1 of 47 DOCUMENTS 

THE PRESIDENT, MANAGERS AND COMPANY OF THE WASHINGTON AND BALTIMORE TURNPIKE ROAD, vs. THE BALTIMORE AND OHIO RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 392; 1839 Md. LEXIS 15 

December, 1839, Decided 

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

This was a special action of trespass on the case, docketed by consent, between the appellants as plaintiffs, and the appellees as defendants.

The President, Managers and Company of the Washington and Baltimore Turnpike Road, by G. L. Dulany and William L. Marshall, their attorneys, complain, for that whereas the said plaintiffs were, by an act of General Assembly of Maryland, incorporated in the year of our Lord 1812, for making a turnpike road from the District of Columbia to the city of Baltimore, and did, in pursuance of the said act of incorporation, thereafter make said road. And whereas they were authorised by said act of incorporation, after having made as aforesaid the said road, and the same had been examined, approved and licensed according to the provisions of said act, to collect and receive from every person or persons using the said road by riding, driving or leading any horses, cattle, hogs, sheep, sulkey, chair, chaise, phaeton, coach, coachee, cart, wagon, wain, sleigh, sled, or other carriage of pleasure or burthen, to wit, for every score of sheep, hogs or cattle, one-fourth of a dollar; for every horse and rider, and [**2]  for every coach, stage, wagon, and every other carriage, under whatsoever name, drawn by one, two or more horses, one-fourth of a dollar for every ten miles, and so in proportion for every lesser distance. And whereas they did construct said road as aforesaid, and the same was examined, approved and licensed, as by the said act of incorporation is provided, to wit, on the first day of January, in the year eighteen hundred and fifteen, they were, on the day last aforesaid, and ever since have been, and now are, seized in their demesne, as of fee and right of the said road, for the uses herein before mentioned, with a right to receive tolls as aforesaid, for the said use of the same. Nevertheless the defendants aforesaid, well knowing the premises, and contriving to injure and disturb the said plaintiffs in the enjoyment of their said road and franchise, and to deprive them of the toll and profits accruing therefrom, heretofore, on the     day of in the year of our Lord eighteen hundred and thirty    , at the county aforesaid, did construct a public highway, called a rail road, from the aforesaid city of Baltimore to the aforesaid District of Columbia, near to the aforesaid turnpike [**3]  road of the said plaintiffs, and have established thereon cars, or carriages for the transportation of persons and merchandize, and carriages and beasts of various descriptions from the said city of Baltimore to the said District of Columbia, and to and from various places between the same, for a toll to be paid to them, the said defendants, for such transportation, and the said rail road and cars or carriages, have kept up from that time to the present, and during that time have transported and conveyed from the said city to the said District, and to and from various places between the same, being near to the aforesaid turnpike road, divers persons and carriages and beasts, and a great amount of merchandize, which, but for the establishment and use of said rail road, would have used, and before the establishment of said rail road were wont to use, and be conveyed and driven along the said turnpike of the said plaintiffs, and have received divers sums of money as toll therefor, to the great prejudice of the said plaintiffs, at the county aforesaid, and so that the said plaintiffs have, during the said time lost all tolls and profits arising from their said turnpike road. And the said [**4]  plaintiffs further say, that they being entitled as aforesaid, to the said turnpike road, and the said defendants well knowing the same, and designing to injure them the said plaintiffs, in the enjoyment of the same, and deprive them of the toll and profits accruing therefrom, heretofore, and whilst the plaintiffs were thus entitled, to wit, on the     day of     in the year eighteen hundred and thirty    , did open a public highway from the said city to the said District, near to the said turnpike road, and on the day and year aforesaid, and at the county aforesaid, permitted, and continually since, until the present time, have permitted the same to be used for hire or toll, and have received for the use of the same large sums of money, whereby the said plaintiffs have lost and been deprived of divers other profits which would have arisen to them from the use of their said road, and have been greatly injured in their possession thereof, and right thereto. And the said plaintiffs further complain, that on the     day of    , in the year eighteen hundred and    , and for a long time before, they were and ever since have been, and now are, seized in their demesne as [**5]  of fee, and right, of a certain other turnpike road extending from the city of Baltimore to the line of the District of Columbia, with the right to receive a certain toll from all persons using the same, to wit, the toll herein before mentioned: Yet the defendants well knowing the same, have opened, on the day and year aforesaid, at the county aforesaid, another road near to the said turnpike road of the said plaintiffs, at the commencement of the same at the said line of the District of Columbia, and at its termination at the city of Baltimore, and along its entire extent between the said places, and have conveyed divers persons and beasts, and merchandize along the same, in cars or carriages, for toll or hire, from the said city of Baltimore to the said line of the District of Columbia, and have received divers sums of money therefor, as toll or hire, with intent to injure and defraud the said plaintiffs, in the enjoyment of their said road and franchise, and to deprive them of the toll and profits accruing therefrom, and the same have kept open and used as aforesaid, from the day and year aforesaid until the present time, to the great prejudice of said plaintiffs, who have thereby [**6]  during all the aforesaid time, lost all toll and profit arising from their said turnpike road. And the said plaintiffs further complain, that they, on the     day of    , in the year eighteen hundred and    , and for a long time before were, and ever since have been, and now are, seized as last aforesaid of a certain other turnpike road which they were incorporated by the General Assembly of Maryland to make, from the city of Baltimore to the said line of the District of Columbia, for the use of persons travelling or conveying merchandize or beasts, or carriages of whatsoever description, from the said city of Baltimore to the city of Washington, in the said District of Columbia, with a right to receive a toll, to wit, the toll heretofore set forth, for the use of the same, which they made agreeable to the said act of incorporation; yet the defendants well knowing the same, and intending to injure the said plaintiffs in their enjoyment of the road and franchise, and to deprive them of the tolls and profits accruing from the same, did, on the day and year last aforesaid, open a certain other road, near to the said turnpike road of the plaintiffs, at the commencement and termination [**7]  of the same, at the said city of Baltimore, and said line of the District of Columbia, and along its whole extent, with intent that the same should be used by persons travelling or conveying merchandize, beasts or carriages of whatever description as aforesaid, from the said city of Baltimore to the said city of Washington, and have kept open the same and permitted it to be used from the aforesaid time to the present, by the persons aforesaid, and for the purposes aforesaid, and have conveyed in cars or carriages the persons or things aforesaid, along the said road, for toll or hire, and have received therefor large sums of money, to the great prejudice of the plaintiffs, to wit, on the day and year aforesaid, at the county aforesaid, whereby the said plaintiffs have, during all the said time, lost all toll or profit arising from their said turnpike road. Wherefore the said plaintiffs say that they are injured, and have sustained damage, &c.

The defendants pleaded not guilty, on which issue was joined.

The parties filed the following statement of facts and agreements, to wit:

"On the seventeenth day of December, in the year 1812, the Legislature of Maryland incorporated [**8]  the President, Managers and Company of the Washington and Baltimore Turnpike road, the present plaintiffs, for the purpose of making a turnpike road from the line of the District of Columbia to the city of Baltimore, as by reference to the act of December session 1812, chap. 78, will fully appear, which act and the supplements thereto, as printed in the published editions of the Laws of Maryland, it is agreed may be read as a part of this statement, and that it was the design of said turnpike road, by being united to another turnpike road leading from the line of the District of Columbia to the city of Washington, to complete a turnpike road communication between Baltimore and Washington, for the accommodation of the public in travelling and in the transportation of goods, and in the general uses of such roads, as well between the said cities of Baltimore and Washington, as along the line of said road. That under the said act of incorporation, the plaintiffs constructed a turnpike road as thereby authorised, and completed the same for the use therein required, and connected with the road leading from the line of the District of Columbia to the city of Washington, as intended as aforesaid;  [**9]  and it was and had been for a long time used in such connection for the purposes aforesaid; and the plaintiffs having complied with all the conditions precedent to their charter, were, and had long been, in the legal possession and exercise of all the franchises granted by the said act of incorporation, when, on the twenty-eighth day of February, in the year 1827, the Legislature of Maryland incorporated the Baltimore and Ohio rail road company, the defendants in this suit, for the purpose of constructing a rail road from the city of Baltimore to some suitable point on the Ohio river, with authority to make, or cause to be made, lateral rail roads in any direction whatever, in connection with said rail road from the city of Baltimore to the Ohio river.

"That on the 22nd day of February 1831, the legislature of Maryland passed an act, entitled, "an act to promote internal improvement by the construction of a rail road from Baltimore to the city of Washington, to which a supplement was passed on the 27th of February 1832, and a further supplement was passed on the 9th of March 1833;--that under the three last named acts, authority was given to the Baltimore and Ohio rail road company [**10]  to construct a rail road from such point or place on that part of the Baltimore and Ohio rail road, then constructed under the original charter of the 28th of February 1827, and in use, not exceeding eight miles from the city of Baltimore, as the company might deem most convenient to the line of the State of Maryland adjoining the District of Columbia in a direction towards the city of Washington; that at the second session of the 21st congress, an act was passed, entitled, &c. &c., authorising the said Baltimore and Ohio rail road company to extend into and within the District of Columbia, a lateral rail road, such as the company shall construct or cause to be constructed, in a direction towards the said District, in connexion with the rail road from the city of Baltimore to the Ohio river,--all which acts relating to the Baltimore and Ohio rail road company, it is hereby agreed may be read from the printed copies of the laws containing them. That, acting under the authority thus granted to said defendants, they proceeded to construct the rail road to the city of Washington, authorised by the acts of assembly aforesaid, which was completed by them, and the use of which commenced in [**11]  the year 1835, and has continued to the day of the issuing of the writ in this action, during all which time, from the completion of their said turnpike road as aforesaid, the plaintiffs were, and have continually been, in the possession and exercise as aforesaid of all their franchises granted them in their aforesaid act of incorporation and the supplement thereto. That the termini of the said rail road and turnpike road, and the respective locations of the same throughout their entire routes, are, as appear by a plat of the same, annexed to the seventh annual report of the Baltimore and Ohio rail road company, which plat is to be exhibited as part of this statement, and both were designed to form a communication between Washington city and Baltimore, and between Baltimore and the District of Columbia, to accommodate persons travelling between said places and along their respective routes, and for purposes of transportation. That the said rail road was also intended and is used as a rail road communication for passengers travelling from the west on the main stem of the Baltimore and Ohio rail road to the city of Washington, and for those travelling from Washington to the west, and [**12]  for purposes of transportation generally on the same route, and that the said turnpike road was also designed as a communication for passengers coming from the west by way of the city of Baltimore, or arriving at any point upon the said turnpike road between the cities of Baltimore and Washington, and also for those going from Washington by way of Baltimore to the west, and was used as such before the construction of said rail road. That the defendants have always, as authorised by their charter, charged a toll or price of transportation for the use of their said rail road between the said cities of Baltimore and Washington, and that since the said rail road has been in operation, and in consequence of its being offered to the public accommodation as aforesaid, and by reason of its use, much of the travel between the two cities aforesaid, and of the way travel, and of the transportation of merchandize and other articles which had been a source of profit to the plaintiffs, has been diverted from the turnpike road aforesaid to the said rail road, to the injury of the plaintiffs and to the advantage of the defendants. That by the authority of an act of the General Assembly of Maryland,  [**13]  passed at December session 1833, ch. 170, the location of the said turnpike road was changed at the crossing marked X on the plat, near the Sandy Spring road, and the assent of the turnpike road company was given thereto, according to the terms of the following agreement, dated May 13th, 1834, which is to be taken as a part of this statement: 'An agreement made and concluded this 13th day of May, in the year of our Lord 1834, between the President and Managers of the Washington and Baltimore Turnpike Road Company of the first part, and the Baltimore and Ohio Rail Road Company of the second part: Whereas, by an act of the General Assembly of Maryland, passed at December session, in the year 1833, entitled, a further additional supplement to an act entitled, an act to promote internal improvement by the construction of a rail road from Baltimore to the city of Washington and for other purposes, it is enacted that the President and Directors of the Baltimore and Ohio Rail Road Company be and they are hereby authorised, with the assent of the Washington and Baltimore turnpike road company being first had and obtained, to change the present location of the Washington and Baltimore turnpike [**14]  road at the places where the rail road between Baltimore and the city of Washington crosses the same, to such other and new location as the president and directors may deem best calculated to facilitate the passage of the rail road over the said turnpike road, also to obtain possession of the land included in such new locations, and to construct a stone or gravel turnpike thereon, and in the same manner that the President and Managers of the Washington and Baltimore turnpike road company might have done, had such new location been apart from the original location of said turnpike road; and the said parts of the said turnpike road, when so constructed on the new locations to be made as aforesaid, and when the construction thereof is approved by the President and Managers of the said Washington and Baltimore turnpike road company, shall be taken and used as a part of the said Washington and Baltimore turnpike road; the said approval to be given under the seal of said corporation and to be recorded in the land records of the county within which the changes of location shall be made: and whereas, by a memorandum of an agreement heretofore made on behalf of the said two corporations, in [**15]  anticipation of the powers necessary to perfect the same being granted by the said General Assembly, as by the act aforesaid it was stipulated, that for and in consideration of the sum of ten thousand dollars, to be paid to the said president and managers of the said turnpike road company, the said rail road company should have the privilege of so changing the location or grade of the said turnpike road as to cause it to pass the said rail road at the same level with the said rail road at the places of crossing, it being distinctly understood that the said president and managers of the said turnpike road company reserved all claims which they might or could have now or hereafter against the State of Maryland, the said rail road company, or any other persons or corporations, by reason of the injury to the travel, or by reason of the diversion thereof from the said turnpike road, caused by the construction and use of the said rail road, parallel thereto,--And whereas the said two corporations, being now clothed with ample powers for the purpose, and desirous of carrying the said memorandum of an agreement into effect according to its tenor:

"Now therefore, this agreement witnesseth,  [**16]  that the said President and Managers of the Washington and Baltimore turnpike road company, pursuant to the authority contained in the said act of assembly, and for and in consideration of the premises and of the sum of ten thousand dollars current money to them paid by the said Baltimore and Ohio rail road company, the receipt whereof is hereby acknowledged, hath given and granted, and by these presents do give and grant, to the said Baltimore and Ohio rail road company the right or privilege of so changing the location or grade of the said turnpike road, where the rail road passes or crosses over it in the lateral branch from the main stem to the city of Washington, as to cause it to pass the said rail road on the same level with the said rail road at the places of crossing. The said places of crossing are four in number:--1, in the village of Elk Ridge Landing,--2, near the 20th mile stone on the said turnpike road,--3, near the village of Vansville,--and 4, near the village of Bladensburg. The three plats accompanying this agreement as part thereof, represent the alterations in the grade and locations agreed upon between the parties hereto, for the three first of the said places [**17]  of crossing. In plat No. 1, the change takes place in the vertical grade, which, instead of remaining as the line marked with the letters A, C, L, E, B, is to be changed in the line A, G, C, D, E, B. In plat No. 2, the change takes place in the horizontal location, which, instead of remaining as the line from J to N, is to be changed into the line L, M, N, with the grade exhibited in the section P, Q. In plat No. 3, the changes take place in the vertical grade, which, instead of remaining as the line marked with the letters E, A, L, D, F, is to be changed to the line E, A, B, C, D, F, the crossing at the village of Bladensburg will be at the present level of the turnpike road. The expense of such changes in the grade or location of the said turnpike road, to be borne by the said rail road company, the said rail road company to commence forthwith or at its pleasure, or to continue if already commenced, the construction of the said rail road and altering the location and grade of the said turnpike road at the places aforesaid, without hindrance or interruption on the part of the said turnpike road company,--and it is declared to be the meaning and intention of the parties to these presents,  [**18]  and it is hereby so expressly declared, that nothing herein contained, or that is contained in the memorandum herein referred to, shall operate as a bar to any claim which the turnpike road company aforesaid may or can have now or hereafter, against the State of Maryland, the said rail road company, or any other persons or corporations, by reason of the injury to the travel on, or by reason of the diversion thereof from, the said turnpike road, caused by the construction and use of the said rail road parallel thereto. It is further agreed and understood, that the said rail road company in carrying on the work of construction and alteration aforesaid at the crossing places aforesaid, shall not cause injury or interruption to travel on said turnpike road."

Upon the aforegoing statement of facts it is contended that the said plaintiffs have a right to recover, because of the injury sustained by them by the illegal diversion of their travel and transportation from the said turnpike road as aforesaid upon the railway of the defendants.

If the court shall be of that opinion, then they will render a judgment on the case stated for plaintiff--if otherwise, for defendant--either party [**19]  to have the same right to appeal from the judgment to be rendered, as if the same was rendered on bills of exceptions. It is agreed that the court shall render judgment pro forma for defendants, the right of appeal being reserved as above. It is further agreed, that if the judgment be reversed in the Court of Appeals, a procedendo be issued to the county court.

The county court rendered a pro forma judgment for the appellees, and the appellants brought this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The Legislature of Maryland in 1812 chartered a company for the construction of a turnpike road from the line of the District of Columbia to the city of Baltimore, for the transportation of travellers and goods from place to place, and along the line thereof, and with power to charge tolls. After the plaintiffs under this act of incorporation had constructed their road, and were in the full exercise and enjoyment of all their franchises, the Legislature, in 1827, incorporated the defendants, with authority to make a rail road, having the same termini, and occupying the same line of travel.

The defendants, under the power conferred upon them by this charter, made and completed their rail road, and opened it for public use in the year 1835, charging as authorised by law, tolls for transporting persons and commodities upon their road, to their profit and advantage, and to the prejudice of the defendants, by diverting much of the trade and travel from their turnpike.

For this injury the plaintiffs in 1839 instituted against the Rail Road Company a special action of trespass on the case. The county court decided the case against the plaintiffs pro forma; which upon appeal was affirmed by the Court of Appeals.  

