pledged.
ORDER REVERSED.  

40 of 41 DOCUMENTS 

FARMERS' BANK OF DELAWARE vs. BEASTON, GARNISHEE OF THE ELKTON BANK OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 G. & J. 421; 1836 Md. LEXIS 34 

June, 1836, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Cecil county court.

On the 24th of September, 1830, the appellant issued an attachment on judgment, against the Elkton Bank of Maryland, rendered by the Cecil county court, at its April term, 1830. The writ was returnable to the following October term of the court, when the sheriff returned, that he had, in virtue thereof, attached $ 500 in the hands of the appellee Beaston, and summoned him as garnishee. He appeared by counsel, and at April term, 1834, the case was submitted to the county court upon the following statement of facts.

"It is agreed in this case, that in 1828, The United States instituted suit against the Elkton Bank in the Circuit Court of the United States and at December term, 1829, a verdict and judgment therein, was rendered in favour of the United States for $ 21,200; on which judgment a fi. fa, issued to April term, 1830, and was returned nulla bona. But it is admitted that, at that time, the Elkton Bank had a large landed estate which has been since sold, and applied to satisfy in part the said judgment; which landed estate, with all the other effects, or property belonging to the Bank, would not enable the Bank to pay its debts, and that [**2]  the same property and effects, are insufficient to pay the said debt due to the United States, and it is admitted that the Bank was then unable to pay its debts. An appeal was prosecuted, but no appeal bond given, and the judgment was affirmed in the Supreme Court at January term, 1832. At the April term, 1830, of the Circuit Court, a bill in equity was filed against the said Bank, at the suit of the United States, and Nathaniel Williams and John Glenn were appointed, by an order of the court, Receivers, with authority to take possession of the property of the said Bank, to dispose of the same, and to collect all the debts due it. That the Receivers gave bond on the 14th of June, 1830, and proceeded to execute their trust. At December session, 1829, application was made to the Legislature of Maryland, by the several persons who were the acting President and Directors of the Bank, for the act which passed at that session, chapter 170, (which with the other acts relating to the Bank make portions of this statement.) That a meeting of the stockholders convened on the 17th of May, 1830, which was the third Monday of said month, but without the publication of the notice, mentioned, and [**3]  required in the act incorporating the Bank, and its supplements; and at the same meeting a majority of the stockholders appointed two trustees, in conformity with the provisions of said act, who declined accepting, and no trustees have been since appointed, nor has there since been an annual or other meeting of the stockholders, or an election of the Directors; nor have there been any banking operations carried on by any person professing to be the corporation of the Elkton Bank since March, 1829. At September term, 1828, the Elkton Bank obtained a judgment against George Beaston for the sum which is attached in this suit, which, at the time of the issuing and service of this attachment had not been paid by Beaston. At April term, 1830, the Farmers' Bank of Delaware, obtained in Cecil county court a judgment against the Elkton Bank for $ 5,000 with interest from December, 1825, and before the appointment and bonding of the Receivers as aforesaid, that is, on the 24th September, 1830, issued this attachment, and attached in the hands of Beaston the sum of $ 500; and after the attachment was issued and served, and after the affirmance of the judgment of the Circuit court by the Supreme [**4]  court, the attachment was issued by the United States, upon which there was a judgment of condemnation at April term, 1832. This latter judgment was entered satisfied, by order of the District Attorney of the United States on the 15th of December, 1832, the amount for which it was rendered having been paid by Beaston. It was also admitted that up to the time of the decision in the Supreme court, the Receivers never had collected or received, or by any process of law, attempted to collect or recover the said debt attached in this case."

Upon this statement, the County court gave judgment for the defendant, and the plaintiff appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT REVERSED, and judgment for the appellant.  

HEADNOTES:

Money or effects in the hands of an assignee of a bankrupt, or the trustee of an insolvent debtor cannot be attached; not only because such property stands assigned by operation of law, but because the allowance of such attachments would utterly defeat the whole policy of the bankrupt or insolvent laws.

Money taken by a sheriff in execution, or money paid into court, cannot be attached.

The appointment and bonding of a receiver does not prevent the goods, &c. which he would be authorized to take into possession from being attached, for until taken by the receiver they are not subject to the summary jurisdiction of the court of chancery, nor within its protection.

The Elkton Bank was indebted to the Farmers' Bank of Delaware, on judgment rendered at April Term, 1830, and to the United States, on judgment rendered at December Term, 1829. B was indebted to the Elkton Bank, on judgment rendered in 1828. The Farmers' Bank attached B's debt in September 1830; and the United States after this attachment was issued and served, attached the same debt, and obtained judgment of condemnation at April Term, 1832, which B satisfied. The attachment of the Farmers' Bank, still pending, it was held, that neither the proceedings on the part of the United States,--the inability of the Elkton Bank to pay her debts, nor the appointment and bonding of receivers under the authority of the Circuit Court of the United States, prior to the suing out of the first attachment, (but which receivers never acted) constitutes any defence to such prior attachment, which operated as a lien on the debt attached.

It was the duty of B to have given the Farmers' Bank notice of the attachment by the United States, that she might have vindicated her rights, or brought the conflicting creditors into chancery, where these priorities might have been settled without prejudice to him; and not having even pleaded pendency of the prior attachment in bar to the second, he had no right to complain of the hardship of a second compulsory payment.

The decisions of the Supreme court of the United States in relation to the nature of the insolvency which secures to the United States a priority in the payment of debts, under the acts of congress, examined.

Even when the legislature of the State has the power to wind up the concerns of a corporation, the provisions of the law, calculated to apprise all interested, of the fundamental changes about to be produced in its government, should appear to have been complied with, to give legal efficacy to the acts done under it; otherwise the property of the corporation will not be divested, and its charter will continue in existence.  

COUNSEL:
GROOME for the appellant, cited

The acts of Congress of 1789, ch. 5, sec. 21; 1790, ch. 35, sec. 45; 1792, ch. 27, sec. 18; 1797, ch. 74, sec. 5. United States vs. Hooe, et al. 3 Cranch. 73. Thelusson et al. vs. Smith, 2 Wheat. Rep. 396. 1 Peters. 386, 439. Angel vs. Smith, 9 Ves. 336. 2 Kent. 249, &c. The State vs. The Bank of Maryland, 6 Gill and Johns. 205. Prince vs. Bartlett, 8 Cranch. 431. Ex part Key vs. Kernot, 2 Mad. 232, 3. Skip vs. Harwood, 3 Atk. 564. Case [**5]  No. 14, 2 Atk. 15. Sharp vs. Carter, 3 Pr. Wms. 379.

MARTIN for the Appellee, referred to

The Maryland law of 1829, ch. 170: act of Congress of 1818, ch. 78, sec. 8. 3 Story's L. U. S. 1670, 5 Peters. 641. United States vs. Howland & Allen, 4 Wheat. 108, 115. Robinson vs. Campbell, 3 Wheat. 212, 221, 2 Mad. 233, 243. State of Georgia vs. Brailsford et al. 3 Dallas. 3. United States vs. Vaughan, 3 Binney. 394. Fisher vs. Blight, 2 Cranch. 358. Harris vs. Dennie, 3 Peters. 301, Serg. on Atta. 147. Dimond vs. Billingslea, 2 Harr. and Gill, 264.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*424]  ARCHER, Judge, delivered the opinion of the court.
Exemption is claimed by the defendant from the operation of the attachment in this case.
Having had judgment of condemnation passed against him, for the amount he stood indebted to the Elkton Bank of 

 [*425]  Maryland, at the suit of the United States, and having paid the money under such judgment; he rests his defence upon an alleged priority, given by the acts of Congress to the government, and upon certain proceedings of the government, had in [**6]  the Circuit court of the United States for the district of Maryland, for the recovery of her claim against the Elkton Bank of Maryland.
The priority of the United States, is supposed to be founded, on the just construction of the act of Congress, making provision for the collection of her debts.
We have been referred in the argument to the laws of 1789, ch. 5, sec. 21--1790, ch. 53, sec. 45--1792, ch. 27, sec. 18--1797, ch. 74, sec. 5, and the collection law to be found in the third volume of the Laws of the United States, ch. 128, sec. 65. Interpretations by various decisions of the Supreme court of the United States, and of the Circuit courts, have been given to these acts of Congress, which leave no doubt as to their construction. It will therefore be only necessary to refer to them.
The two first acts above cited, had reference to bonds given for duties; and the third act above referred to, made provision in relation to the securities in such bonds. These acts gave a preference to the United States, in all cases of insolvency, or where any estate in the hands of executors, or administrators shall be insufficient to pay all the debts of the deceased;  [**7]  and it was declared, that the case of insolvency referred to, should be deemed to extend to all cases, in which a debtor, not having sufficient property to pay all his debts, should have made a voluntary assignment thereof, for the benefit of his creditors, or in which the estate, and effects, of an absconding, concealed, or absent debtor, shall have been attached by process of law; or to cases in which an act of legal bankruptcy, shall have been committed. And by the two subsequent laws the same provision was made, securing the priority of the United States, and applying them to all other debts due the United States. In the year 1805, the Supreme court were first called upon, to put a 