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

OPINION:

 [*402]  MARSHALL and DULANY for the appellants contended--
1st. That the construction of their road, as prescribed by their charter, for the accommodation of the travel between Baltimore and Washington, and all intermediate points, confers upon them a right to take toll for the use of their road.
2nd. That this right to take toll arises out of the franchise communicated by their charter, which is in its nature exclusive, and not confined to the limits of their road, but extending on each side of it, so as to prevent injurious competition by the erection of any other rival road,  [**20]  having the same termini, and being designed to accommodate the same travel.
3rd. That the charter by which this franchise was granted to the appellants, is a contract, to be interpreted, although the State is a party to it, by the same rules as are applicable to the construction of contracts generally; that the franchise which it confers is property, and that the charter granted to the appellees to construct their road within the limits of the said franchise of the appellants, without proper compensation to them, was a violation of their vested rights, and void, not only 

 [*403]  as against the constitution of Maryland, and those fundamental principles which presume the private rights of property inviolable, but also as against the constitution of the United States, as it directly impaired the implied obligation of the State of Maryland, arising out of the charter to the appellants, that she would do nothing to prejudice her grant to them.
4th. That the right to subscribe to the capital stock of the rail road, conferred upon the appellants by the 4th sec. of the act of 1830, ch. 158, is not such a compensation as they are bound to receive as an equivalent for the violation [**21]  of their said franchise;--they were entitled to a pecuniary compensation, and to have the amount ascertained in the due course of law by the verdict of a jury. The violation of the appellants' franchise was a legislative act, and the award of compensation a judicial one, and it is not competent, by the constitution of Maryland, for the same power that inflicts the injury, to bestow the recompense.
LATROBE and R. JOHNSON for the appellees, insisted--
1st. That the terms used in the plaintiffs' charter, which is the law of their existence, do not in their plain and natural meaning, either restrict the legislature in the exercise of the eminent domain of the State, or vest in the plaintiffs the exclusive right which they claim.
2nd. That these terms have no peculiar, legal, or technical meaning, as is alleged by the plaintiffs, which give them such an effect and operation.
3rd. That the charter of the plaintiffs is a grant from the State to the private corporation created by it, which must speak for itself and be interpreted by its own terms, and that nothing can pass under it by implication.
4th. That the State having in the first exercise of its eminent domain authorised the [**22]  construction of the defendants' rail road, any diversion of the travel from the turnpike to the rail road, diminishing the tolls of the plaintiffs, is damnum absque injuria, for which no action will lie.
5th. That applying these principles to the case at bar, it is 

 [*404]  contended, finally, that the plaintiffs' franchise of toll was limited to the road itself, and the travel thereupon; and that while no impediment is put in the way of the actual use of said road, or taking toll from such persons as use the same, no injury is done by the defendants to the franchise of the plaintiffs, for which the law affords a remedy.
The following acts of assembly were referred to in the argument and read by agreement.
1812, ch. 78; 1827, ch. 170; 1828, ch. 139; 1826, ch. 123; 1830, ch. 158; 1831, ch. 330; 1832, ch. 175.
JUDGMENT AFFIRMED BY THE COURT.  

2 of 47 DOCUMENTS 

BLAND AND WOOLFOLK vs. NEGRO BEVERLY DOWLING.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 19; 1837 Md. LEXIS 12 

June, 1837, Decided 

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

On the 31st of October, 1835, the appellee filed his petition for freedom, setting forth, in general terms, his right thereto, which was denied by the plea of the appellants, and issue thereupon joined.

1st EXCEPTION.--At the trial, the petitioner proved, that some time prior to the 7th of August, 1833, Sophia Bland, one of the appellants, being the legal owner of the petitioner as her slave, who had been hired to some person in Baltimore, entered into an agreement with the said slave, that he should be set free, on the payment to her of the sum of $ 200; in and from which period, until he was arrested in October, 1835, as a slave, he went at large and acted as a free man, by keeping an oyster house, and boot-black shop, and otherwise acting as his own master. He further proved, that on the 17th day of August, 1833, he paid to her, in part performance of said agreement, the sum of $ 100--on the 25th of October, 1834, the further sum of $ 23--and, on the 1st of June, 1835, the further sum of $ 50, for which he obtained receipts, expressed to be on account of his freedom. That shortly after the last payment, the petitioner left Baltimore,  [**2]  and proceeded to New York, where he was a waiter on board a steamboat, on the North river, until the month of October, 1835, when he returned to Baltimore, and paid over to Jonathan Pinkney, Esq. through whose hands the other payments were made, the sum of $ 27, the balance of the $ 200 which he was to pay for his freedom, which sum was tendered by Mr. Pinkney to a Mr. Law, the agent of Sophia Bland, but refused to be received as such balance. That after the payment of said $ 27 by the petitioner to Mr. Pinkney, and the tender of that sum by the latter, as the balance due under said agreement, the petitioner was arrested in Baltimore as a runaway slave, and soon thereafter sold to Austin Woolfolk, a citizen of this state, resident in Baltimore.

The petitioner then prayed the opinion and direction of the court to the jury, that if the jury shall be of opinion, from the testimony, that the petitioner had his owner's consent to go at large, to make up the price he was to pay for his freedom, and actually became a resident of another state under that permission, he cannot be imported into this state as a slave, and is entitled to his freedom; and that his voluntary return into this [**3]  state, in October last, did not entitle his former owner to claim and hold him as a slave, but that such return, coupled with a resumption of property by his owner, was, in law, an importation of him from another state. Which direction the court (Brice, Ch. J. and Nisbet and Worthington, A. J's,) gave. The defendants excepted.

2d EXCEPTION.--Upon the preceding evidence, by agreement made a part of this exception, the defendants prayed the opinion and direction of the court to the jury, that even if they should believe the facts given in evidence by the petitioner to be true, that they must find a verdict for the defendants.

1st. Because there is no evidence that said Sophia Bland ever gave her assent to the petitioner to depart from the state of Maryland.

2d. Because there is no evidence that she ever gave her consent to the petitioner to reside out of the state of Maryland, and to reside elsewhere.

3d. Because there is no evidence from which such assent can be inferred.

4th. Because under the evidence the petitioner became a runaway slave, by leaving the state of Maryland, without the permission of his mistress, and that being a runaway slave, she had a right [**4]  to have him apprehended, and to bring him back to, and sell him in the state of Maryland.

5th. Because a slave cannot acquire a residence without the consent of his owner, and because there is no evidence to show that the petitioner ever acquired a residence out of the state of Maryland, with the consent of his mistress.

6th. Because the return of the petitioner to the state of Maryland, was not an importation into this state by his mistress, contrary to the provisions of the acts of assembly in such cases made and provided.

The court refused the above, and instructed the jury as follows: "That if they should be of opinion from the nature of the agreement between the mistress and the petitioners, and the other testimony in the cause, that she consented to his going at large, and acting as a free man, to earn what he was to pay as the price of his freedom, and that she did not restrict him as to the place of his operations, but left that to his own discretion, she is bound by the use he made of that discretion in going to New York, or any other place, where he could soonest accomplish the object in view, the fulfilment of his agreement; and therefore may be said, to have [**5]  consented to his emigration to New York, as it was for her benefit, as well as his. And further, that if the jury shall be of opinion, that under the construction of said agreement, her consent was given to his emigration as aforesaid, she could not claim him again, on his return, as a slave, either for sale, or to reside in this state; and, that if the above facts are found by the jury, the petitioner could not be afterwards treated as a runaway, unless, in the interval, his mistress had regained possession of him, and he had left her service without her consent, and against her will." The defendants excepted.

3d EXCEPTION.--In addition to the evidence on the first bill of exceptions, the defendant proved to the jury by James O. Law, that in the years 1833 and 1834, he was the agent of Sophia Bland, in the management and superintendence of her negroes in the city of Baltimore, and that in the course of his agency he wrote to her three letters, bearing date the 26th October, 1833, 23d December, 1833, and 7th June, 1834, upon the subject; in some of which complaints are expressed with regard to the conduct of the petitioner. The counsel for the petitioner objected to the admissibility [**6]  of the letters, and the court having rejected them, the defendants excepted.

4th EXCEPTION.--The defendants then gave in evidence by the said Law, that he had been the agent for Sophia Bland for seven years, and received the wages of her negroes hired in Baltimore. That after the contract or agreement made by his mistress to set the petitioner free, on payment of $ 200, as before stated by him, he did not receive any more wages from him. He disapproved of the petitioner's keeping shop. That the petitioner afterwards, as he learnt from several persons, entered on board a steamboat plying between Baltimore and Frenchtown, and he frequently inquired for him without effect. He wanted to see him about this agreement he had made with his mistress, and to get what was due her. When the petitioner paid the $ 23 on the 25th of October, 1834, witness told him, he though his mistress was not satisfied with his conduct, and would not ratify the contract she had made to set him free, and he offered to pay witness interest for the delay of payment, but it was refused till witness heard from Miss Bland, whether she would consent to execute the agreement, as the petitioner had not complied on [**7]  his part to pay $ 100 in hand, and the same amount in six months thereafter. That his mistress never required that he should be arrested as a runaway, nor did the witness ever inquire after him, to have him arrested. That the petitioner, when he had got money in the hands of Mr. Pinkney, always called and told witness of it.

That said petitioner never had the consent of the witness, nor does he know that he had the consent of his mistress, to leave the state of Maryland.

The defendants further proved by Isaac Mayo, that on the 15th June, 1834, the defendant, Sophia Bland, gave him an authority in writing to act as he thought proper in regard to the petitioner, which he, the witness gave to a constable in Baltimore, with instructions to arrest petitioner, inquire what price could be had for him, and inform the witness of it. They then proved by the constable, that in execution of these orders he went in seach of the petitioner, whom he had known as a boot-black in Baltimore, but was informed he had gone to Washington, and said witness was never after able to find him. They also proved by another witness, that he was well acquainted with the petitioner, and Sophia Bland, the [**8]  defendant, that the former absented himself from Baltimore, after the agreement to purchase his freedom, and that his mistress repeatedly inquired for him, and requested witness to inquire for him, which he did, without success.

The petitioner then proved by a competent witness that prior to the agreement before mentioned, he had for several years hired the petitioner as a servant, and on one occasion had leave from Mr. Law, the agent of S. Bland, to carry him out of the state to New York, as a servant, and that after the agreement, the petitioner was frequently out of town, but on his return always called to see the witness and his family.

He also proved by Jonathan Pinkney, that the first time he heard of the agreement with the petitioner to purchase his freedom, was from his mistress, one of the defendants, on the 1st day of June, 1835, when he the witness paid her the $ 50, on account of said agreement, and in part thereof. He never heard said defendant say the petitioner had gone away without her consent, or that she considered said petitioner to be a runaway, nor did he ever hear it from any one else.

The defendants then, upon the whole evidence, prayed the court [**9]  to instruct the jury, that the petitioner was not entitled to a verdict, and that their finding must be for the defendants. The court refused to give the instruction, and the defendants excepted.

The verdict and judgment being for the petitioner, the defendants prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Slaves in this state cannot enter into valid contracts with their masters, nor can they appear as suitors in our courts of justice, legal or equitable.

The letters of an agent, written to his principal, touching the conduct of a negro, whom the principal, the owner, had agreed to set free, on the payment of a certain sum of money, rejected as inadmissible, being of no more efficacy than unsworn declarations.

If a negro slave, with the permission of his owner, takes up his residence in another state, and afterwards returns to this state, such owner cannot resume his property in him, either for the purpose of servitude within the state, or sale to a citizen of Maryland, even although the return of the negro originally, was against the owner's consent.

The using, or sale under such circumstances, would be equivalent to a sanction of his return, and an evasion of the act of 1786, ch. 67, prohibiting the importation of slaves. 

COUNSEL:
J. SCOTT and MAYER, for the appellants, contended:

1. That a contract between master and slave, has no validity either at law, or in equity. To constitute a good contract the parties must be free agents, but as the will of master is the will of the slave, the necessary independence, and freedom to make the contract, or not, does not exist. It is no answer to say, that the slave is competent to contract with the consent of his owner, with a third person, because such third person has no control over the slave, who for the purposes of the contract may be regarded as the agent of the master.

Manumission can only be effected by deed, or by last will and testament.

2. It is not denied, that if the petitioner had gone out of the state with the consent of his owner, and had returned voluntarily or compulsorily, and upon such return had been taken up by her,  [**10]  it would have been an importation under the act of assembly, but there is no proof whatever of such assent, and as such conduct would have resulted in a forfeiture of her property the presumptions are all the other way.

Looking to the consequences of assent, the court should require express proof, and not leave it to the jury upon slight or inconclusive circumstances. It has been decided that, a slave is not to be presumed to go at large with the consent of his owner, and the same principle would exclude the presumption that the owner of this slave consented to his going to New York.

3. The letters of the agent offered in the 3d exception were admissible. If the answers of the principal were required, they should have been called for by the other side, but at all events, the non-production of them should have been presented as the ground upon which the admissibility of those offered was resisted. Had that been done her answers might have been produced.

These letters of the agent were the best evidence of their contents, and parol evidence of their contents could not have been given. If that had been attempted, the letters themselves would have been demanded.

R.  [**11]  JOHNSON and WALSH, for the appellee.

The petitioner from August, 1833, to October, 1835, was permitted to go at large, and to act in all respects as a free man; and the question therefore is, whether the court was not right in putting it to the jury to say, whether his going to New York, was not with the consent of his owner, and this depends not simply upon the fact stated in the exception, but the inferences fairly deducible from them. There certainly is no evidence of dissent, nor should such dissent be presumed, because to go at large in this state would be unlawful, and subject the owner to a penalty. Burke vs. Negro Joe, 6 Gill and John. 143. The presumption then is, that she intended he should leave the state, as that would be lawful, and not remain here, which would be unlawful.

The second inquiry upon this exception is, whether the return of the petitioner to Maryland is not within the meaning of the act of 1796, ch. 67. The object of that law was to prevent the augmentation of our slave population, and a construction must be given it, which will best accomplish that object. The going out of the state mentioned in the first section, not only refers to those who go [**12]  out permanently, but to those who go to reside at all. There can be no doubt that, if the petitioner in this case had been sent back by his mistress, he would be entitled to his freedom, and the purpose of the law being, to prevent the return of such persons as slaves, his returning voluntarily can make no difference if after such return the owner resumes his property in him. It may moreover be fairly inferred from the nature of the contract, that he was authorized both to go and return. He was authorized to go to earn the money which he was to pay for his freedom, and to return, that he might make the payment.

Upon this exception they referred to acts of 1796, ch. 67--1797, ch. 15--1794, ch. 66--1832, ch. 40--1833, ch. 67. Sprigg vs. Negro Mary, 3 Har. and John. 491, 493. Baptiste vs. De Volunbrun, 5 Ib. 99. 4 Bac. Abr. (statute) 649. Act 1783, ch. 23--June session, 1752, ch. 1--Nov. 1790, ch. 9--1791, ch. 57. The evidence at all events tended to prove the assent of the mistress to his going, and his subsequent return, and if it had that tendency it was proper to leave it to the jury. Davis, et al vs. Barney, 2 Gill and John. 403.

2. But the petitioner is entitled to his [**13]  freedom upon the contract disclosed in the record. There is nothing in the various acts of assembly upon the subject which forbid the master from contracting with his slave. The slave may contract with a third person with the consent of his owner, and there can be no good reason why he may not contract with him, himself, as then his consent will be implied. The act of 1832, ch. 296, sec. 4, recognizes the power of the slave to contract with the assent of his owner.

It is said on the other side, that every contract of manumission is void, unless the terms of the law are complied with; but this notion is incompatible with the many laws curing the defective execution of deeds of manumission. If such deeds are void because of those defects, the legislature could not make them valid, and thus deprive the owner of his property. These laws have been passed, not to make but to carry into effect contracts defectively executed, and proceed upon the principle that the slave is competent to contract. Upon this point they cited. Hall vs. Mullin, 5 Har. and John. 193. The acts of 1715, ch. 44, sec. 11--1832, ch. 296, sec. 4--1831, ch. 281, sec. 5.

3. The letters of the agent, Mr. Law,  [**14]  to his principal, were clearly inadmissible. It does not appear in the first place that, they were received by her, and if they were, they constitute but parts of a correspondence, and should not be separated from the whole, but the entire correspondence should have gone to the jury.

Those letters furthermore, are the mere verbal unsworn declarations of the agent, and as such could not be evidence against the petitioner, when the very party who wrote them was upon the stand, giving evidence upon oath, upon the same subject.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*27]  ARCHER, Judge, delivered the opinion of the court.
Looking at the state of slavery as it exists in this state, and the relations between the slave and his master growing out of such condition, we cannot maintain the principle that a slave can enter into any binding contract with his master, or that he could appear as a suiter in any of our courts of justice, legal or equitable, to enforce any alleged contract. The acts of assembly cited by the counsel for the petitioner do not, we think, give any countenance to the idea. It is apparent [**15]  from the act of 1715, ch. 44, sec. 11, that anterior to the passage of that law, slaves had been encouraged by traders to purloin the goods of their masters and others, by receiving from them such goods, and turning such trade to their advantage.
It was to strike at this evil the law was passed. It did not recognize certainly any right existing in slaves to deal or barter, for the penalty inflicted on the trader shows directly the reverse, and concedes that the trade, barter, and commerce, was of goods that had been purloined, or conveyed away from some rightful owner other than the slave, there being in case of conviction a forfeiture of the goods to the true owner. The leave or license spoken of in this section, if it apply to slaves, gives to them no power to contract, but merely furnishes an exemption from punishment in the specified case; and might perhaps be considered a relinquishment to the receiver of the rights of the master in the goods so conveyed away, and constituted a very proper exception 

 [*28]  from the general provisions of the section--such a case not constituting one of the mischiefs intended, or requiring remedy.
The petitioner in this branch of the inquiry,  [**16]  can derive no support from the act of 1832, ch. 296, for although the word "agreement" is used, it is followed by expressions which we think indicate the sense of the legislature, that they did not mean to use the term contract, in its technical and legal sense. Else why should they have required a manumission, if the agreement had been treated by them as valid, and binding, and as giving freedom? Why should they not have given the same fruits as they would, when followed out by a manumission? Looking at the whole section together, we think the term "understanding" was used to qualify the term "agreement," or rather to show the meaning which they desired to be attached to that term.
The next question arising under the first bill of exceptions is, whether any evidence exists which should have enabled the court to put the question to the jury, whether the mistress had consented that, the petitioner should reside out of the state.
The agreement to set the petitioner free upon the payment of two hundred dollars is proved; and it is proved that from the 7th of August, 1833, till October, 1835, upwards of two years he went at large and acted as a free man. We think too,  [**17]  that the receipts furnish evidence that she knew he was going at large up, at all events, to the 1st day of June, 1835, when she signed the last receipt "on account."
Here then is evidence of an agreement to set him free, and here is evidence of a knowledge of the servant's going at large, and acting as a free man, which conduct on the part of the petitioner commences at the very time of the agreement.
Now supposing this agreement to be entered into, and this knowledge to exist, may not the jury legally draw the inference, that this going at large, and acting as a free man, was permitted to enable the petitioner to pay the money he 

 [*29]  had agreed to pay? And do not the receipts furnish evidence of her sanctioning during a long period this procedure on the part of the petitioner? There is clearly evidence both of knowledge on this subject, and of acquiescence--and if he should be found to have entered into this agreement--to pay a sum of money for his freedom, and to act as a free man; if in the exercise of this permission he should go abroad into another state, with views of more easily fulfilling his agreement, it is but the exercise of that discretion which every free [**18]  man has; and which, as it is not limited by any just inference from the testimony, the mistress must take the consequence of the exercise of such discretion. And the jury would be at liberty to infer from the facts a permission to go whithersoever he pleased, so that by so doing, he could the more readily and easily accomplish the fulfilment of the agreement.
We therefore concur with the court in the first exception.
These views lead to the decision of the second bill of exceptions in favour of the opinion of the court below.
The third bill of exceptions presents a question on the admissibility of evidence. The purpose for which the letters were offered is not stated, but we presume they were intended to shew, that either the agent in the line of his duty to his principal had been dissatisfied with the petitioner's going at large, or that his course as indicated by these letters was such as had been dictated by the mistress. These letters are not proven to have been received by her, nor are they shown to have been in her possession, but the bill of exceptions would leave us to infer that they were presented in court by the witness himself.
If offered for either of the above purposes,  [**19]  they were capable of proof by the witness, and should have been testified to by him. As the letters are produced they have no greater efficacy than unsworn declarations, and we think were properly rejected by the court.
The fourth bill of exceptions, although other evidence is incorporated in it, offered by the defendants, does not present 

 [*30]  the question in any light more favourable to them. Whatever dissatisfaction appears to be expressed in relation to the petitioner's course, seems to spring from his failure to comply with his contract; and even after the defendant is informed that the petitioner had gone to Washington. And a year after authority is given to an agent to do what he may think proper as to the petitioner, the defendant received from Mr. Pinkney fifty dollars on account, according to her receipt, and according to Mr. Pinkney's evidence, on account of said agreement, and in part thereof, thereby still recognizing the agreement as an existing one, and speaking to him at the time of the payment of having entered into such an agreement with the petitioner. We therefore concur with the court below in the fourth bill of exceptions.
On the subject of a resumption [**20]  of the rights of property over the petitioner after his return, and his seizure and sale amounting to an importation within the meaning of the act of 1796, ch. 67, a question involved both in the first, and fourth prayers we have made no comments, because the question was yielded by one of the counsel of the defendants. It certainly could not be successfully contended that, if a residence in another state was granted by permission of the owner, that rights of property could be resumed on his coming within the limits of the state, and that for the purposes of servitude within the state, or for sale to a citizen of Maryland. Even although the return had been originally against the consent of the owner, for by such using, or sale to a citizen his return was sanctioned, and if such a course of proceeding do not amount in law to an importation within the meaning of the act, its provisions would be liable to great evasion.
JUDGMENT AFFIRMED.  