 [*426]  construction upon these laws; and it was adjudged in 3 Cranch 73, that the United States would gain no priority, in case of a partial bona fide transfer of his property, by the debtor, but could only obtain it, by such a general divestment of property, as would in fact be equivalent to insolvency, in its technical sense. In 1810, the same court decided, that the term 'insolvency,' as used in the first acts, and 'bankruptcy,' as used in the latter acts, are [**8]  synonymous terms. That priority must be confined to the cases of insolvency specified in the act, and that insolvency must be understood to mean a legal, and known insolvency, manifested by some notorious act of the debtor pursuant to law; not in a vague allegation, which in adjusting conflicting claims of the United States, and individuals, against debtors, it would be difficult to ascertain. 8 Cranch 431.
The same construction has been maintained in 2 Wheat. 396, and 1 Peters 386. And in a very recent case, Mr. Justice Thompson says, the act looks to a legal insolvency, where the property is taken up by the law for distribution among the creditors of the debtor. There is no difficulty in the construction of the statute, until we arrive at the last phrase, 'legal bankruptcy.' What is legal bankruptcy?
In 1797, when the act of Congress was passed, the United States had no bankrupt law. The words in this connection seem to have reference to the previous cases put in the section, and to point out some legal insolvency, or some mode of proceeding, by which the property of the debtor is taken out of his hands, and to be distributed by others,  [**9]  1 Paine's C. C. Rep. 629. Such being the construction of the acts of Congress, giving the Government a preference, we proceed to inquire whether the Elkton Bank, was in such a situation as to impart to the United States this preference.
The above decisions demonstrate, that the inability of the Elkton Bank to pay her debts, as admitted in the statement, could not per se, give to the United States the preference contended for. It must in the language of the authorities be, a known, and legal insolvency, the former of which is 

 [*427]  not admitted, and the latter could not be predicated of such a condition.
Does the act of 1829, ch. 170, with the proceedings consequent thereon, give rise to the priority contended for? This act provides for the election at the next annual meeting of the stockholders, held in pursuance of their charter, of two trustees, to settle all the outstanding debts, and credits of the bank; and further provided, that they should be elected in the same manner as the president and directors have been theretofore elected.
By referring to the charter of the bank it will be found, that one of the fundamental laws required the president [**10]  and directors to give one months' notice in the most public places in the county, and in some public print in the City of Baltimore, of the time and place of holding the election of directors annually; and it was furthermore by a supplement to the said charter required, that the election for directors should take place on the fourth Monday of May.
If it were conceded to the Legislature that they possessed power, to wind up the concerns of this particular institution by such an act, it must be admitted, that the legal provisions of the act, calculated to apprise all interested of the fundamental changes about to be operated in its government, that they might have an opportunity of protecting their interests by their presence, should have been complied with, in order to give legal efficacy to the acts done under it.
So far however from this, we are informed by the statement, that no notice was given, and that two persons were elected by a majority of the stockholders, on a different day from the day of the annual election of directors, as the trustees, who never accepted. So that the law was in truth, never executed; but the proceedings had under it, were undoubtedly inoperative [**11]  and void, and could therefore not in any manner have operated as a general divestment of property, within the contemplation of the act of Congress, as upon this ground to have given the United States a preference. But, on the contrary, the charter still thereafter continued 

 [*428]  to exist, and its affairs were, or ought to have been rightfully managed, and controlled by its then directors, who would continue in office for its government, and the exercise of its corporate functions, until such election should take place.
Although no priority may exist on the part of the United States, it has been argued that the appointment of receivers, by the Circuit court of the United States, to take charge of the property and effects of the Elkton Bank of Maryland, placed the debt due from the defendant, so under the control of that court as a court of equity, that it could be reached legally by no process of execution or attachment. It is true that money, or effects in the hands of the assignee of the bankrupt, or the trustee of an insolvent debtor, cannot be attached, not only because such property stands assigned by operation of law, but because the allowance of such [**12]  attachments would utterly defeat, the whole policy of the bankrupt, or insolvent laws. Nor can money taken by a sheriff in execution, or money paid into court--Serg. on attach. 89. But we apprehend that the appointment, and bonding of receivers, does not work such disability. The property by the order, is not taken under the protection of the court, and until taken in charge by the receivers, its summary jurisdiction could not be interposed to punish such as might cover it, or portions of it, by execution, or attachment. The period when it might, or ought legally to be considered, as under the mantle of legal protection, should be the time when a court of chancery, would interpose by attachment, for disturbing or interfering with the possession of the receiver.
Innocent third persons might be grievously affected by extending this doctrine further. It has been argued, and we think with much force, that there is, and ought to be, an analogy in this respect, between the law applicable to receivers, and sequestrators.
As regards the latter, the court of King's Bench have decided, that where a sequestration is awarded to collect money to pay a demand in equity, if it is not executed;  [**13]  

 [*429]  that is, if the sequestrators do not take possession, and a judgment creditor take out execution, notwithstanding the sequestration awarded, there may be a levy under the execution. 9 Ves. 335. So here, the receivers never obtained possession of the credits of the Elkton Bank of Maryland; its books, and papers, or its evidences of debt. On the contrary, so far as we are enabled to collect the fact in this respect from the record, they were held adversely; the Circuit court of the United States giving their aid and assistance to the receivers to enable them to obtain the possession, with what effect we know not, except that we are left to infer from the fact of the attachment subsequently issued against the defendant by the United States, that they never did obtain the possession. We are not informed by the record that the receivers ever took any steps whatever, to assume control over the debt which the defendant owed to the Elkton Bank. On the contrary, they take out an attachment in the name of the United States, and serve it on the defendant as garnishee, long after the attachment issued, and served by the plaintiffs in this case,  [**14]  and indeed, the statement admits, that they never attempted to exercise a control over this debt.
Lastly, it is urged, that the judgment of condemnation obtained against Beaston by the United States, should operate as a bar, against the recovery of the plaintiff in this case.
It is undoubtedly a hardship on the defendant to be compelled twice to pay the same debt; but it must be recollected, that the plaintiff had a prior attachment, which operated as a lien, and it would be a still greater hardship, that such plaintiff should lose his lien thus legally acquired by the judgment of a court in a cause to which he was no party, and of which, we have no evidence, he had in any manner, any notice.
If the defendant failed to take the proper steps, in the predicament in which he was placed, to defend, and protect his interests, it is but fair that he should suffer the consequences. Had notice been given of this attachment by the 

 [*430]  United States, the plaintiff might have vindicated his rights, and had an opportunity of asserting his anterior lien, and of obtaining the decision of the appellate court, had it been necessary. Nor is it perceived why it would not have [**15]  been competent for the defendant in this conflict of claims against him, to have brought the conflicting parties into chancery, where the rights and priority of each might have been adjudicated without prejudice to him.
But least of all, would the defendant have been entitled to avail himself of the judgment of the United States recovered against him, since, from the examination of the record of that suit, it appears that his defence was taken solely upon the plea of nulla bona, a defence, which could certainly have been of no avail, when it appeared by the answers filed to the interrogatories of the United States, that he was indebted to the Elkton Bank of Maryland; although in the answers he adverts to the attachment issued against him by the Farmers' Bank of Delaware, he has not pleaded such prior attachment as pending against him, whereby he could obtain the opinion of the court, in relation to its priority.
In every aspect, therefore, in which we can view the decision of the court below, we are brought to the conclusion, that it cannot be sustained.
JUDGMENT REVERSED, and judgment on the case stated, for the appellant.  