3 of 47 DOCUMENTS 

OWINGS AND OTHERS vs. N. & C. WORTHINGTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 283; 1838 Md. LEXIS 29 

December, 1838, Decided 

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

The bill in this cause, was filed on the 20th March 1837, by North Worthington, alleging that in the month of January 1836, Caleb D. Owings and others, by virtue of the act of 1834, ch. 253, made their application to the commissioners of Baltimore county to obtain a right of way from their farm, through the lands of the complainant; that commissioners were appointed to lay out said private way, who discharged said duty, returned their proceedings, and a right of way was accordingly granted to said applicants; that an appeal was taken therefrom by complainant, and the grant of said way confirmed; that afterwards the said Caleb D. Owings and others commenced certain preparations for constructing a rail way on the ground laid off as a private road or way; that the said parties being warned to desist from such construction, declared they would proceed unless stopped by some legal authority; that the application under the act of 1834, was not for a rail way, and did not authorise it; that a supplement of said act, at May 1836, prohibits the making, on any such private road or way, of any rail road or rail way, puts an end to any doubt on that subject.  [**2]  The bill further alleges, that the said Caleb Owings and others have again commenced to work on said road, with a view to the constructing of a rail way; that they are now hewing timber and laying rails on said road, having previously graded a part of said road; they have also raised an embankment three or more feet in height, and crossing a private rail road on your orator's land, by which he is put to great inconvenience and trouble. The bill then proceeded to state other incidental disadvantages, which the complainants would suffer by the construction of the rail way, and prayed for a subpoena and an injunction to desist from its further construction on the said private way, &c.

With this bill was exhibited the proceedings before the commissioners of Baltimore county, and the appeal thereon confirmed by Baltimore County Court. The Chancellor (BLAND) thereon ordered an injunction.

The appellees answered this bill, and claimed a right to construct a rail way on the private way granted, as mentioned in the bill, from the defendant's stone quarry to the Patapsco Falls, the dividing line between Baltimore and Anne Arundel counties, and from thence to the Baltimore and Ohio [**3]  rail road, which was located in Anne Arundel county. The other parts of the answer necessary to be considered are sufficiently stated in the opinion of this court.

At March term 1837, the defendants filed a petition praying for an early day for a dissolution of the injunction issued in this cause, and that the complainants should give bond with security to the defendants, to indemnify them from the consequences of the injunction. This petition was dismissed; and from this order the petitioners appealed: afterwards an appeal was allowed by the Hon'ble STEVENSON ARCHER, one of the judges of the Court of Appeals, from the granting of the injunction in this cause, upon bond being filed--which being filed, the defendants appealed from the order granting the injunction and dismissing the petition aforesaid.

The act of 1834, ch. 253, was entitled an act to declare and ascertain the right of the citizens of this State to private roads and ways.

"Whereas, the citizens of this state ought to have a road or way from their farms and plantations, to places of public worship, to mills, market towns, public ferries, and court houses, and to the public highway, and while such benefit [**4]  should be extended to the citizens of this State, it is but just and proper that it should be granted with as little injury or damages to the lands through which such private roads or ways shall pass, as may be consistent with the convenience of the person or persons who may need such private road or way; therefore, to accomplish these objects,

"Sec. 1. Be it enacted by the General Assembly of Maryland, that the levy court or board of commissioners, as the case may be, of the several counties of this State, on application of any person or persons for a private road or way, shall appoint three discreet and sensible persons, not related to either of the parties, of the county, who shall act as commissioners to lay out such private road or way," &c.

"A supplement to the act, entitled, an act to declare and ascertain the rights of citizens of this State to private roads or ways.

"Be it enacted by the General Assembly of Maryland, that where any private road or way has been or shall be allowed to be laid out under the act to which this is a supplement, nothing in the said act contained shall be construed to authorise the making, upon such private road or way, of any rail [**5]  road or rail way." 

DISPOSITION:
AFFIRMED.  

HEADNOTES:

The power vested in the levy court or commissioners of counties, by act of 1834, ch. 253, is the delegation of a special authority, and proceedings under it must display the authority by which they are had, or be in conformity thereto, or they are coram non judice, and void.

The application for a right of way under this act, must set forth such a way as it authorises, and to enable the commissioners to exercise any jurisdiction over the subject, a case must be presented to them in which they are competent to grant all the relief designed by the act.

The commissioners of one county could not grant a right of way into another county.

The way to be granted could not pass over a public highway; it must terminate at a public highway; and where it terminates short of a public highway, for want of jurisdiction in the commissioners to grant the right, as where it reached the boundary of their county, it will not be sustained by individual grants of a way from that point to a public highway in an adjoining county.

An application to the Chancellor to appoint an early day for the hearing of a motion to dissolve an injunction, is to his discretion, and not the subject of an appeal.  

COUNSEL:
Dulany for the appellants contended, that the injunction in the above cause ought not to have been granted upon the facts set forth in the bill of the appellee.

The ground relied upon in the bill, and upon which the Chancellor must also have relied, to support the injunction, is, that the right granted to the Owings was for a private road or way over the lands of the appellee, and not for a rail road. The bill makes no objection to the grant of a private right of way, nor does it take any exception to the jurisdiction of Baltimore County Court, confirming to the Owings the road which had been located and awarded to them by the commissioners of Baltimore county. The whole complaint of the bill is, that a rail way was in the design of the parties, and was in the progress of construction, at the time when the bill was filed; and the question which it makes is, whether a private way, granted in pursuance of the provisions of the act of 1834, authorises the grantee to improve and render it better suited to the purposes of transportation, by constructing rails upon it.

The act authorises the grant of the way itself, without giving any other description [**6]  of it than that it shall not exceed sixteen feet in width, "clear of ditches." It does not say that it may be gravelled, or paved, or raised where the ground is low, by having earth thrown upon it, or trees or bushes taken from its route, or large stones removed from its bed, but all this is implied in the grant of the way itself, for the object is, that the farmer may pass with facility, and carry his produce or whatever he may have to sell, to a market. This object surely could never be attained, if, while the grant of the road should be made, the means of adapting the natural surface of the earth to the purposes of transportation should be denied. Of what use would the right of a road be to any one, who should be totally debarred the use of it, by natural impediments,--as trees, or large stones, or an uneven or marshy surface? The right to the road, and the profitable enjoyment of it, include a right to the use of all the means properly adapted to its improvement for the purposes of transportation. The legislature seems to have hinted at one means of improvement, when it says, that the road shall not exceed sixteen feet, clear of ditches; the earth taken from which would raise the [**7]  level of the bed of the road, while the ditches themselves would drain off the water from its surface and preserve it dry. The legislature do not enact that the owner of a private road shall have this right, but they refer to it as of course, and as incidental to the right of way, and as naturally and necessarily belonging to it. He who has a road adjudged to run over the grounds of another, is not bound to leave the surface of the road in the condition in which it was condemned to his use. He has, in the contemplation of the law, a power to improve it for the purposes of transportation. The law, however, does not direct any particular mode of improvement; this is never the subject of legislation, but is left to the judgment of the owners, to be exercised according to the nature of the ground and the character of the property to be carried over it. Why then may not rails be laid as an improvement of a private road, when the object of the owners, as stated in the bill in this case, is, to transport stone from his quarry, which could be carried in no other way.

Can it be said that the legislature, in passing the act of 1834, did not contemplate that rail ways would be constructed [**8]  on private roads, and that therefore they are illegal? My answer is, that it does not appear from the legislation of this State, that any particular mode of improvement of private ways ever came into their contemplation, either to be authorised or prohibited. They grant the right of way; they authorise the condemnation of the ground upon full compensation to the owner, and leave it to the person claiming the road to adopt such improvements as may best answer to facilitate transportation over it. But this right of improvement must be so used, like every other right, as not to be conducted in such manner, or carried to such an extent, as to injure the property of others. The bill in this case, it is true, asserts that the appellee is much injured, and put to great inconvenience, by the rail road running through his farm; it does not, however, distinctly aver, and could not with truth have averred, that the injury and inconvenience of which it complains, were increased by the laying of the rails upon the road. The answer of the appellants shews conclusively, that the injury to the appellee was lessened by the addition of the rails.

But it may be said that the act of 1835-6, ch. 362,  [**9]  has given a construction to the law of 1834, as indeed it does, in terms declaring, that the last mentioned act shall not be construed to authorise the making of a rail way upon any private road theretofore granted.

Now the law of 1836 was passed in June, some time after the judgment of the court granting the private road to the Owings, and after the road had been partly completed and rails constructed upon it, through the lands of the appellee.

If the words of the law of 1836 be considered as embracing and prohibiting the construction of rails upon the road of the Owings, has not the legislature assumed, in the passage of that act, a judicial power? Suppose it is conceded, that previous to the passage of that act, the Owings had not only a right to construct a rail road over the lands of Worthington, but had exercised this right, as in fact he did, and had nearly completed his rail way over the land of the appellee; now if the act of 1836 says, that the law of 1834 gave no such authority or right, is not this strictly and properly an exercise of judicial power, which is expressly denied to the legislature by the 6th article of the declaration of rights. But in the interpretation [**10]  of the law of 1834, the legislature and Baltimore county court are directly in opposition to each other;--the answer shews that the question of the right of Owings, under the act of 1834, to construct a rail way through the lands of the appellee, came before that court in the trial of Worthington's appeal from the order of the commissioners of Baltimore county, and was necessarily decided by the judgment pronounced by the court in that case. Now the law of 1834 makes such judgment final between the parties; just as if it had been determined by the highest tribunal in the State. It is true that nothing is said about a rail way in the petition of the Owings to the commissioners for a private road through the lands of the appellee; but the question, as to their right to lay rails on the road, came up upon the avowal of the parties at the trial, that it was their design to construct rails upon the road, and witnesses were examined on both sides, as to the additional damage which would result therefrom. The court gave their judgment that the road should be granted to the Owings, upon the case made by the evidence. Can the legislature, by directing a different construction of the act of [**11]  1834, take away the road, or deny to the parties a means of improvement declared to be properly within their power, and without which the road would be absolutely worth nothing to them--and thus deprive them of their rights and property, by giving a construction to the act of 1834, different from the judgment of the court interpreting that law? This is the exercise of a judicial power by the legislature, and clearly contrary to the 6th article of the bill of rights, and absolutely void.

But suppose that in the act of 1836 the legislature did not usurp judicial authority, but intended merely to exert their legislative power,--still I conceive the act would be void, as taking away the right of the Owings, and depriving them of the beneficial enjoyment of their property, as secured to them by the judgment of the court, under the laws as they existed at the time of the judgment. As the legislature could not have authorised the condemnation of the property of Worthington, as a road for the Owings, without compensation to him, neither can they deprive the Owings of their road, or of any rights incidental to, or connected with it, unless upon full compensation. To take away the private [**12]  property of individuals, or to deprive them of the legitimate means of a profitable enjoyment of it, would equally violate those fundamental principles by which the private rights of property are secured by the fundamental principles of every free government. 3 Story's Com. Calder & Bull, Dallas. Vanhorn & Dorance, 2 Dallas.

I have hitherto supposed, that according to the true construction of the act of 1836, it would in terms apply to the road of the Owings, and have objected to it upon the ground of its being oppressive and unconstitutional. But in truth that act does not apply to the case made in the bill, if indeed the court shall regard that law as an act of legislation, and not a judicial sentence.

The facts set forth in the bill, and also in the answer, shew, that before the passage of the law of 1835-6, the road had been adjudged to the Owings, and that they had completed it in part, with the rails constructed upon it, through the lands of Worthington.

Now the law in substance forbids rail roads to be made on private roads, which have or may be granted. It does not direct that rail roads already constructed shall be broken up, or that those which are in the course [**13]  of construction shall not be completed; and consequently, it can have no retroactive effect upon the unfinished road of the Owings. Courts will always construe laws as strictly as possible, to avoid a retrospective effect, and this rule is founded in the principles of general jurisprudence. Devaris on Statutes, 9 Law Lib. 34, 35. "Here is a vested right," says Lord Mansfield, "and it is not to be imagined that the legislature could, by general words, take it away." Ibid 35. The rail roads, then, against which the statute is directed, are rail roads to be commenced after its passage, and cannot refer by the rules of construction to those which are in an unfinished state or nearly completed, and upon which much labor and expense have been employed.

Should the appeal in this case be dismissed, the appellants contend that the injunction should not be continued until final hearing, without a bond by the appellee to indemnify the appellants from any injury they may sustain by reason of the injunction,--the answer sets forth the facts, showing how great the damage is that may be occasioned to the appellants by interrupting the completion of their road, and indeed this sufficiently appears [**14]  from the bill itself; and the act of 1835, ch. 380, sec. 3, directs, that this court "shall pass such order in the premises as to it may seem right." Ought not the appellee then, as a condition to the continuance of his injunction, to be directed to give bond with proper security to indemnify the appellants. The Chancellor erred in granting the injunction without bond, and this error I apprehend may be rectified or remedied by the power given to this court under the above act.

S. I. Donaldson and R. Johnson for the appellees.

This case presents but two questions: First, Does the act of 1834, ch. 253, under which the application for the road in the proceedings mentioned was made, contemplate the making of a rail road; and Second, If it does, what effect has the subsequent act of May 1835, ch. 362, upon the proceedings in the particular case, under the circumstances of the case when that act was passed.

A very few remarks will put the court in possession of the views of the counsel of the appellee upon each question.

First. What is the construction of the act of 1834?

It will not be denied that, as far as we have any knowledge upon the subject, no private rail [**15]  road was ever before attempted to be constructed, either under the original act of 1785, ch. 49, repealed by that of 1834, or under that act.

The character of the road to be made necessarily enters into the estimate of the damages to be sustained by the owners of land over which it is to pass. A road of the ordinary kind, offering little or no difficulty to the owner of the soil in passing to and fro, graded in the ordinary form, and but slightly varying from the elevation or depression of the ground over which it traverses, subjects the proprietor to little comparative loss, with a road graded to a level suited for a rail road. For that purpose, hills must be cut down; valleys filled up by embankments; the ground to construct the embankment be obtained; and, in the general, necessarily attended with essential mischief to the proprietor of the soil.--Passing from one side to the other of the road often rendered impossible, and the loss of soil itself necessarily greater than in the case of an ordinary road. If the right asserted by defendants--the appellants--exists, it is manifest, that without getting such compensation, (for the applicant is not obliged to disclose his intention [**16]  to make a rail road) his property may be taken from him greatly to his injury. Beside this, if there is a right to lay the rails, there is the corresponding right to use the road, as such roads are usually used, and of course the proprietor of the ground may be subjected to injurious effects upon his cattle, &c., by the use of locomotives, and to their irreparable annoyance, and this without the proper compensation.

Second. What is the effect of the act of 1835?

In the first place, it is at best a legislative interpretation of the intent of the act of 1834, and strengthens in that view what we contend for upon the first question.

But, as an independent enactment, it prohibits the rail road in this case.--Whatever may be the general rule in the construction of statutes, that they are to be applied only prospectively, the rule is equally settled, that if the clear meaning of its terms is retrospective, as much as prospective, they must be so construed. The cases upon this subject were cited to the court in the case, argued at the present term, of Laurence and Heister.