41 of 41 DOCUMENTS 

ELIZABETH LEE vs. STEPHEN LEE, AND ROBERT WELCH OF BEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 G. & J. 316; 1834 Md. LEXIS 28 

December, 1834, Decided 

PRIOR HISTORY:
 [**1]   CROSS APPEALS from the Orphans court of Anne Arundel county.

A petition was filed by Elizabeth Lee in the Orphans court of Anne Arundel county, on the 16th of September, 1834, representing that her husband Stephen Lee, died in the month of January, 1833, leaving a considerable real and personal estate, the whole of which he devised and bequeathed to her during her single life, subject to the payment of certain legacies out of the profits thereof.

That by a codicil to his will, he appointed the appellees, his executors, with a direction, that one of them (Lee) should not be allowed any commission as such, in consideration of the provision made for him by the will. The petitioner then complains of two allowances made to the executors in their final account. One for the sum of $ 961 43, and the other for 350 18, both retained by the executor Lee, as debts due him individually, from the estate of the said testator. She charges the same to be improper allowances, and prays that the accounts may be re-examined, and the objectionable credit stricken out.

The defendants by their answer, admit the death, and the disposition of the testator's estate, as alleged in the petition,  [**2]  and state that the credits objected to by the petitioner are for claims due the defendant Lee. The first for $ 961 43, for services rendered the testator in his life-time, in the superintendence of his farms, from August, 1826, to the period of his death, in January, 1833, at the rate of $ 150 per annum. The other for $ 350 18, being for services rendered and expenses incurred by the same party, in the cultivation and preservation of the crops made on the testator's farms in 1833, the year he died. The answer insisted that the services were fairly worth the money charged, and that the accounts have been passed by the court, and are still due. After some depositions had been taken, and filed by the parties, the Orphans court, on the 7th of October, 1834, passed their order rejecting the larger claim, for services rendered in the testator's life-time, upon the ground that the proof did not support it; but admitting the smaller claim, as a reasonable compensation for the management of the estate of the testator the year of his death.

The court also directed that the executor, Welch, be allowed a commission of eight per cent. on the inventory, and five per cent. on the amount of debts [**3]  due the estate, and collected by the executors; the proof being, as alleged by the court in their order, that the settlement of the estate had principally devolved on said Welch.

An account was stated by the register in conformity with this order; the exceptions to which, were afterwards, on the 25th of November, 1834, overruled, and the account ratified and passed.

The appellant, Elizabeth Lee, appealed from the allowance of the item of $ 350 18, to the executor, Stephen L. Lee, who appealed from the disallowance of his claim for $ 961 43; and both the said parties appealed from the allowance of the commissioners to the executor, Robert Welch of Ben.  

DISPOSITION:
Order of the Orphans court, so far as concerns the subject matter of this appeal, affirmed with costs. On the appeal of Elizabeth Lee, and Stephen L. Lee, against Robert Welsh of Ben, reversed with costs, and record remanded with directions.  

HEADNOTES:

An executor in finishing the growing crops of the deceased, is not bound to discharge the duties of an overseer. He may employ and pay out of the assets in his hands, as many overseers as are necessary for the completion and preservation of the crops. If with more advantage to the estate he acts in the capacity of an overseer himself, it is competent for the Orphans court to allow him a reasonable compensation for his services.

When a claim of an executor for compensation for services rendered the deceased's estate as overseer after the testator's death, is contested before payment, its passage by the Orphans court is no evidence of its correctness. It must then be supported by testimony, substantially sufficient to establish the facts before a jury.

No action will lie to recover compensation for services performed, where with a view to a voluntary legacy, the services were rendered by the plaintiff without any expectation of being paid the value thereof, or any promise of remuneration, expressed or implied.

When there were two joint executors, and the will as to one of them, declared that he should not be allowed any commission as executor, in consideration of the provision made for him in the will, the Orphans court cannot allow more than one half of the maximum rate of commission to the other executor. 

COUNSEL:
Pinkney, for Elizabeth Lee, contended,

1st. That by the true construction of the will, the executor, Stephen L. Lee, is not entitled to charge for any services rendered by him as executor.

2d. That he cannot charge for attending the crops growing at the time of the testator's [**4]  death. Act of 1798, ch. 101, sub-ch. 6, sec. 12.

3d. That Robert Welch of Ben., the other executor is only entitled to half the commission to which the executors would have been entitled in the absence of that clause in the will excluding the other executor. 2 Strange, 728.

4th. That the claim for $ 950 was properly rejected, the proof being, that the claimant rendered the alleged services with a view to satisfaction by legacy, or testamentary provision, and not to compensation in wages. 7 Ves. 261.

Alexander, for Welch, contended,

1st. That the Orphans court did right in allowing Welch a commission proportioned to the value of the services rendered by him, as one of the executors.

2d. That the propriety of the particular allowance made to this executor (being within the limits prescribed by law) is not a subject proper to be inquired into by this court. 1 Peters, 565. 4 Harr. and Johns. 12, 275. 1 Harr. and Gill. 84, 4 Gill and Johns. 460.

3d. That if the Orphans court erred in apportioning the commission to each executor, according to the degree of care and diligence bestowed by each in the execution of his trust, then a like error has been committed [**5]  in allowing to Stephen L. Lee, the other executor, the whole of the compensation for securing the crop; and the accounts ought to be corrected, by allowing to the appellee a moiety of the sum allowed for securing the crop, and five per cent. on the inventory.

Randall, for Stephen L. Lee, insisted,

1st. That the claim for services rendered the testator during his life-time, should have been allowed, as the fact of their rendition and value was proved, and an express contract to support the claim is not required. The act of 1798, ch. 101, sub-ch. 8, sec. 19, places the claims of executors and others upon the same footing. These services were rendered with the knowledge and consent of the testator, and an express contract for compensation was not necessary. 3 Johns. Rep. 199. They were not designed as a mere courtesy, but were rendered with a view to compensation, and will support an assumpsit. 2 Com. Con. 406. 1 Esp. Rep. 189. 4 Dallas, 111, 130. 1 Yates' Rep. 209. 13 Johns. Rep. 380. 4 Yates, 354. The legacy will not be regarded as a satisfaction of the debt, the leaning of the courts is against that, unless the intention is perfectly manifest. 1 Pr. Wms. 410. 3 Ves. 466.

2.  [**6]  The claim for services rendered subsequent to the death of the testator, in securing the crops, the proceeds of which contributed to swell the estate, is clearly admissible, independently of the action of the Orphans court, by whom the account has been examined and directed to be paid.

3. The allowance to Welch is erroneous, as it exceeds the one-half of the maximum, of the commission to which executors and administrators are entitled; it having been the design of the testator, in excluding Lee from commissions, that his half should fall into the residuum of the estate.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*319]  DORSEY, J. delivered the opinion of the court.
An agreement having been filed by the parties, that the record be so amended as to remove all objection as to the time and manner of taking the appeal; the only question before us is, did the Orphans court err in ordering their register to credit Stephen Lee, with his account of $ 350 18, exhibited 

 [*320]  in the record of the proceedings in this case. It has been argued on both sides, as if this account presented a claim for services [**7]  rendered in finishing and securing the growing crop on the lands of the testator at the time of his death. And it is resisted on the part of the appellant, on the ground that it was the duty of the executors to finish the crop begun by the deceased, and that the Orphans court are not authorized to allow them, or either of them any compensation for their personal services, otherwise than as they are compensated in their allowance of commission.
In this resistance, on the ground on which it has been made, we cannot agree with the appellant. An executor in finishing the crop of the deceased, is not bound to discharge the duties of an overseer. To impose on him such a duty, would be virtually, to exclude from that office most persons whose services it would be desirable to engage in that capacity. Suppose the deceased was the owner of many farms, and in different sections of the State, on all of which valuable crops were growing, which it was the interest of the estate that the executor should complete; is he bound, should it be practicable, to officiate as an overseer on every farm? Certainly not. No duties so unreasonable are imposed on him by the law. He may employ and pay out of the [**8]  assets in his hands as many overseers as are necessary for the completion and preservation of the crops. If with more advantage to the estate, he acts in the capacity of an overseer, himself, it is competent for the Orphans court to allow him a reasonable compensation for his services. But the present claim appears before us under circumstances which enlist for it no favorable consideration from the court. The executor according to an account filed with that now under examination, claims from his father's estate $ 961 43, for wages as overseer from the 28th of August, 1826, to 25th of January, 1833, at $ 150 per annum. But as overseer from his father's death, on the 26th of January, 1833, to the 31st of December, 1833, he charges $ 300. 