The words of this act are in this particular too plain to admit of doubt. Is there then any constitutional [**17]  difficulty in applying the act to this case? We contend not. The payment in part of the compensation awarded by the county court, and the tender of the balance, gives no right unless it is clear that the sum so awarded was adjudged for the loss to be occasioned not only by the making of a road, but of a rail road. If not, the laying of the rails in part, though perhaps independent of the act of 1835, it might have been done because not expressly prohibited, was not such an executed judgment as puts it out of the power of the legislature to prohibit the making of a road from which the proprietor of the soil was not fully indemnified.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*292]  DORSEY, Judge, delivered the opinion of the court.
The application in this case is for a private road or way to the Patapsco Falls, to pass over the same in order to reach the Baltimore and Ohio rail road, which is the nearest convenient public road to the farm of the petitioner. The applicants also state, that after they cross the said falls, they have obtained the permission of all those who own the lands [**18]  in Anne Arundel county, through which it is proposed to carry said private road, that the same may be made to the said rail road free of any compensation for such permission. The powers vested in the levy court or commissioners by the act of 1834, is a delegation 

 [*293]  of a special authority, and the proceedings under it must display the authority by which they are had, and be in conformity thereto, or they are coram non judice and void. The application must set forth such a private road or way as the commissioners or levy court are authorised to grant, or they have no jurisdiction over the subject matter, and all their proceedings are a nullity. The appellants applied for a private road or way to the Patapsco Falls, which is not, and could not have been, alleged to be a public highway, or any other of the places enumerated in the act of assembly. To warrant the action of the commissioners to enable them to exercise any jurisdiction over the subject, a case must be presented to them in which they are competent to grant all the relief designed for the applicants; by the act of assembly they must have the power of granting the way to the Baltimore and Ohio rail  [**19]   road, or they have no power at all. A case like the present was not contemplated or provided for by the act of assembly. No action could, in such a case, have been had by the levy court or commissioners of Anne Arundel county, and the allegation, that the intervening land holders in Anne Arundel had granted permission for the extension of the private road to the Baltimore and Ohio rail road, could not confer on the commissioners of Baltimore county, a jurisdiction they did not otherwise possess. Had a continuous way in both counties been looked to by the legislature, the appropriate means of locating it would have been provided. If it be held sufficient to entitle a party to a private road or way to any point or place not specified in the privilege granted by the act of assembly, simply by the allegation that from that point or place he has permission of the intermediate land holders to extend the way to some of the places enumerated in the law, all the limitations and restrictions as to place, in the granting of private ways, become a dead letter, and an applicant may obtain a private way any where, without reference to the place or object for which it is granted,  [**20]  in direct violation of both the letter and spirit of the act of assembly. An insuperable objection also to the granting of the way, as prayed for, is, that it crosses a public highway before it reaches 

 [*294]  the Patapsco Falls, which the act of assembly does not warrant. It authorises the grant of a private way to a public highway, not the crossing and going beyond it. The only remaining ground of appeal from the proceedings of the Chancellor is, the dismissal of the appellant's petition, praying for the appointment of an earlier day for the hearing of the motion to dissolve the injunction, and for an order on the appellee to file an injunction bond. The appellants having appeared in the Chancery court, filed their answer and entered on the docket notice of motion to dissolve the injunction, to be heard at the succeeding July term, it is difficult to conceive what benefit could result from an appeal from the decision of the Chancellor, on such an application as that now before us. The application too, from its nature, was an appeal exclusively to the discretion of the Chancellor, over which this court have no control. From the views hereinbefore expressed upon the merits [**21]  of this controversy, and the rights of the parties, we could not do otherwise than approve of the Chancellor's dismissing the appellant's petition, so far as it applied to the granting an order to the appellee to file an injunction bond.
The orders of the Chancellor appealed from are affirmed with costs, and cause remanded to the Chancery court.
ORDER AFFIRMED.
BUCHANAN, C. J., dissented.  

4 of 47 DOCUMENTS 

THE FRANKLIN BANK OF BALTIMORE vs. THE PENNSYLVANIA, DELAWARE AND MARYLAND STEAM NAVIGATION COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 28; 1839 Md. LEXIS 26 

December, 1839, Decided 

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

This was a special action on the case, in which the plaintiffs below, the appellants, declared against the appellees.

1st. Upon the delivery of a package of bank notes by the plaintiffs to the defendants, at their special instance and request, to be carried from Baltimore to Philadelphia. 2nd count like the first, with an additional allegation, that the defendants were to deliver the said bank notes to the plaintiffs at Philadelphia. Breach, that the defendants neither safely nor securely carried them to Philadelphia, nor delivered them there, but conducted themselves so negligently in the premises, that the same were lost. Plea, that the defendants did not undertake in manner and form as alleged, &c.

At the trial the plaintiffs, to support the issue on their part, gave in evidence to the jury, by James L. Hawkins, cashier of the Franklin Bank of Baltimore, the plaintiffs, that on the morning of the 18th November 1834, he took a sealed package addressed to J. B. Mitchell, cashier of the Mechanics' Bank of Philadelphia, containing bank notes amounting to $ 3,960, which the witness had himself counted, before he sealed said packet to [**2]  the office of the defendants in the city of Baltimore, and requested Col. Thos. Sheppard, the agent of said defendants, to take charge of the same, in order to its being conveyed by the steam boat line of said defendants, to the person to whom it was addressed at Philadelphia. That said Sheppard being at the time occupied by business at the office, gave witness a key, and directed a negro man in the employment of defendants, to go with witness and show him the trunk on board said boat, in which packages of value were put; requesting witness to place said package of bank notes in said trunk or chest, which witness accordingly did, and having locked the chest, returned the key to said Sheppard. That witness wrote to said Mitchell on the 17th November, advising him of his intention to send a package containing the said sum in notes, by the boat of next morning, which letter was mailed on the 17th or 18th. The witness further stated, that he had frequently sent packages of bank notes to the Mechanics' Bank of Philadelphia by the same conveyance, which had always arrived safely; that he never paid any freight or compensation to the defendants for their conveyance, nor had any such freight [**3]  ever been demanded by them or any of their agents;--that the package in question was never received by the Philadelphia bank or any of its officers, but the witness supposes was stolen. The plaintiffs further offered in evidence the proceedings under a commission executed in Philadelphia, with the interrogatories, and the depositions taken under it.

These it is thought unnecessary to introduce, as those portions of the evidence upon which the questions decided arose, are recapitulated by the judge who delivered the opinion of this court.

In the progress of the trial, the defendants' counsel objected to the admissibility of a part of the plaintiffs' proof, and the court below (ARCHER, C. J. and PURVIANCE, A. J.) sustained the objection and excluded it.

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

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In general, the declarations of third persons are inadmissible evidence, though the rule which excludes them, does not apply to the authorised declarations, or representations of an agent.

The rule arising from the relation of principal and agent is, that the declarations or representations of an agent, made in the course of, and accompanying the transaction which is the subject of enquiry, and acting within the scope of his authority, may be proved as part of the res gestae.

But the rule does not extend to declarations, or representations, made after the transaction, though in relation to it;--such declarations constituting no part of the res gestae, and not being binding on the principal.

The credit of a witness cannot be impeached, by proving antecedent statements, inconsistent with his testimony upon the stand, without first interrogating him upon the subject on cross examination, that he may have an opportunity of explaining, what might otherwise appear contradictory.

A party cannot discredit his own witness, or shew his incompetency, though he may call other witnesses to contradict him as to a fact material to the issue, in order to shew how the fact really is.  

COUNSEL:
By MEREDITH for the appellants, and

By McMAHON for the appellees.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*30]  BUCHANAN, C. J., delivered the opinion of the court.
The suit is to recover the value of a package of bank notes,  [**4]  which it is alleged, the defendants undertook to carry safely from Baltimore, and deliver at Philadelphia, and which is charged to have been lost by reason of gross negligence.
It is only necessary to take notice of those portions of the evidence offered at the trial, upon which the questions presented arise. It was proved by the cashier of the plaintiffs, that on the 18th of November 1834, he took the package in question, addressed to J. B. Mitchell, cashier of the Mechanics' Bank of Philadelphia, to the office of the defendants in Baltimore, and requested their agent at that place to take charge of it for the purpose of its being conveyed by their steam boat line, to the person to whom it was addressed at Philadelphia; that the agent gave him the key of a trunk on board the boat, 

 [*31]  in which he requested him to place the package, which he did; and having locked the trunk, he returned the key to the agent. It was further proved, that the package was never received by the Mechanics' Bank of Philadelphia, or by any of its officers. The plaintiffs also offered in evidence a commission issued to, and executed in Philadelphia with the depositions [**5]  taken under it; among which is a deposition of J. B. Mitchell, the cashier of the Mechanics' Bank of Philadelphia, taken on the 24th of June 1835, and another, the deposition of Nathan Davidson, proved to have been the agent of the defendants at Philadelphia, taken on the 8th of July 1835. Both of whom were produced and examined on the part of the plaintiffs. Mitchell swears, among other things, that he was absent from Philadelphia from about the 10th until the 27th of November 1834; that on his return he found two letters at the Mechanics' Bank, addressed to him from the cashier of the plaintiffs; the first of the 17th of November 1834, advising him of the forwarding of the package by the steam boat line of the defendants, which had been received at the bank, and opened in his absence, which it was the duty of the president to do; and the second of the 21st of the same month, requesting him to make inquiry at the office of the steam boat line, by which the package had been forwarded; that within a day or two after his return, he applied at the office, to Davidson the agent of the defendants, for the package, and thinks he showed him the letter [**6]  from the cashier of the plaintiffs of the 21st of November 1834, who told him, that on the evening of the 18th of November 1834, there were a number of persons in the office, when the trunk was opened by the clerk, and the packages handed out by the porter to the clerk; that there was a package addressed to Mr. Mitchell; but whether to Mr. Mitchell the witness, or to a dry goods merchant of that name, he did not know, nor did he know that it contained bank notes; and that the package was thrown upon the desk, and which was the last that he, Davidson, knew of it. But he says that he does not recollect whether what Davidson said in that conversation, was spoken as of his own knowledge, or as derived 

 [*32]  from his clerk: that the cashier of the plaintiffs had been in the common practice of forwarding his packages by that steam boat line, which were sometimes sent to him by the porters of the steam boat office; that at other times he called and received them himself, and that sometimes the porter of the bank was sent down to the steam boat office for them. And it appears from other evidence taken under the commission, that a porter to the Mechanics' Bank had before [**7]  been twice sent to the office of the defendants for the package in question, but failed to obtain it. Davidson, in his answer to the second interrogatory propounded on the part of the plaintiffs--"Have you any knowledge or recollection of a package directed to J. B. Mitchell, esquire, cashier of the Mechanics' Bank of Philadelphia, being in a trunk or chest kept as the depository of small packets on board the steam boat belonging to the Citizens' Union Line, which arrived at Philadelphia from Baltimore with passengers in the afternoon or evening of the 18th of November 1834? If yea, was or was not the said package taken from the said trunk or chest by the porter of the defendants, or by some other and what person in their employment, and by him delivered to their agent or clerk, and what afterwards became of said packet? State your whole knowledge respecting said packet fully and particularly"--swears, that "he has no knowledge whatever of the matters inquired of in that interrogatory," which is repeated in different parts of his deposition. And in the course of his examination he says, among other things, that he thinks, and is positive, that on the night of [**8]  the 24th November 1834, he received a letter from the agent of defendants in Baltimore, informing him that an officer of the plaintiffs had, on the 18th of the same month, put into their chest a package of money for the Mechanics' Bank of Philadelphia, which the plaintiffs had been advised by letter had not come to hand, and requesting him to inquire into the affair, and that that was the first knowledge he had of the matter; which was confirmed on the same evening by the president of the Mechanics' Bank, in a conversation with him. But as soon as he received the letter of the agent in Baltimore 

 [*33]  of the 24th of November 1834, he enquired of the clerks in the employment of the defendants, whether they had seen such a package? who replied they had not, and that he had had no other conversation with any of the clerks on the subject. That some eight or ten days afterwards, the cashier of the Mechanics' Bank (J. B. Mitchell) called on him, and enquired if he had heard any thing of the lost package; that he told him he had not, and that he had had no communication since that time, with him or any one else on the subject. Those two witnesses then, Mitchell [**9]  and Davidson, are clearly at variance with each other, and what they have respectively sworn to, cannot be reconciled. Those parts of the deposition of Mitchell, which state the declarations of Davidson, the agent of the defendants at Philadelphia, in reference to the arrival of the package, and his account of what became of it afterwards, being objected to by the defendant's counsel, they were rejected by the court, as inadmissible,--which presents the question, whether proof of Davidson's declarations or admissions, made at the time they were, should have been permitted to go to the jury, to charge the defendants.
In general, declarations or statements by third persons are inadmissible; that however is not an universal principle, and does not apply to the authorised declarations or representations of an agent. The rule springing from the relation of principal and agent being, that the representations or declarations of an agent, made in the course of, and accompanying the transaction which is the subject of inquiry, and acting within the scope and limits of his authority may be proved. But it does not extend to declarations or representations made after the [**10]  transaction, though in relation to it; and the principle upon which the declarations or representations of an agent, within the scope of his authority, are permitted to be proved, is, that such declarations, as well as his acts, are considered and treated as the declarations of his principal. What is so done by an agent, is done by the principal through him, as his mere instrument. So whatever is said by an agent, either in the making a contract for his principal, or at the time, and accompanying 

 [*34]  the performance of any act, within the scope of his authority, having relation to, and connected with, and in the course of the particular contract or transaction in which he is then engaged, is in legal effect, said by his principal, and admissible in evidence; not merely because it is the declaration or admission of an agent; but on the ground, that being made at the time of, and accompanying the contract or transaction, it is treated as the declaration or admission of the principal, constituting a part of the res gestae, a part of the contract or transaction, and as binding upon him as if in fact made by himself. But declarations or admissions by an agent, of his own authority, [**11]  and not accompanying the making of a contract, or the doing of an act, in behalf of his principal, nor made at the time he is engaged in the transaction to which they refer, are not binding upon his principal, not being part of the res gestae, and are not admissible in evidence. But come within the general rule of law, excluding hearsay evidence; being but an account or statement by an agent, of what has passed or been done or omitted to be done, not a part of the transaction, but only statements or admissions respecting it--and if they relate to any thing resting in his knowledge material to either party, it must be proved by his testimony, and not by evidence of his mere assertions, which is no proof of it. This distinction between the declarations or admissions of an agent, accompanying the making of, and constituting therefore a part of the contract or transaction, and such as are made at another time, runs through the books, and is clearly settled. The City Bank of Baltimore vs. Bateman, 7 H. & J. 104. Langhorn vs. Allnutt, 4 Taunt. (Eng.) 511. Masters vs. Abraham, 1 Esp. 375. Fairlie vs. Hastings, 10 Ves. Jr. 123. [**12]  Betham vs. Benson, 5 E.C.L. 454. Westcot vs. Bradford, 4 Wash. C. C. 492. 2 Starkie on Evid. 60, 61. In Biggs and others vs. Lawrence, 3 Term. R. 454, Justice Buller permitted a receipt given by an agent for goods directed to be delivered to him, to be read in evidence against the principal. But that decision is condemned by Dallas, Chief Justice, in Betham vs. Benson, 5 Eng. Com. Law Rep. 

 [*35]  and disapproved of in Fairlie vs. Hastings, 10 Vesey Jr.; and in Boarman vs. Radinius, 7 Term. R. 665, it is said to have passed without much observation, and that Lord Kenyon, who was on the bench at the time, had since frequently ruled the contrary, without its having ever been questioned. Biggs and al. vs. Lawrence, may therefore be considered as overruled.
The evidence offered in this case and rejected by the court below, is of a conversation alleged to have taken place between Davidson, the agent of the defendants, and the witness, some eight or ten days after the transaction to which it relates, and after the loss of the package in question, when the agency for the delivery [**13]  of it to the person to whom it was addressed had ceased, not constituting a part of the transaction, but a subsequent account only of what had before occurred respecting it. It cannot therefore be treated as a statement or admission by the defendants, and as such binding upon them, and admissible in evidence; but must be considered as a mere narrative of facts by Davidson, of his own authority, to be proved by him on oath, if within his own knowledge, or by some other witness, and not by evidence of his statement of them, which is forbidden by the general rule of law in relation to hearsay evidence. That portion therefore of Mitchell's evidence, which was objected to at the trial, was properly rejected, as inadmissible to bind or affect the defendants.
But it has been argued, that it should have been received to contradict the testimony of Davidson, which would have been altogether irregular.
The credit of a witness may be impeached by cross examination, or by general evidence to affect his credit; or by contradictory evidence, or proof of what he has antecedently said, which is inconsistent with his testimony on the stand. To prepare the way, and as a foundation for [**14]  which latter mode of impeaching his credit, he should be asked the question on cross examination, that he may have an opportunity of explaining what might otherwise appear to be contradictory, which was not done.

 [*36]  Looking to the order of time in which those two witnesses, J. B. Mitchell and Davidson were examined--the first on the 24th June 1825, and the other on the 8th of July following--Davidson's deposition would have the aspect of evidence, contradictory of what Mitchell had before sworn to, in relation to the statement concerning the package ascribed to him. But whether if Davidson had been called and examined on the part of the defendants, and on cross examination, questioned in relation to that statement, the evidence of Mitchell which had been given before, could have been properly resorted to, for the purpose of discrediting him, is not material in this case. It is a general rule of law founded on reason and good sense, and to effect the ends of justice, that a party cannot discredit his own witness, or show his incompetency; though he is not bound by whatever his witness may say, who, under a defect of memory, may make statements [**15]  adverse to his interests. Therefore, if the witness gives evidence against him, he may call other witnesses, not to discredit him generally, but to contradict him as to a fact material to the issue, to which he has deposed, in order to show how the fact really is, and it was upon that principle, that in Friedlander vs. The London Assurance Co., 24 E.C.L. 193, cited and relied on by the counsel for the plaintiffs, the evidence proposed was determined to be admissible, the object of which was, not to discredit the witness, by evidence of what he had previously said, but to show what the facts really were, by contradicting him as to the facts, to which he had deposed. But this is not like that case. Here it is attempted to be shown, that the plaintiff should have been permitted, not to contradict his own witness, by proof of what the facts were in relation to the lost package, contrary to what he had sworn, but to discredit him, by evidence of what he had before said respecting it; which cannot be. The judgment must therefore be affirmed.
JUDGMENT AFFIRMED.  

5 of 47 DOCUMENTS 

JOSEPH DUNCAN vs. THE MARYLAND SAVINGS INSTITUTION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 299; 1838 Md. LEXIS 31 

December, 1838, Decided 

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

This was an action of assumpsit, brought on the 22nd August 1834, by the Maryland Savings Institution against Joseph Duncan. Issue was joined on the plea of non assumpsit.

1st Exception. The plaintiffs to support the issue on their part offered in evidence the charter granted them by the General Assembly of Maryland, with the bye laws which they had enacted under the same, and also the supplement thereto, and the following promissory note, admitted to have been made and delivered to them by the defendant, viz:

"Baltimore, July 3rd 1833.

"Six months after date I promise to pay the Maryland Savings Institution one hundred and fifty dollars for value received, for the prompt payment of which sum I hereby pledge 16 shares of stock standing in my name on the books of said institution.

Joseph Duncan."

$ 150.