 [*321]  Thus claiming for his services for eleven months and five days, as much as he had ever done before for two years' discharge of the same duties. And these services it is contended, we ought to presume were rendered in finishing a crop begun before the 25th of January, 1833. Of what could the crop in the nature of things have consisted? Why of wheat and rye sown in the fall of 1832, and which an overseer should have had ready for market before [**9]  the 1st of October, 1833. The appellee, Lee, then calls on us to allow him for about eight months' service, or rather for three months, (for until the rye and wheat were fit for harvesting, no overseer was necessary,) three hundred dollars, when as appears by the proof, he could find no human being, who could say, that at any antecedent period of his life, his services for a year were worth more than $ 150. Ought we under such circumstances to be asked to give our sanction to such a claim? But an insuperable obstacle to our allowance of any claim for such services is, that it no where appears upon the record, that the testator left any growing crop. And if it were otherwise, no matter what may have been the growing crop, an insurmountable objection to any allowance presents itself, in the utter absence of any scintilla of proof to sustain it. The claim having been contested before payment, its correctness. It must be supported by testimony substantially sufficient for its establishment before a jury. On this occasion no evidence of any kind was offered. And an inspection of the account itself, and the answer of the appellee, conclusively demonstrate, that there exists no [**10]  such claim against the estate of the deceased. It was for services as overseer after the death of the testator.
So much of the decree of the Orphans court of the 7th of October, 1834, is reversed, as directs a credit of $ 350 10, to be allowed to the executors in their account.
Upon the appeal of Stephen L. Lee, the only question presented is, as to the propriety of the order of the Orphans court in rejecting the claim of Stephen L. Lee, for $ 961 43, for 

 [*322]  services rendered to his father in his life-time. The account has passed the Orphans court upon the affidavit of the claimant alone; but this adds nothing to its intrinsic merits or authenticity, when reviewed as it was by the Orphans court, upon the proceedings before it. It is a claim made by a son on the estate of a deceased father, "for working on, and superintending his farms" for six years, four months, and twenty-seven days, at $ 150 per annum; the full value of the son's service according to the testimony of all the witnesses. No credit of any nature or description is given on this account, and it is a fact admitted in the cause, that although the appellant charged for his services from [**11]  the 28th of August, 1826, down to his father's death, yet that he did not arrive at age until the 17th of November, 1827. It is in proof by a competent witness, that Stephen L. Lee, told him some years before his father's death, "that he got whatever money he wanted from Mr. Owens, his father's agent in Baltimore." These circumstances, when viewed in connection, cast a shade of suspicion over the claim, which should impel the court to regard it with the eye of scrutiny and suspicion. In the absence then of all proof that the father, ever by word or deed, promised or held forth an expectation to his son, that he would compensate him for his service, or that he intended to claim such compensation, are we at liberty to conclude, that there existed between them a contract for that purpose, either express or implied? When it is expressly proved by the son's own declarations, that he had made no contract with his father, but looked to his father's will, as the source whence his compensation was to flow. It is a case, which to the letter comes within the familiar principles stated by Ld. Kenyon in 1 Esp. 108, Le Sage vs. Consmaker and others, Executors, that [**12]  if the services were rendered by the plaintiff "without any view to a reward, but with a view to a legacy, that he could not set up any demand against the testator's estate." The authorities referred to by the appellant's counsel do not impugn the principle upon which 

 [*323]  the order of the Orphans court rests for its support. They were cases, where there either was an express promise of reward, or facts from which the promise might be implied. Here no such facts are to be found; and the case therefore comes completely within the well established principle of the law, that no action will lie to recover compensation for services preformed, where with a view to a voluntary legacy the services were rendered by the plaintiff without any expectation of being paid the value thereof, or any promise of remuneration, express or implied.
The order of the Orphans court, so far as concerns the subject matter of this appeal, is affirmed with costs.
On the appeal of Elizabeth Lee, and Stephen L. Lee, against Robert Welsh of Ben, the court decreed that so much of the order of the Orphans court as allowed to the said Welsh a commission of eight per cent. on the inventory,  [**13]  be reversed with costs, and the record was remanded to the Orphans court, with directions to have the account stated accordingly.