The defendant then proved that, the said note was made and delivered by him to the plaintiffs, to obtain thereon from them, the loan of the sum of money expressed upon its face for the period of time therein mentioned, and that the plaintiffs did, on the day of the date of said note, make a loan thereon to him of [**2]  the said sum for that period, and for interest upon said loan did deduct from the face of said note, on the day on which said loan was made, the sum of $ 4.60, which was admitted, for the purposes of this prayer, to be the interest legally chargeable at the expiration of six months, and three days of grace for the forbearance of one hundred and fifty dollars for that length of time. And thereupon the defendant prayed the court to instruct the jury, that although they may believe that, he made and delivered to the plaintiffs the promissory note which they have given in evidence, yet if they shall also believe the facts offered in evidence by him, and shall further believe that, the plaintiffs did intentionally exact and take from the defendant, upon the day on which said money was loaned, the sum of four dollars and sixty cents, as and for interest upon the sum so loaned them, that the plaintiffs are not entitled to recover, because such exaction and taking of interest in advance, upon the loan of money on a note not negotiable, was corrupt and usurious, and avoids the contract of loan, which instruction the court [MAGRUDER and PURVIANCE, A. J.,] refused; but directed the jury, that [**3]  the said exaction and taking of interest was not usurious. To which refusal the defendant excepted.

2nd Exception. The plaintiffs having offered the evidence already given in the first exception, the defendant in addition to the evidence already given by him in said exception proved by Rowlett's interest tables, that the interest of one hundred and fifty dollars for six months and three days, the time contained in said note, was four dollars and fifty-eight cents.

And thereupon, the defendant prayed the court to instruct the jury that, although they may believe that, the defendant made and delivered to the plaintiffs the promissory note, which they have given in evidence, yet, if they shall also believe the facts offered in evidence by him, and shall further believe that, the plaintiffs did intentionally exact and take from the defendant, the sum of four dollars and sixty cents, as and for interest upon the sum so loaned by them, then that the plaintiffs are not entitled to recover, because such exaction and taking of said sum for interest, was corrupt and usurious, and avoids the contract of loan. The court refused the instruction, and directed the jury, that the said exaction [**4]  and taking of interest, was not in itself usurious. The defendant excepted.

3rd Exception. The plaintiffs having offered the evidence already given in the foregoing bills of exception, the defendant proved that, the said note was a renewal of one dated the 3rd October 1831, and payable 60 days after date for $ 150, which was made and delivered by him to the plaintiffs, and which was in the words and figures following to wit:

"$ 150.00.     Baltimore, 3rd October 1831.

Sixty days after date I promise to pay to the Maryland Savings Institution one hundred and fifty dollars, for value received.

Joseph Duncan."

And further offered in evidence that, the said note of the 3rd of October 1831, was made and delivered by him to the plaintiffs, to obtain thereon a loan of the sum of money expressed upon its face for the period of time therein mentioned, and that said loan was on the 4th October 1831 granted to defendant by the plaintiffs, and that for interest upon said loan the said plaintiffs did deduct from the face of said note, on the day on which said loan was made, the sum of one dollar and sixty cents, and further offered in evidence by Rowlett's interest tables,  [**5]  that the interest of one hundred and fifty dollars, from the 4th October 1831 to the 5th December 1831, reckoning both days inclusive, was one dollars and fifty-eight cents.

And thereupon the defendant prayed the court to instruct the jury, that although they may believe he made and delivered to the plaintiffs the promissory note which they have given in evidence, yet, if they also believe the facts offered in evidence by him, and shall further believe that, the plaintiffs did intentionally exact and take from the defendant the sum of one dollar and sixty cents, as and for interest upon the sum so loaned by them, then that the plaintiffs are not entitled to recover, because such exaction and taking was corrupt and usurious, and avoids the contract of loan. The court refused the instructions, but directed the jury, that such exaction and taking of interest, was not usurious. The defendant excepted.

4th Exception. The plaintiffs having offered the evidence already given by them in the foregoing exceptions, the defendant proved, that the said note was so made and delivered, with a view to have the same discounted by the plaintiffs, and that the plaintiffs did discount it for [**6]  the defendant; thereupon the defendant prayed the court to instruct the jury, that if they believe the above facts, then, although they may believe that the defendant made and delivered to the plaintiffs the promissory note which they have given in evidence, that the plaintiffs are not entitled to recover, because their charter prohibits their discounting promissory notes; but the court by consent of counsel refused pro forma to give the instruction, and directed the jury, by consent of counsel and pro forma, that the plaintiffs had power to invest their funds, and as a mode of investment, were authorised to discount promissory notes by their charter. The defendant excepted.

5th Exception. The plaintiffs offered the evidence on their part stated in the foregoing bills of exceptions; whereupon the defendant proved that, the said note was made and delivered to the plaintiffs with intent to obtain from the plaintiffs a loan of the money therein expressed, upon a pledge of sixteen shares of their own stock standing upon their books in the name of the defendant, and that the plaintiffs did make said loan accordingly; and thereupon the defendant prayed the court to instruct the jury,  [**7]  that although they may believe that, the defendant made and delivered to the plaintiffs the promissory note which they have given in evidence, yet, if they shall also believe the evidence offered by the defendant in this bill of exceptions, then that the plaintiffs are not entitled to recover, because their charter does not authorise them to loan upon a pledge of their own stock. The court refused the instruction; and directed the jury, that the plaintiffs had such authority. The defendant excepted, and the verdict and judgment being against him, he brought the present appeal.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

A charter conferring on a Savings Institution the power to invest deposits made with it in public stocks, or other securities, authorises the lending upon bills, bonds, notes, and mortgages, as well as stocks, and also the power of making loans by way of discount.

The incorporation of Savings or other institutions in the city or precincts of Baltimore, with authority to receive deposits and discount paper, is no violation of the pledge of the State given to the Banks of Baltimore, by the act of 1813, ch. 122, and 1831, ch. 131; the true interpretation of that engagement being, that no charter of incorporation should be granted within those limits during the specified period, with power to issue negotiable notes.

There is nothing in the charter of the Maryland Savings Institution which requires two securities to be taken for money lent, nor is it an objection to a note discounted there, that it is not negotiable. A promissory note in which the negotiable words are omitted, is within the Statute of Ann, and on it three days of grace are allowed according to mercantile usage.

It is not usurious in a bank to receive interest in advance upon notes discounted by it, and by the act of 1832, ch. 152, all other corporate bodies, and all citizens and residents of this State, are placed in this respect upon the same footing with the banks.

Usury does not consist in merely intentionally taking a larger amount of interest than is allowed by law, but there must be superadded to such intent, a corrupt design to charge more than the legal rate,--and that is a matter of fact to be submitted to the jury.

But the court did right in withholding the question from the jury, where the amount charged was only two cents more than the legal rate of interest, that circumstance standing alone being too trifling and inconclusive to warrant the jury in finding a corrupt and usurious intention.  

COUNSEL:
J. Mason Campbell for the appellant.

All the bills except the fourth show, that the defendant's prayers were rejected, and in that one it appears that the direction he asked for was refused by consent.

The 1st, 2nd, and 3rd prayers raise questions on the usury laws. The 4th and 5th present points, as to the corporate powers of the plaintiffs.

In proceeding to discuss the exceptions, I cannot refrain from premising, that I fear (an apprehension warranted by the past) of some attempt to prejudice my client in the eyes of the court, grounded on the character of his defences. Let a [**8]  single sentence be my answer. I never would have taken those defences except in support of merits otherwise defenceless; and should the reply be, that my assertion is no proof, the court will take notice that it is opposed only to a counter assertion of demerits; the record being studiously barred of every fact except those absolutely necessary to a legal decision.

The first three questions, are questions of usury, and as preliminary to their presentation, it is proper that I should say, such a defence is admissible under the general issue. Fulton Bank vs. Stafford, 2 Wendell, 486, and the cases there cited.

The first exception raises the point--Whether it is not usury to take interest in advance on the discounting of a note not negotiable?

The facts show that the discount was taken in advance, and that the note was not negotiable.

The authorities indisputably support the affirmative.--New York Firemen's Insurance Company vs. Ely, 2 Cow. 703, 704. Bank of Utica vs. Wagner, 2 Cowen, 769. Utica Insurance Company vs. Bloodgood, 4 Wendell, 655. Thornton vs. Bank of Washington, 3 Peters, 40. State Bank vs. Hunter, 1 Deveroux, 100.

From all these cases it appears,  [**9]  that the taking of interest in advance is against the statute, and only protected where the character of the paper discounted is negotiable; the circulation and convertibility of such paper being important to trade. There is no denying here, that the note was not negotiable; nay more, that it was the obvious intent of both parties it should not be, is clear from the face of the instrument.

It was said before, I think, that the acts of 1826, ch. 99, and 1832, ch. 152, legalizing Rowlett's Interest Tables, allow discounting in all cases. But the court is aware that those tables have nothing to do necessarily with the period at which interest is to be paid. They furnish a rule of calculation and nothing more, being framed upon the supposition that the year has an even number of days.

The second exception raises the point--Whether it is not usury, or rather, whether the taking of more than legal interest is not per se, in the absence of any evidence to the contrary. Evidence of a corrupt and usurious taking.

By the evidence it appeared $ 4.58 was the legal interest, and that $ 4.60 were exacted, and no proof explains for the plaintiff the cause of the excess. Prima facie [**10]  evidence is conclusive if there be nothing to oppose it. New York Firemen's Insurance Company vs. Ely, 2 Cowen, 705. Duvall vs. Farmer's Bank of Maryland, 7 Gill & John. 60, 61.

The third exception shews that the note sued on is a renewal of one, tainted, upon the authorities just cited, with usury, and presents the simple question, whether a contract usurious in its inception, is not equally bad in its continuation.

This exception calls for no observations.

The fourth exception presents the question--Whether the Maryland Savings Institution had by its charter the right to discount promissory notes.

I understand it to be already decided by this court, that a contract beyond the scope of a charter cannot be enforced. If the decision however had not been made, I refer to Fairtitle vs. Gilbert, 2 Du. & E. 871. New York Firemen's Insurance Company vs. Ely, 5 Connecticut, 564. Same vs. Bennet, 5 Cowen, 574. Same vs. Ely, 2 Cowen, 709. North River Ins. Co. vs. Lawrence, 3 Wendell, 482. Life and Fire Ins. Co. vs. Mechanics' Fire Ins. Co. 31.

Now the 6th section of the charter forbids the assumption under it of any banking powers,--those powers having been exclusively [**11]  granted to other institutions in Baltimore.

Is the power, then, to discount promissory notes a banking power?

Undoubtedly. 15 John. 390. The People vs. Bartow, 6 Cowen, 294. Same vs. Manhattan Co. 9 Wendell, 383. 5 Connecticut, 564.

If then, in discounting promissory notes, this institution was assuming powers forbidden it, will the court sustain it in violation of law?

The fifth exception raises the question--Whether the Maryland Savings Institution had the right to invest its monies in a loan on its own stock?

The 4th section of the charter authorises an investment in public stocks or other securities, at the discretion of the directors, and in the manner deemed most safe and beneficial.

Now, if the discretion of the directors is without limit, there is an end of the point. But I apprehend that, looking to the purpose apparent on the charter's face--that of making this institution a mere corporate trustee, the court will set some bounds to its discretion. In Trafford vs. Boehm, 2 Atkyns 444, where trustees were empowered to invest monies "in government funds or other good securities," Lord Hardwicke decided that the authority was not unlimited.

Is [**12]  it not too clear for argument, that it was the intent of this charter to give the depositor two securities.--The one, that of the institution itself, and the other, that of an investment to be made by the institution elsewhere? The deposites, while in the stock of the institution, are owing by nobody but itself. It still has them, and they cannot be said to be invested, till they are in some third hand, who thereby becomes a debtor to the institution, and as such is an additional security to the depositor.

D. Stewart for the appellees.

Upon the question that this corporation had the power to invest, and also to invest in the species of paper discounted, cited 6 Term. Rep. 123. 2 Ld. Ray. 1545. 15 J. Rep. 392. 3 Wendell, 296. Ib. 301. Ib. 583.

Upon the question that this transaction, nor the facts admitted by the prayers sought, did not constitute a case of usury. Act of 1826, ch. 99. Act of 1832, ch. 153. 3 Peters' S. C. Rep. 40. 9 Ib. 378. 7 Gill & John. 60, 61.

That if a case of usury existed, the debt was still recoverable on the money counts.--4 D. & E. 564. 3 Wendell, 296. Ib. 302. 19 John. R. 7. 8 Cowen, 20.

C. F. Mayer also for the appellees.

The [**13]  error of calculation might be evidence of a corrupt agreement, but it is not corruption per se. Usury depends on intention. 12 Pick. 588. 3 Gill & John. 123. Duvall vs. Farmers' Bank of Maryland, 7 Gill & John. 60, 61. 9 Peter. 400.--An agreement intended to violate the statute must be found.

But I contend the error is not even evidence of usury. 4 Wendell, 655. 2 Cowan, 664. 15 J. R. 168.

Taking interest in advance is not usurious. 8 Cowan, 20. 8 Wheat. 353. 3 Pet. 40. Cowper, 115.

As to the right of recovery on the common counts under the circumstances, as for a loan. 2 Cow. 664. 4 Wendell, 655.

The power to lend money, is an authority to invest. 5 Connec. 571. 9 Wendell, 383.

As to the charter of this institution violating the faith of the State plighted to the banks in the city of Baltimore, it is alone competent to those banks to complain. If they submit, no one else is to be heard on that head; but they are not injured unless the three great powers of a bank are conferred here,--creating money, receiving and discounting. 15 John. 390. 9 Wendell, 383. 2 Cowan, 700.  

JUDGES:
The cause was argued before BUCHANAN, C. J., STEPHEN, DORSEY, CHAMBERS, and SPENCE,  [**14]  J. CHAMBERS, J., dissented.  

OPINIONBY:
DORSEY 

OPINION:

 [*307]  DORSEY, J., delivered the opinion of the court.
Of the numerous questions which have been raised in this case, that which, in its proper order, first presents itself for determination, is, whether the Maryland Savings Institution has 

 [*308]  the power of lending any portion of its deposites, or of discounting therewith, promissory notes or other securities for debt.
As a corporation possessing no powers but those expressly or impliedly conferred on it by the enactment which brought it into being, to the terms of such enactment must we look for the outline of its powers.
The first section of the act authorises the institution to make all contracts whatsoever.
The third empowers the directors to provide for the investment of the funds of the corporation.
The fourth section under which deposites are received provides that, all monies so received shall be invested in public stocks or other secureties at the discretion of the directors.
In incorporating this company it was not the design of the legislature to create a mere stock jobbing institution, the funds of which were to be kept employed in buying and selling stocks [**15]  which, from the nature of business in receiving and paying off deposites, must have been the case, if all funds were exclusively appropriated to the purchase of stocks. Its charter therefore gave to the directors a discretionary power, to make investments in stocks or other securities.
What is the nature of the security here alluded to? "any thing given or deposited to secure the payment of a debt." The words, "other securities," therefore, embrace bills, bonds, notes, mortgages, &c., and the authority to make investments therein, clothes the institution with the power of making loans by way of discount. The concluding proviso to this section of the act of assembly, "that no part of the funds of said corporation, shall be loaned to any officer or director of said corporation," demonstrates the existence of the power we have ascribed to it. The People vs. The Utica Insurance Company, 15 Johns. 392.
But it is insisted that, the Maryland Savings Institution is deprived of the authority imputed to it, by the 6th section of its charter, which restrains it from doing "any act or acts in 

 [*309]  consistent with the privileges secured to the existing banking institutions [**16]  in the city of Baltimore."
By the acts of 1813, chapter 122 and 1831, chapter 131, in the 11th section of which it is enacted that, "in case of the acceptance of, and compliance with, the provisions of this act, by the several banks hereby required to make the aforementioned road, the faith of the state is further pledged to the aforesaid banks in the city of Baltimore, not to grant a charter of incorporation to any other banking institution to be established in the city or precincts of Baltimore, before the 1st January 1845."
Banking powers have been defined as consisting of the right of issuing negotiable notes, discounting notes, and receiving deposites. See 5 Conn. 383, The People vs. President, &c. of Manhattan Co. 15 Johns. 390, The People vs. Utica Insurance Company.
If then the creation of a corporation with any one of these banking powers is a violation of the faith of the State, plighted to the banks of Baltimore, the incorporation of the Maryland Savings Institution, is a violation of that pledge, whether the right of discounting be granted or not. The primary object of the legislature and of the company incorporated,  [**17]  the authority to receive deposites, has been explicitly given; and this is one of the three enumerated attributes of a banking institution. If the construction now contended for of the acts of 1813 and 1831 were sustained, it would follow that, all the Savings Institutions and Insurance Companies, created by legislative sanction in the city of Baltimore, since the year 1813 were violations of the faith of the state pledged to the banks of Baltimore. To disrobe itself of the power of creating such institutions, so highly beneficial to the public interest, was never designed by the legislature. The interference of the operations of such institutions with the concerns of the banks, was too unimportant, to induce the exaction of such a pledge from the State. The true interpretation of the engagement, entered into by the legislature with the banks was, that no charter of incorporation should be granted to any banking institution 

 [*310]  to be established within the city or precincts of Baltimore, clothed with the valuable and important power of issuing negotiable notes. The object of the banks being to secure to themselves the exclusive emission of bank paper within [**18]  the prohibited district.
It is said that, a loan on such security as that given by the appellant, was not authorised by the charter of the Maryland Savings Institution, which requires two securities to be taken for all money lent. But no such requisition is to be found in the charter, and if there were, it has been complied with in making the loan in question, two securities having been given, one the personal responsibility of the appellant, the other the sixteen shares of hypothecated stock.
An objection was made to the form of the note discounted, that it was not a negotiable note. In this there is no weight, it is a note within the Statute of Anne; on it three days of grace are allowed according to mercantile usage, and it is as beneficial a security to the institution as if it had been made payable to its order.
The first bill of exceptions concedes that, the interest taken by the Maryland Savings Institution was the legal interest, which would have been payable on the note at the expiration of six months and three days; but insists that, it was the duty of the institution to have advanced to the appellant the entire sum of money specified in the note, and at the [**19]  maturity thereof he was to repay the amount of the note with the interest thereon.
The fallacy of such a position is demonstrated by the note itself. It was payable six months after date and did not bear interest. If then the institution had advanced, upon the note, the amount expressed upon its face, according to its tenor, at the expiration of the six months, the institution would have been reimbursed the sum by it originally advanced, without any interest whatever. Such a mode of making a loan, on such a security, has no countenance from the charter of the Savings Institution, or the law of the land. Under this exception it is also insisted that, taking the interest in advance, 

 [*311]  upon the discount of the note, is usurious, and avoids the note given as a security for the loan. In Floyer vs. Edwards, 1 Cow. 114, Lord Mansfield said, "upon a nice calculation it will be found that the practice of the bank in discounting bills exceeds the rate of 5 per cent. (the legal rate of interest in England,) for they take interest upon the whole sum for the whole time; the bills run, but pay only part of the money, viz., by deducting the interest; yet this is [**20]  not usury." And in Thornton vs. Bank of Washington, 3 Peters 40, the Supreme Court say, to sustain the defence it has been said that the receipt of the interest in advance for sixty four days, upon the discount of the note, is usury. But we are all of opinion, that the taking of interest in advance upon the discount of notes in the usual course of business by a bank, is not usury. The doctrine has been long settled, and is not now open for controversy. And the same principle was decided in The Bank of Utica vs. Wager, 2 Cow. 712. Agricultural Bank vs. Bissel, 12 Pick. 588, and Fleckner vs. U. S. Bank, 8 Wheat. 338,--in which latter case STORY, J., in delivering the opinion of the court, says, that an authority to make discounts, means an authority to receive the interest in advance. By the act of assembly of 1832, ch. 152, all other corporate bodies, and all citizens and residents of this State, are, in respect to the mode of discounting and the rate of charging interest on loans, placed upon the same footing with the banks.
In the second bill of exceptions the defendant insists that, by Rowlett's Tables, [**21]  the discount deducted from the note should have been four dollars and fifty-eight cents, whereas the deduction actually made was four dollars and sixty cents; and he thereupon prayed the court to instruct the jury, that if they believe the plaintiffs did intentionally exact and take from the defendant the sum of four dollars and sixty cents, as and for interest upon the sum so loaned by them, that the plaintiffs are not entitled to recover; because such exaction and taking of said sum for interest was corrupt and usurious, and avoids the contract of loan; which instruction the court refused, but directed 

 [*312]  the jury that, the said exaction and taking of interest was not in itself usurious.
We do not stop to inquire whether, according to Rowlett's Tables, now made a part of the law of the land, two cents more have, in point of fact, been deducted for interest than is authorised by law. But we assume, upon the hypothesis of the prayer, that two cents more were intentionally exacted as interest, than by the letter of the law the plaintiffs were warranted in receiving; and we are still of opinion that the court were right in refusing the defendant's prayer, and giving to [**22]  the jury the instruction as stated. In Stockett vs. Ellicott, 3 G. & J. 123, a case where usury was set up as a defence to a note, given for the balance due on an account, containing items of principal and interest, and where in fact more than six per cent. Interest had been charged, this court said, it is the intention that gives character to the transaction; the agreement, the intention of the parties, constituting a principal ingredient of usury. In Duvall vs. The Farmers Bank of Maryland, 7 G. & J. 44, this court have said, that "the finding of an intention to take more than legal interest was indispensable. The calculations or deductions of interest according to Rowlett's Tables were in all cases legalized by the act of 1826, ch. 90, and the admission is, that the bank has always been in the practice of charging interest or discount agreeably to the calculations in Rowlett's Tables. Now if it be true that the exception does show, greater interest or discount was in fact taken than was indicated by these tables, it would not necessarily follow that it was usury. For that must depend on intention, and if designing to follow calculations [**23]  which were lawful, and the admission of the uniform practice would seem to lead to such a deduction, they had, by mistake or error, and not by intention, deviated from the rules prescribed by Rowlett, a case would be presented from which usury could not be deduced." A party who demands and takes as a discount, a larger amount than is authorised by Rowlett's Tables, intentionally exacts what he receives. But whether this intentional exaction be the result of mistake or accident, or of a corrupt usurious 

 [*313]  design, is a matter of fact to be submitted to the jury. In the prayer under consideration, the defendant's counsel called on the court to decide this fact, instead of leaving it to the jury. The prayer on that account was properly rejected, and the instruction given was fully sustained by the authorities referred to.
We think the court below were right in refusing the defendant's prayer, in his third bill of exceptions, for the same reasons that sustained the refusal in the second exception. Nor do we think that, the judgment of the county court ought to be reversed, on account of the court's instruction to the jury that, the exaction of the interest complained [**24]  of, was not usurious, conceding, without a reference to Rowlett's Tables, to test the truth of the fact, that there was an overcharge of two cents in the calculation of interest in the absence of all proof indicating a corrupt and usurious design in making such overcharge, we regard it as too trifling and inconclusive a circumstance, to warrant the jury in finding a corrupt and usurious intention in the plaintiff. The pitiful amount of the sum exacted standing alone, rather disproves than proves usury. The finding of such a fact was therefore properly withheld from the jury.
Approving of the conduct of the county court as set forth in all the defendant's bills of exceptions we affirm their judgment.
JUDGMENT AFFIRMED.
CHAMBERS, J., dissented.  

6 of 47 DOCUMENTS 

THE MARYLAND INSURANCE CO. vs. JAMES BOSLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 337; 1837 Md. LEXIS 35 

December, 1837, Decided 

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

THIS was an action of Covenant, brought on a policy of the appellants, by which they insured the appellee to amount of $ 13,500, at and from Baltimore to Tampico, &c. and at and from thence back to Baltimore, upon cargo on board the schooner Ned. It contained the usual clause, that all other than the enumerated articles should be free from average under five per cent. unless general. The defendants pleaded that they had not broken their covenant, on which issue was joined.

At the trial of the cause the plaintiff proved that said vessel sailed from Baltimore for Tampico, laden with merchandise belonging to the plaintiff upon the voyage insured, of the cost and value of $ 57,740 93, and that with said merchandise on board, the said vessel arrived at Tampico, on or about the 15th July, 1822, and thereupon proceeded with due diligence, to discharge said merchandise, according to the usage of said port of Tampico, and in the only way, from the nature of the harbour, which is practicable, which is by conveying the merchandise in boats to be landed at Tampico; that of said merchandise, there was safely landed by the 29th July, 1822, to the amount [**2]  in cost and value, as aforesaid, of $ 39,164 93, leaving a residue of the cargo of said Bosley, on board, of $ 18,576, in cost and value as aforesaid; that of said residue of said merchandise of said Bosley, there were loaded on a boat to be conveyed to Tampico as aforesaid, six packages, consisting of linens (of which article the whole cargo aforesaid, of said Bosley was composed) that said six packages were of the amount in cost and value as aforesaid, of $ 2,884 57; that by perils of the seas, the boat so conveying said six packages, was, while duly pursuing her course to Tampico aforesaid, from the vessel, upset, and the goods in said six packages thereby were damaged to the amount of $ 1,320 49. Whereupon, the defendants prayed the court to direct the jury that if they believe from the evidence, that the amount of particular average loss sustained by the plaintiff, on the six cases of merchandise which was damaged in the course of being landed at Tampico, was not to the amount of five per cent. on $ 57,740 93, being the whole amount of insurable interest, as per invoice of the schooner Ned, mentioned in the policy, then the plaintiff is not entitled to recover, notwithstanding [**3]  the jury may also believe from the evidence, that at the time of the happening of the loss, a large part of the outward cargo had been safely landed, and that there was at that time on board goods to the amount only of $ 18,576. The defendants, by their counsel, prayed the court further to instruct the jury, that if they believe from the evidence, that the amount of particular average loss sustained by the plaintiff on the six cases of merchandise which were damaged in the course of being landed at Tampico, was not to the amount of five per centum on $ 57,740 93, being the whole amount at risk when the policy attached, and that the voyage was in fact from Baltimore to Tampico, and back again to Baltimore, then the plaintiff is not entitled to recover; notwithstanding the jury may also believe, from the evidence, that at the time of the happening of the loss, a large part of the outward cargo had been safely landed, and that there was at that time on board goods to the amount of only $ 18,576. All which instructions the court (Magruder, J.) refused to give. The defendant excepted.

After this exception, the parties entered into the following agreement:

BOSLEY vs. MARYLAND INSURANCE [**4]  COMPANY. In Baltimore County Court. We consent to a verdict of $ 1,500 for the plaintiff. Mr. John Gill is to make a statement of the plaintiff's claim, in which he shall allow him $ 200, with interest from 6th May, 1823, and such amount of particular average as he may find to be due upon a calculation of loss, based upon actual average sales of sound goods, of the same kind with those damaged at Tampico, and such other times of computation, as are usually regarded in an estimate of particular average loss, with interest thereon from February 5th, 1825.

A verdict was accordingly taken for $ 1,500, and afterwards the parties filed the following statement:

"Statement of particular average on three boxes Platillas, one box Creas a Morlaix, one box Listadoes, and one box Ronans; part of the cargo of the schooner Ned, John Coleman, master, damaged on a voyage from Baltimore to Tampico, on which she sailed about the    

________________________________________________________________________________
It is stated to me, it is admitted	
  that the amount of the invoice	
  of the entire cargo is	$ 55,431 00	
Which sum covered at a premium	
  of 4 per cent. is equal to		$ 57,740 00	
The invoice book shews that the	
  above damaged goods, to wit:	
  three boxes Platillas, one box	
  Creas a la Morlaix, one box	
  Listadoes, and one box Ronans,	
  cost per invoice, less debenture,	
  $ 2,769 00, which covered at a	
  premium of 4 per cent. equal to		2,884 57	
Sound value at Tampico of the	
   goods damaged, ascertained as	
   follows:	
The sales of sound goods at Tam-	
   pico shew, that the average gross	
   value at that place of sound	
   Platillas, is $ 15 89, pr. piece;	
   sound Creas a la Morlaix, is	
   $ 32 63, pr. piece; sound Ro-	
   nans, is $ 30 22, pr. piece; and	
   the proportionate sound value	
   of Listadoes, is $ 13 00, pr.	
   piece.	
At which rates, the gross sound	
   value of the goods damaged and	
   sold at vendue, are as follows:	
100 pieces Platillas, at $ 15 89,	1,589 00	
25 " Creas,   32 63,	815 75	
25 " Ronans,   30 22,	755 50	
50 " Listadoes,   13 00,	650 00	
	$ 3,810 25	3,810 25	
But being damaged sold only for	
  gross, as pr. the sales thereof	
  exhibited,		2,066 00	
	
Difference,		$ 1,744 25	
________________________________________________________________________________

 [**5]  

If $ 3,810 25, lose $ 1,744 25, what will $ 100 lose? answer $ 45, 777836 per ct. $ 2,884 57, at $ 45, 777836 per cent. equal $ 1,320 49.

If $ 57,740 00, the interest on the entire cargo, lose $ 1,320 49, by reason of damage, what will $ 13,500 00, insured by the Maryland Insurance Company lose? answer, $ 308 74.     JOHN GILL."

BALTIMORE, 14th November, 1835.

A judgment was entered in conformity to this statement and the agreement before mentioned--and the defendants appealed.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Upon a policy of insurance on cargo as interest may appear--the vessel arrived at her port of destination, and delivered a part of her cargo in safety. In the progress of a regular delivery of the balance, it was partially damaged by the perils of the seas. In an action for a partial loss, it was held, that although the amount of the particular loss did not amount to five per centum on the whole value of the cargo shipped by the insured, still he was entitled to recover, the loss being more than five per cent. on the amount at risk at the time of the damage.  

COUNSEL:
DAVID STEWART, for the appellant:

Cited Phillips on Ins. 397. The Ocean Ins. Co. vs. Carrington, 3 Conn. Rep. 357, 361. 7 Pick. R. 259, 266. Stev. & Ben. 427.

GLENN and MAYER, for the appellees:

Cited Rohl vs. Parr, 1 Esp. Rep. 445. Park, 163. 2 Mar. 620. 1 Phil. Ins. 494. Hughes, 215.  

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

OPINION:

 [*341]  By the court:
JUDGMENT AFFIRMED.  

7 of 47 DOCUMENTS 

MICHAEL DE YOUNG vs. LETITIA BUCHANAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 149; 1838 Md. LEXIS 17 

December, 1838, Decided 

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

THIS was an action of assumpsit brought by the appellee on the 2d April, 1835, in which she declared, for work and labour, &c., and for the use and occupation of a certain dwelling-house, store, messuage, &c., of the plaintiff, by the said De Young, at his special instance, &c.; and by the sufferance and permission of the plaintiff, for a long time then elapsed, had held, used and occupied, &c. The declaration also contained the common counts. The defendant pleaded non assumpsit, on which issue was joined.

At the trial of the cause, the plaintiff, to support the issue on her part, gave the following evidence, to wit: that on the 25th August, 1823, Letitia Buchanan, of Philadelphia, through her agent, Edward J. Coale, leased the premises in Market street, in the city of Baltimore, to Michael De Young, for a term certain, viz: for five years, commencing from the 20th day of August, 1823, at $ 500 per annum, payable quarterly, free of all deductions for repairs, &c. during the said term.

On the 15th of September, 1828, a new lease was executed by L. Buchanan for three years, to commence from the 20th of August, 1828, the date of the [**2]  expiration of the first lease, at $ 600 per annum, payable quarterly. On the 6th June, 1831, a further lease for a term certain was executed, viz: for three years, to commence from the 20th of August, 1831, the date of the expiration of the previous lease.

On the 20th of August, 1834, the foregoing lease expired. In May, 1834, George H. Newman, the agent of Mrs. Buchanan, and at her request, called on Mr. De Young, and informed him, that on the expiration of said lease in the ensuing August, Mrs. Buchanan would not again renew the lease, unless the rent were greatly augmented; that said De Young had enjoyed the property for nearly eleven years at a remarkably low rent, and had not performed his agreement to keep it in repair, and that unless $ 1,200 or $ 1,400 per annum were the stipulated rent, Mrs. Buchanan would decline a renewal. On the 20th of July, 1834, Mr. Newman wrote the following letter to Mr. De Young, which was sent to and received by him, said De Young, on the 30th July.

Michael De Young, Esq.     Baltimore, 20th July, 1834.

SIR:--To prevent any misunderstanding hereafter, relative to the rent of the property of Mrs. Buchanan in Market street, which [**3]  you now occupy, I think it proper to repeat to you in writing what I stated to you verbally in May last, in the presence of my clerks, viz: that Mrs. Buchanan would require of you to give her possession of the property on the 21st of August next, when your lease expires, or pay her a rent of one thousand dollars per annum, in quarterly payments, from and after the above date. As I am acting in this matter only as an agent, and have already given you sufficient time to make up your mind on the subject, I must request a prompt answer to this note. If I do not hear from you definitely on or before the 31st inst., I shall advertise the property for rent on the 1st of August, and consider myself at liberty to lease it to any other person without further reference to you.

Respectfully, your obedient servant,

GEO. H. NEWMAN, Agent for Letitia Buchanan.

On the 30th of July, Mr. De Young answered said letter in writing.

Geo. H. Newman, Esq.     Baltimore, July 30, 1834.

SIR:--Your letter dated 20th July, was handed me this morning by your clerk in the street, and, in reply, I beg to state, that the rent I pay at present, is fully equal to the value of the property,  [**4]  and as much as I, or any one else, can afford to pay at these times: as soon as they improve, I will be ready to treat with you about an increase of rent, but for the next year the rent will have to stand at its present price.

Yours, respectfully,

MEICHEL DE YOUNG.

That said De Young handed said letter of the 30th July, to said Newman--Newman then told him, that if he kept the property he should pay the $ 1000, or he would use measures to get him out if he could; to which De Young replied, alluding to this letter, there was his reply. On the 20th of August, when the lease expired, he paid the quarter's rent then due, refused to remove or to say any thing further on the subject of rent than what was contained in said letter.

November 20th, 1834, Mr. Newman presented a bill for a quarter's rent, viz: for $ 250, the one-fourth of $ 1,000, according to the terms of Mr. Newman's verbal assurance in May, and the letter of the 20th July: this bill Mr. De Young refused to pay: he was again urged to leave the premises or pay at the said rate, as more than $ 1,000 could be obtained for the premises, but he insisted on remaining at the old rate of $ 600, and tendered the quarter's [**5]  rent at that rate, viz: $ 150, which was received by Mr. Newman without prejudice to Mrs. Buchanan, and for which a receipt was given by Hoffman & Dobbin.

1834. "Mr. Michael De Young to Letitia Buchanan, Dr.

Nov. 20. To one-quarter's rent of house No. 198

Market street, due this day,     $ 250 00

Baltimore, January 22d, 1835.

Received of Mr. Michael D. Young $ 150, on account of a quarter's rent due Mrs. L. Buchanan, of Philadelphia, on 21st November, 1834; the said sum is to be considered in full of said rent if it shall be decided by Baltimore county court, or agreed between the counsel of said De Young and Buchanan, that no more is due.

HOFFMAN & DOBBIN, Ats. for Mrs. Buchanan."

For the balance of $ 100 suit is brought.

On the 20th February, 1835, another quarter's rent came due, and a bill for $ 250 was presented and refused; some time after a distress being threatened, it was again proposed to pay $ 150, and to leave the question of responsibility for the remaining $ 100, to abide the decision of the said cause.

"Baltimore, 20th February, 1834.

Received $ 150 rent, without prejudice to Mrs. Buchanan's further claim of $ 100,  [**6]  as before stated.

HOFFMAN & DOBBIN."

20th February, 1835.--$ 250 due, $ 150 paid, same receipt, by Hoffman & Dobbin.

On the 20th May, 1835, another quarter's rent becoming due, a bill for $ 250 was again presented and arranged in the same way.

"Baltimore, 21st May, 1835.

Received of Mr. Michael De Young $ 150, on account of rent due Mrs. Buchanan, of Philadelphia, 21st May, 1835. This receipt being expressly understood to be as the preceding receipts, no bar to the claim of Mrs. Buchanan to the additional $ 100 claimed by her.

DAVID HOFFMAN, Agt. for Mrs. Buchanan."

On the 27th of April, 1835, George H. Newman being applied to by Peter Albinson to lease the premises for seven years, to commence from the 20th August, 1835, when the one year for which Mr. De Young refused to give up the premises should expire, he agreed to lease the same for seven years at $ 1200, from said 20th of August, or sooner, if Mr. De Young would agree to vacate sooner, and without any prejudice to Mrs. Buchanan's claim for rent at $ 1000, instead of $ 600 per annum, which was agreed to by said Newman and Albinson.

"Baltimore, 27th April, 1835.

"I will lease you the [**7]  property, No. 198 Market street, now occupied by Michael De Yong, for seven years from the 20th August next, (or from the 20th May, if you can obtain possession from Mr. De Young, the present occupant,) at the annual rent of $ 1200 per annum, payable quarterly, free and clear of all taxes, assessments, water rent, and with the usual covenants: and I will also allow you $ 400 to be expended in improvements and repairs, the same to be in full of all further claims for these objects during your lease.

GEO. H. NEWMAN, for Letitia Buchanan.

Mr. Peter Albinson."

On the 20th May, 1835, De Young and Albinson came to an arrangement, by which De Young agreed to vacate in favour of Albinson, and without any prejudice to Mrs. Buchanan's claim to the three quarters' rent ending in May, at the rate of $ 1000, instead of at the rate of $ 600, if Mrs. Buchanan was, on the said facts, entitled to the said increased rent.

Whereupon the defendant prayed the court to direct the jury, that the plaintiff could not recover in this suit.

1st. Because an action for use and occupation will not lie in such case.

2d. Because from the facts of this case, as given in evidence, no inference [**8]  of renting at any other than the rate of $ 600 per annum, can be drawn by the jury.

3d. That the proper remedy of the plaintiff was by debt, ejectment, or the summary remedy provided by the act of assembly: which directions the court (Magruder and Purviance, A. J.) refused to give.

The defendant excepted.

A verdict for $ 334 21, with interest from the 24th January, 1837, being found against the defendant, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

An action of assumpsit, for use and occupation, can only be sustained, when founded upon a contract, express or implied.

It seems, at this day, to be well settled, that when a tenant for a term of years, or from year to year, holds over, without any new stipulations between the parties, he impliedly holds, subject to all the covenants in the lease, which are applicable to his new situation.

And in the absence of any new and express stipulations, and when the relation of landlord and tenant continues to exist, the law implies those terms, which are found in the contract, which has expired. 

COUNSEL:
GLENN, for the appellant, maintained:

1. That the action for an increased rent could not be maintained, because the notice to quit was defective.

2. That there could be no inference of a renting at a price beyond $ 600 per annum. There was no evidence of such a renting, nor circumstances from which it could be deduced.

3. That the proper remedy of the appellee, was debt, ejectment, or the summary method prescribed by the act of 1793, ch. 43.

On the 1st point he cited Soulsby vs. Neving, 9 East. 310.

On the 2d point he cited Ryan vs. Admr. of Marsh, 2 Nott and McCord, 156. Smith vs. Stewart, 6 John. 46. Stockett vs. Watkins, 2 Gill and John. 339. Featherstonhaugh vs. Bradshaw, 1 Wendell, 134.  [**9]  Wright vs. Darby and Bristow, 1 Term, 162. Doe Ex. Dem. Riggle vs. Bell, 5 Term, 472. Abeel vs. Radcliff, 15 John. 506, 507, 509. Bradley vs. Covel, 4 Cowen, 349. Digby vs. Atkinson, et al, 4 Camp. 275. Abeel vs. Radcliff, 13 John. 299. Woodfall, 660. Birch vs. Wright, 1 Term Rep. 378.

On the 3d point he cited 1 Chitty's Plea. 376, ed. of 1838.

GEORGE W. DOBBIN, for the appellee:

The action for use and occupation is intended to apply to all cases not inconsistent with the relation of landlord and tenant, where the contract is not under seal. The law will infer that relation from all the circumstances of the case. The action is founded on the idea of a benefit conferred by the landlord, and compensation due from the tenant. Com. L. and T. 6 Law Lib. 437. The terms of the statute which gives the action for use and occupation are liberally considered. When one party occupies by the sufferance of the other, an implied assumpsit is raised. In every case of permissive occupation not accompanied by circumstances denying the relation of landlord and tenant, that relation exists. Three things are necessary to maintain this action.

1. Occupation by the defendant.

2.  [**10]  Permission of the plaintiff.

3. Value of the premises occupied.

In the case at bar, the plaintiff shows occupation, and at every step contract appears. The defendant was insisting on his relation as tenant in every stage of the transaction. This relation is not always referred to a previous holding; for the purposes of the statute if the relation appears, it is enough. The value of the premises is open to the jury. Here the defendant commenced under a sealed lease, and ever after he recognizes his duty as tenant, and promises to pay rent. He pays rent. It is received under protest. No fact has occurred to disturb the right to resort to this form of action.

A tenant holding over is not necessarily a trespasser. He is tenant at sufferance. He came in lawfully. He holds over. His relation thus becomes equivocal. He gives the landlord an election. The election of considering him a tenant does not conclude him from suing in ejectment. Up to the time of the demise laid in ejectment, the landlord may recover for use and occupation. After holding over, use and occupation may be maintained.

A tenant may be warned off, and in case he does not depart, a contract may be implied [**11]  and resorted to. Birch vs. Wright, 1 Term, 387. Burchell vs. Hornsby, 1 Camp. 360. Cheny vs. Batten, Cowper, 246. If the relation is not impossible, the court will infer it.

When the relation is maintained in fact, then the question arises, to what sum is the appellee entitled?

The action is not brought for rent, as rent, but for reasonable satisfaction. A prior contract may be used as evidence upon the quantum of damages. Did then any agreement exist by which the jury should be regulated. The agreement may become the measure of damages. Our notice may perform that office, or the jury may determine it upon evidence. The argument on the other side erroneously supposes that the old lease must be followed in all its terms. This proposition is controverted.

A tenant holder is not necessarily a trespasser. Gwynn vs. Jones' Lessee, 2 G. and J. 173, 184. He may become a tenant at will. Dyer, 62.

I insist that holding over creates a tenancy similar to that which would result from the acts of the parties, as a payment of rent, or a permission from the landlord.

When after the old contract expires, it is only continued by some new act, or some omission showing its existence.  [**12]  It requires concert of both parties to renew by implication the expired contract. Right vs. Darby and Bristow, 1 Term Rep. 163. Messenger vs. Armstrong, 1 Term Rep. 55. Abeel vs. Radcliff, 15 John. 507. Bradley vs. Covel, 4 Cow. 350. Cheny vs. Batten, Cowper, 245. The tenancy was repudiated on the old terms, and it does not flow from the mere fact of holding over. The holding over merely creates a tenancy by sufferance. Jackson vs. Parkhurst et al, 5 John. 128. This may be put an end by landlord, and hence he may prescribe terms to the tenant, if he remains he adopts them. We simply claim the real value. This the jury gave us.  

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

OPINIONBY:
SPENCE 

OPINION:

 [*156]  SPENCE, Judge, delivered the opinion of the court.
The action of assumpsit, for use and occupation, can be sustained where it is based upon a contract either express or implied; and unless it be thus founded, it cannot be maintained. Birch vs. Wright, 1 Term. R. 387.

 [*157]  In the case now under consideration, the term created by the written agreement, was ended and determined on the 20th day of August, 1834,  [**13]  and De Young, the tenant, remained in the possession and enjoyment of the premises, from the expiration of the lease until some time in the month of May, 1835.
It seems at this day to be well settled law, that when a tenant for a term of years, or from year to year, holds over after the expiration of the term, without any new stipulations between the parties, he impliedly holds subject to all the covenants in the lease, which are applicable to his new situation. Digby vs. Atkinson and Another, 4 Camp. 275. Doe on demise of Riggs vs. Bell, 5 Term. R. 471. 13 John. 297.
If this be a correct view of the law, it follows as a necessary and unavoidable conclusion, that in the absence of any new and express stipulations in such cases, and where the relation of landlord and tenant does exist, the law will imply those terms, which are found in the contract which has expired.
We are thus brought to the inquiry whether the record in this cause furnishes any evidence of any new conditions or supplemental contract, which will ascertain and define the terms of the relation between these parties; for upon this proposition alone it must depend [**14]  whether the county court erred or not, in rejecting the defendant's prayer.
The material evidence in this cause, touching the terms and character of the relation between these parties, subsequent to the 20th of August, 1834, is to be found in the written correspondence of George H. Newman, the plaintiff's agent, bearing date the 20th July, 1834, and the defendant's answer thereto of the 30th of the same month and year. Newman, the agent of the plaintiff, in his note of the 20th July, 1834, uses this unequivocal language to De Young, the defendant: "Mrs. Buchanan [will] require you to give her possession of the property on the 21st of August next, when your lease expires, or pay her a rent of one thousand dollars 

 [*158]  per annum, in quarterly payments, from and after the above date." He requests a prompt answer to this note, and concludes as follows: "If I do not hear from you definitely, on or before the 31st inst. I shall advertise the property for rent on the 1st of August, and consider myself at liberty to lease it to any other person, without further reference to you." In reply to his note, De Young says: "I beg to state that the rent I pay at present,  [**15]  is fully equal to the value of the property, and as much as I, or any one else, can afford to pay at these times; as soon as they improve, I will be ready to treat with you about an increase of rent, but for the next year the rent will have to stand at its present price."
Is there one expression to be found in this correspondence, from which the human mind can deduce the most remote semblance of a contract, or agreement; it is nothing more or less than a demand on the one side that the rent shall be increased from $ 600 per annum, the former rent, to $ 1000, with a threat that the tenant will otherwise be turned out; with as prompt a declaration on the other side, that six hundred dollars is the value of the property, and as much as he could or would pay. We think the conclusion that there was not any new agreement, or contract, proved by this correspondence, is so clear, that no argument on our part can make it more plain.
It is admitted, and indeed the proof on the record shewing, that at the time the suit was brought no part of the six hundred dollars, the former rent, was in arrear; that the rent for the quarter ending the 20th of February, 1835, was then paid, and as this was [**16]  all the plaintiff would have been entitled to recover in this action, and under this proof, we are of the opinion the court below erred in not granting the defendant's prayer, and therefore reverse the judgment, with costs.
JUDGMENT REVERSED.  

8 of 47 DOCUMENTS 

HARRIS AND CHAUNCEY vs. ALCOCK----CHAPMAN AND ERSKINE vs. ALCOCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 226; 1838 Md. LEXIS 23 

December, 1838, Decided 

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

ON the 12th October, 1836, John W. Harris and William Chauncey filed their bill, alleging that at January term of said court, Benjamin Brady confessed a judgment in favour of Richard E. Alcock, in a certain fictitious action of assumpsit, instituted on the same day on which said judgment was confessed, for the purpose of obtaining the same by filing a declaration by consent of parties without issuing any process: that the declaration in the said action was for money had and received, and upon a promissory note for $ 20,000, but your orators charge that no sum of money was due from the said Brady to the said Alcock; that the note was drawn up on the day of the date of the rendition of the judgment, and was antedated; that no consideration for the said note at the time of making thereof, or at any other time, passed between the said Brady and Alcock, that it was made solely to serve as a cause of action upon which to found the said judgment; that it was confessed for $ 40,000, to be released upon payment of $ 20,000; that there was no legal claim upon which said judgment was founded, and could not have been obtained adversely,  [**2]  if resisted; that to induce Brady to confess the judgment, the said Alcock told him he wanted some security to show Alcock and Co. and Cartlidge, who were creditors of Brady, and induced the said Brady to believe that the said judgment was never to be put in force against him; that Brady said he was insolvent; that Alcock now pretends that the said note and judgment were in consideration of certain debts due to Samuel Alcock and Co., Charles Cartlidge, and him, the said Richard E. Alcock. This the complainants charge to be false, that nothing like $ 20,000 was due to all or either of those persons, and that of what was owing to said persons, a large portion was not then due and payable; that no statement of accounts was made between the said Brady and his said alleged creditors, to ascertain the sum due at the time of making said note; that no receipt was given by the said Alcock, as agent; or any document executed to show that said judgment was intended to cover said debts; that none of the evidences of the debt due from Brady held by said creditors were given up at the time of said judgment, but on the contrary, they were retained and protested for non-payment after the rendition [**3]  of said judgment; that the said judgment is no merger of said Brady's debts, and that said judgment represents a clear additional debt of $ 20,000, for which there was no consideration; that Brady was indebted to many other persons; that after the confession of the judgment Brady contracted various other debts for goods in New York, with the knowledge and consent of said Alcock, and particularly of your orators; that shortly after the goods so as aforesaid purchased, or pretended to be purchased in New York, arrived at the store of Brady, in Baltimore, the said Alcock fraudulently caused to be issued a writ of fieri facias, grounded upon the judgment so as aforesaid confessed without consideration, and under pretence of the said judgment, and by means of the said fi. fa. caused and procured the sheriff of Baltimore county, to levy upon, and sell all the goods, &c. in the said store contained, including those purchased, or pretended to have been purchased of your orators, and other persons in New York, with the knowledge and consent of the said Alcock; that at the time of the sale, Richard E. Alcock had full knowledge of all the before mentioned facts; that when complainants delivered [**4]  their goods to Brady, they were entirely ignorant of the said judgment and insolvency of Brady, and that the pretended sale of the goods by them to Brady is fraudulent and void; that Henry S. Sanderson being sheriff of Baltimore county, has received and now retains in his hands, the sum of $ 11,000, the proceeds of the property, so as aforesaid seized and sold, by force of the said fraudulent judgment and execution. They also charge that a certain Isaac Warren, a judgment creditor of the said Benjamin Brady, as he alleges, has caused a writ of fi. fa. to be issued out of Baltimore county court, against the goods and chattels of the said Brady, and claims that the said execution has been levied upon the same property so as aforesaid seized, &c. though complainants charge that the said last mentioned execution was not issued until after a large part of the said goods had been actually sold under the first execution; that neither Isaac Warren nor Richard E. Alcock, are citizens of the state of Maryland, and do not reside therein; that your orators are apprehensive, they, or one of them, will receive the said money from the said Sanderson, and withdraw it from the jurisdiction of the court,  [**5]  and out of the state, wherefore, &c. Prayer for subpoena against Richard E. Alcock, Henry S. Sanderson and Isaac Warren, order of publication against Alcock and Warren, as non-residents; that the judgment in favour of Alcock be vacated; that Sanderson be directed to pay the proceeds of sales into court; that the same be applied to the payment of the goods fraudulently obtained from your orators, and of their claims on said Brady, the residue in such manner as may be consonant to justice, and for further relief, &c.

The answer of Richard E. Alcock alleged it was true that Benjamin Brady did confess judgment to him at, &c.; that the proceedings were instituted on the day the judgment was confessed; that the declaration was filed by consent without issuing process, all of which he is informed is every day's practice of this court; that the declaration is truly stated in the bill; that the note was drawn on the day of the rendition of the judgment and was antedated; but he denies there was no sum of money due this defendant, by the said Brady, or that there was no consideration for the said note. This defendant says, that with the drawing of the said note, he had nothing to do; he [**6]  neither asked for it, nor advised its being given; and never even heard any thing of it until a few moments before it was handed to him, just prior to the confession of the judgment by his counsel, under whose conduct the whole proceedings in reference to said judgment was carried on, who seemed to think such a note desirable, and neither the said Brady objected to giving it, nor did this defendant know any reason why he should not take it. This defendant is informed by his counsel, that the said note was intended to serve as a cause of action, and as evidence of the debt, which the said Brady told his counsel was due. The defendant admits the judgment as alleged, denies there was no claim on which to found it; denies that he ever gave Brady to understand he would never take out execution on said judgment, or that he ever did any thing to induce the said Brady to give him the said judgment, further than to ask him for some security for the debt due those whom this defendant represented; that the said judgment was given in consequence of this application, and if there is any irregularity in the judgment, it arises from the fact, that the counsel employed was not thoroughly informed [**7]  of the nature of the debt; this defendant at that time had every confidence in the said Brady, and left it pretty much to him to give all the necessary information to the counsel employed and to decide upon the terms. The judgment was given wholly at the said Brady's instance, and every thing in regard to it was dictated by him; this defendant gave few or no instructions to the counsel engaged, save requesting him to have the matter arranged as soon as he could; this defendant denies that Brady informed him he was insolvent, or that he knew it. The defendant claims the judgment for debts due Samuel Alcock and Co., Charles Cartlidge and himself; this defendant avers that all the debts for which the said judgment was confessed, were due at the time of the confession of the said judgment, the promissory note on which the said judgment was confessed, being then due; he admits that of the amounts merged in the said note, $ 6,602 86, was not due before the time of taking said note; but he avers at the time of giving said note and judgment, said Brady agreed to consider this amount as due; he admits there was no statement of the account, because there was no difference between him and Brady [**8]  of the amount due; that he gave no receipt; that none was asked for; that most of the debt was due upon open account; that of those which had fallen due, Brady never asked for; that those which became due after the confession of the judgment, said Brady told this defendant to present at maturity, and that they should be paid as a part of the judgment; he denies that the judgment constitutes an additional debt against Brady; that he never heard of the purchases from persons in New York, save those Brady contemplated making of the complainants, and of those only in a casual conversation; but he did not know that Brady had bought of them. The answer then admitted the taking out of the execution on the judgment on the 11th May, 1836, but defendant does not know from whom the goods were purchased which were levied on; denies all fraud in the sale, so far as he is concerned, and insists that the property in the goods legally passed from complainants to said Brady; and finally, he insists that his judgment should not be vacated.

The answer of H. S. Sanderson, sheriff of Baltimore, declared his ignorance of the transactions leading to the judgment. He admitted the execution and its levy [**9]  on the goods found in Brady's store, and the public sale of them in due course of law, the proceeds being $ 8,622 98, and submits to such order as the court may take in the premises.

The answer of Isaac Warren admitted that he was a judgment creditor of Brady, that he caused an execution to be issued and levied upon his property; he denies that such execution was levied after the sale, under the execution of his co-defendant Alcock, upon the pretended and fraudulent judgment obtained by him against Brady, that on the contrary, that but a few of the articles first levied on had been sold under Alcock's execution at the time of his levy; that his execution is in all respects fair and lawful, and that he is entitled to be first paid out of the proceeds of the property.

Upon this state of the pleadings the parties went into proof of their respective allegations. The facts in dispute adopted by the appellate court are fully stated in the opinion of this court, and show how the questions of law arose.

A similar bill was filed on the same day by George Chapman and James P. Erskine, against the same defendants, but in addition, these complainants claimed under an assignment [**10]  from Benjamin Brady to them, dated 17th May, 1836, of the following terms, to wit:

This indenture made, &c. between Benjamin Brady of the first part, and George Chapman and James P. Erskine of the second part, witnesseth; that whereas the said Benjamin Brady hath heretofore sold divers goods to James S. Whiteman, &c. &c. and received payment therefor, and delivered part thereof, leaving a part thereof still undelivered; and whereas all that part of the said goods not delivered, have together with other goods, &c. been seized and taken by the sheriff of Baltimore county, under and by virtue of a writ of fieri facias, at the suit of Richard E. Alcock, against the said Brady, upon a judgment the validity of which may hereafter be contested; and whereas the said Brady is indebted to the said grantees and others, (enumerating a variety of creditors, and among others, Charles Cartlidge, towards the end of the enumeration,) and hath agreed to execute these presents for the purpose of securing the claims of the herein before named persons and creditors, in the order in which they are herein before named. Now this indenture witnesseth, that for and in consideration of the premises, the [**11]  said Benjamin Brady hath assigned to the said George Chapman and James P. Erskine, all the estate, &c. of him the said Benjamin, whether at law or in equity, of, in, to and out of the store No. 97 in Baltimore street, and all the goods therein contained, or to which the said Brady is entitled wherever the same may be, whether in the said store or elsewhere, that have been levied upon as aforesaid, to have and to hold for the following purposes; 1st. to secure the persons who have purchased goods from him, and had not received them though paid for, and to pay them and the said other creditors, in the order in which such purchasers and creditors are named. The deed then declared it should be lawful for any of the persons named as creditors aforesaid, to take in satisfaction of their claims, or so far as the same might extend, rated at the prices at which they were sold to the said Brady, the goods that may now remain unsold by the said Brady, that have heretofore been sold by such persons, and in like manner that the goods that may have been sold by said Brady to any person named as creditors aforesaid may be taken and held by such persons, or such parts thereof as may now specifically [**12]  remain; and it was also provided that said deed should in no wise be taken to prejudice any right independent thereof to such goods, and no person should be entitled to any actual benefit under this assignment, without a release executed to the said Brady, for all claim of such person intended to be covered thereby. This deed was duly acknowledged and recorded in Baltimore county court.

The authority from Samuel Alcock and Co. bore date the 5th March, 1835, and constituted Richard E. Alcock their attorney irrevocable, "for us and in our names and for our use and benefit, to ask, demand, sue for, recover and receive of and from all persons in the United States, and elsewhere, all and every sum or sums of money, debts, dues, goods, effects and things, which now are or is, or which at any time during the term of three years, shall become due, owing, payable, or belonging to us, and upon receipt thereof to give acquittances and discharges; also to settle accounts, pay or receive balances, and generally to do," &c.

And it appeared that by an act of Charles Cartlidge, dated 22d May, 1837, that he had authorized Richard E. Alcock to include his debt in the judgment confessed by [**13]  Brady, and that he ratified the proceedings of said Richard E. Alcock in the premises. Similar answers were filed, and that bill was submitted to the county court at the same time with the bill of John W. Harris and William Chauncey, and upon the same proof by agreement.

The county court (Archer, Ch. J. and Purviance, A. J.) decreed that the bills ought to be dismissed with costs, being of opinion that the judgment obtained by Alcock vs. Brady was founded on a valuable consideration, and was not fraudulent, and that R. Alcock would stand as a trustee for S. Alcock and Cartlidge, to the extent of their claims against Brady, which the judgment was taken to satisfy. The county court was further of opinion that the charge of the executions being fraudulent is not sufficiently sustained to entitle either of the complainants to relief.

From this decree the complainants appealed.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

If a party who has a judgment against another, fraudulently aids him in purchasing goods, in order that he may levy an execution upon them, or if the purchaser knowing himself to be insolvent, conceals that fact from the vendor, and has no intention when he obtains the goods to pay for them, in either case the title of the vendor would not be divested.

No inference of fraud can be drawn from the fact that one judgment is taken for three separate claims, the object being to place the creditors upon a footing of equality.

If a judgment be confessed upon a note professing to be for value received, and the creditors of the party confessing attempt to impeach the judgment, by showing that the note was not given for value, but fictitious, it is competent to those who have taken the judgment, to shew what was in fact the consideration for which the note was given.

A judgment operates as a merger, or extinguishment of the debt due the party in whose favour it is rendered--with regard to other parties, whose claims are designed to be secured by it, the judgment is a mere collateral security, and they are at liberty to prosecute any remedy at law, or equity, which was open to them prior to its rendition.

If a judgment be confessed to one, for the benefit of himself and some other creditors of the defendant, it is no objection to its validity, at the suit of other creditors who may be affected by it, that the trust does not appear upon the record. There is no principle which requires such an entry, or prohibits the proof of the trust by parol testimony.

The mere fact of issuing an execution for more than is due upon a judgment, does not per se render the execution void. It is by the quo animo that its validity is to be tested, and if issued bona fide it will avail the plaintiff to the extent of the debt remaining due.

Equitable interests in personal property, cannot at law, be seized and sold under a fieri facias.

A court of equity, however, will not set aside a sale of such an interest, but on the contrary, if applied to for the purpose, would decree a ratification of it, upon the principle that, that will be ratified when done, which the court, upon application, would order to be done.  

COUNSEL:
JAMES H. RAYMOND, for the appellants.

This was a bill in equity filed by the appellants, for the purpose of setting aside a judgment confessed by one Benjamin Brady, in favour of the defendant, now appellee, Alcock. The facts are--that on the fifth day of March, 1836, a note [**14]  was drawn by Brady in favour of Alcock, antedated the 15th February same year, (a copy of which will be found in the record,) for twenty thousand dollars, payable on demand. On the same fifth day of March, a judgment was confessed upon the said note. The bill alleges that this note and judgment were without any consideration, and that no money was due from Brady to Alcock. The answer of Alcock denies that there was "no consideration," but does not set up any consideration whatever specifically. The answer of Alcock to another bill filed by the appellee Warren is introduced into the record as evidence. It admits the facts as to the note and judgment above stated, as in fact the answer in this case does; but it sets up as the consideration certain debts alleged to have been due from Brady to Samuel Alcock and company, whose agent the defendant Alcock was, to Charles Cartlidge, and to Richard E. Alcock the appellee. A schedule of these claims was annexed to the answer to Warren's bill. It is not pretended that at the time of making the note, and confessing the judgment, any statement of these claims was made out, or that the notes, by which some of them were secured, were given up, or [**15]  that any evidence was furnished to Brady which might enable him in any way to connect those claims with the judgment he was about to confess. Indeed the contrary is explicitly admitted in the answer to the bill filed in this cause. The same answer admits that the sum of $ 6602 86-100, parcel of the said sum, was not due at the time of making the note, and confessing the judgment. On examining the schedule it will be observed, that $ 3854 18-100 is charged on the 4th March, the day before the judgment, and after the date of the antedated note--$ 1571 84-100 is charged on the 8th of January, not two months before the date of the judgment, and but little more than one from the date of the note, which by referring to the notes it will be seen, that the average credit on the dealings was four or five months. Two promissory notes dated earlier than the 8th January, and therefore not relating to either of the above mentioned transactions, were not due until after the date of the judgment, as will appear by reference to the notes. The claim of Charles Cartlidge, $ 3882 45-100, also mentioned in said schedule, was also not due, and when due was paid, as is admitted in the answer to Warren's [**16]  bill. So far was the judgment from being considered as covering the claims it is now alleged to have been intended to cover, that the notes of Brady were protested after the judgment was given, when upon the hypothesis of the appellants, they had ceased to exist. After the confession of the judgment, Brady went on to New York, where the appellants live, and purchased from them a large amount of goods, which were sent to him in Baltimore, and were seized, together with his whole stock in trade, upon the 11th of May, two months and six days after the date of the judgment. It is not pretended that the money paid on account of Cartlidge's claim was ever credited upon the judgment; on the contrary, the execution appears to have been issued for the original amount of the judgment. It is further to be remarked, that the power of attorney from S. Alcock and Co. to R. E. Alcock, only authorizes him to act in their name, and consequently not to take a judgment for their debt in his own. It is also worthy of note, that there is no evidence of any act, except that of taking the judgment, done by R. E. Alcock in his own name, for account S. Alcock and Co. It appears from Brady's deposition, and [**17]  also from a letter from Brady to Alcock, filed by Alcock, that it was with the concurrence of Richard E. Alcock, the appellee, that Brady purchased goods of the complainants and others in New York, after the date of the judgment, and before the execution. It also appears from a promissory note in favour of the appellants, that they were creditors of Brady on the said fifth day of March. It is also to be observed that for by far the greater part of the claims included in the schedule no vouchers whatever are produced.

It father appears from the testimony, that the property which was taken under the execution as the property of Brady, was under a mortgage to one Grundy, and that Brady had only an equitable interest therein.

Upon the above facts it will be contended on the part of the appellants--

1. That the judgment and note of the 5th March, are fraudulent and void under the 13 of Elizabeth, as being to the prejudice of creditors. On this point he cited: Dulaney vs. Hoffman, 7 G. and J. 170. De Forest vs. Bacon, 2 Conn. Rep. 633. Houston vs. Nowland, et al, 7 G. and J. 480. Joice and Wife vs. Taylor, 6 G. and J. 58. Watkins vs. Stockett, 6 H. and J. 435. 3 Co. 81. Butts [**18]  vs. Swaatmood, 2 Cowen, 432. Rob. on Fraud, 542. 1 Story Eq. 363. Wilder vs. Fondey, 4 Wendell 100, 106. Allison vs. Matthieu, 3 John. R. 235. Rossiter vs. Rossiter, 8 Wendell, 494. Turner vs. Plowden, 5 G. and J. 52.

2. That the said note and judgment represent a clear addition to the amount of Brady's debts, and do not merge any debt of his existing at that time, and are therefore prejudicial to his creditors, fraudulent and void. Birely and Holts vs. Staley, 5 G. and J. 432. Hammond vs. Ridgely, 5 H. and J. 280. Betts vs. Union Bank, 1 H. and G. 175. Adams vs. Paige, 7 Peck. 542. Bowers vs. State, 7 H. and J. 32.

3. That inasmuch as the claims of S. Alcock and Cartlidge are not at all referred to in the said note and judgment, which contains no evidence that he was a trustee for them, or either of them, the said judgment cannot be sustained on the ground of its being in trust for them.

4. That the execution is fraudulent as having been issued after the payment of Cartlidge's debt, even supposing that the judgment is not fraudulent.

5. That the purchase of the goods of the appellants by Brady, under all the circumstances of the case, was fraudulent and void, and [**19]  that the property of their said goods has never passed out of them. Durell vs. Haley, 1 Paige, 492. Martin vs. Martin, 23 Law Lib. 221. Allison vs. Matthieu, 3 John. Rep. 235.

6. That the property taken under the execution was not legally the property of Brady, and that equitable interests on personal property are not the subjects of an execution, and consequently that the execution in this case ought to be set aside. Harding vs. Stevenson, 6 H. and J. 264. McCombie vs. Davies, 7 East. 5. Scott vs. Schole, et al, 8 East. 476. Bailey vs. Burton, 8 Wend. 339, 346.

STEELE, for the appellee.

The controlling question is the existence of fraud in the judgment and execution. It is a question of fact. If we establish a bona fide debt, a bona fide confession to secure it, and no more, I do not suppose, this court upon the ground of an undeclared trust would deem the judgment fraudulent and set it aside, when these bills were filed, the only charge of fraud was on the score of a supposed conspiracy, or that Alcock had taken advantage of Brady, and then the complaint rested on the want of consideration. This related to both judgment and execution. The execution was only impeached [**20]  on the ground of fraud in the judgment. The answer to Warren's bill fully discloses the whole case.

The peculiar language of the answer is objected to. It follows the language of the bill, if that is objectionable so is the answer. But there is no obscurity in the whole answer. The answer was not excepted to: if a fuller answer was desired, another course should have been pursued.

The first question of fraud is under the statute of Elizabeth.

It is said these are conveyances giving an honest preference, and yet they may hinder and delay creditors. Conveyances on good consideration and bona fide, are excepted from the operation of the statute. A judgment is no unusual form of assurance to give a preference. Holbird vs. Anderson, 5 D. & E. 255.

If no lurking benefit to grantor, then it is bona fide when founded on a good consideration. Wheaton vs. Sexton, 4 Wheat. 507.

The facts show such a consideration, hence the bona fide character of the judgment. The evidence is found in the answer of Alcock, and prevails till overthrown. It insists that the debts are due. A schedule of them is exhibited with the proof.

Cartlidge's debt was agreed, subsequent to the [**21]  judgment, to be paid in instalments, and as paid to be credited. Two items of the schedule are confirmed by the production of Brady's notes. The debts due Alcock and Co. are impliedly admitted by Brady in his deposition. Those of Cartlidge are admitted, and Brady's letters establish that of R. E. Alcock. There is no evidence to question the amount of these debts. These facts, with Brady's silence at the time of the confession, establish the debt represented by R. E. Alcock. Here the counsel went into a more particular examination of the facts to corroborate the existence of the debt.

There was then a consideration for the note, and Alcock stood as a trustee for those interested in that consideration. Brady might have confessed a separate judgment to each of the parties. The agreement to confess the judgment being carried into execution by a trustee, does not make it fraudulent, especially in a court of equity, having peculiar jurisdiction over trustees to make them comply with their engagements. Brady had a right to pay through agents, then why not give security to an agent? He takes no more from the residue of his creditors, he gives no more to the preferred creditor by this [**22]  course. An act of Brady attended with the same results, cannot be valid in one form and fraudulent in another. The judgment is like a voluntary conveyance to preferred creditors. If the judgment is honest, and defective in form, this court will heal it. Aldridge and Higdon vs. Weems, 2 G. and J. 36.

There is nothing in the form of the preference.

A note given to one, may enure to the benefit of two, they being equitably interested in the consideration. Coursey vs. Baker, 7 H. and J. 28. Van Staphorst vs. Pearce, 4 Mass. 258, 263. 2 Kent Com. 623. Tolputt vs Wells, 1 Maul. and Sel. 395. Meux q. t. vs. Howell, 4 East. 10.

If Brady had contested the note at law, it could not have availed him.

Then as to effect of immaturity of a part of the debt, affecting the judgment in part. The statute of Elizabeth is silent on this head. That distinction does not prevail there. Creditors holding immature debts may come in under an assignment for benefit of creditors generally. 1 Esp. N. P. 130.

The diminution of future contingent liabilities, is a sufficient consideration to support a deed. Worsely, et al, vs. Demattos and Slader, 1 Burr, 474. United States vs. Hove, et al,  [**23]  3 Cranch, 73. Hendricks vs. Robinson, 2 J. C. R. 306. Here a certain, though immature liability, is a good consideration. Crawford and Selman vs. Taylor, 6 G. and J. 323, 334.

I consider the note here immaterial. It was only a part of the machinery which the attorney thought necessary as a part of the form of the confession.

Alcock was the agent of Cartlidge, of course his principal was bound by his act.

A trust results in favour of those whose funds are used in the purchase of property, whether real or personal. Perry vs. Head, 1 Mar. 47. 2 Vent. 366. Gascoigne vs. Thwing, 1 Vern. 366. Boyd vs. McLean and Wife, 1 J. C. R. 582. Jackson vs. Matsdorf, 11 J. R. 102. Foster vs. Jones, 1 McCord, 119.

It is said the execution is fraudulent, though the judgment is not. The amount for which the execution issued does not appear. The grounds of fraud are not stated to be that the execution issued for too much, and therefore fraudulent. The execution is not void in toto, but only irregular as to the excess. Wilder vs. Fondey, 4 Wendell, 100.

Now if the whole amount was not taken, as if only $ 8,000 is taken out of $ 17,000, no fraud in fact exists. Then the question would [**24]  be mistake or fraudulent intent? Alcock offered to stop the execution if the debt was secured. The execution issued without concert, and will cover what is really due. Hollingsworth vs. Floyd, 2 H. and G. 87. Rudd and Miller vs. Schlatter, 1 Littell, 19.

This bill is not for a general distribution, but each creditor is claiming his own, independent of all others.

An execution in the hands of the sheriff creates an equitable lien, a preference. Shirley vs. Watts, 3 Atk. 200. McDurmutt vs. Strong, et al, 4 J. C. R. 687. Hadden vs. Spader, 20 J. R. 554.

Those who defeat us must have a superior equity. They come in with notice of our claim and subordinate to it. Our claim and judgment in the view of the case, are both admitted. There was no collision in the original case. To recover they must show superior equity. Ingraham vs. Wheeler, 6 Connec. 277, 283. Atkinson and Rollins vs. Jordan, Ellis and Co. 5 Ohio Rep. 298. The King vs. Watson, 3 Price, 6. Austen vs. Bell, 20 John. 442, 449.

R. JOHNSON, for the appellee.

As to the validity of the deed of May, 1836, in favour of Chapman and Erskine, he said there was reservation of any surplus to the grantor. If it existed [**25]  it was by implication of law, and not in point of fact. A deed to create a preference must not be obnoxious on other grounds. We know that Brady is insolvent. That this deed conveys all his property. The proposition now to be examined is, whether it be competent for a debtor to strip himself of his whole property, in order to make a provision for the payment of particular debts, and require a release from the creditors preferred, whether the fund provided is adequate or not for the payment of the entire debt? The deed requires that the creditor to be benefited, must execute a release of the whole debt. Such a deed is void as to all creditors. The vice which destroys it, must exist with it. Does it not hinder and delay from the day of its execution, all creditors, as well those provided for, as those not? If it creates delay from the period of execution, it cannot be confirmed--set up by matter ex post facto. This inherent objection is independent of the objection from creditors. The statute acts on the conveyance. If the deed proves, establishes per se, that a creditor can have no advantage from it unless he does an act, as execute a full release, which the debtor has no right to exact,  [**26]  then it is void. Here an acquittance is claimed as a condition precedent. If void as to those provided for, it is void as to all.

Under the sixth point of the appellant, it is insisted that the property is not liable to execution. In this question, the court is to assume that Brady acquired the property honestly; that the judgment is valid, and the debt covered by it due, either in the whole or in part. It is said the execution will be vacated, because the defendant had an equitable, and not a legal title in the property levied on. Now the bill does not proceed on such ground. It makes no such issue which is fatal to this objection. It is not remedied by the act of 1832. Can this court reverse on a ground which forms no part of the complainants' equity? Again, if the bill took this ground, there is no evidence to support it. The fact alleged is a prior mortgage by Brady upon the property seized. Now there is no evidence of the mortgage in the record, and the complainants cannot rely on the parol evidence of the mortgagor that he made such an instrument. The mortgage should be here to show its extent and character. But in such matters the basis of fact should be well laid. The [**27]  property was found in the possession of Brady, against whom the execution issued. The person having the legal estate is not a party contesting the right of the plaintiff below to make the levy he did, though advised of the fact. Then the execution proceeds. The property is sold, and is now in court for distribution. Whether strictly liable or not is immaterial. It has been levied on, and it is not competent for other creditors to object to the distribution of the sales in payment of Alcock's debt. The proper course was to move to set aside the execution. The ground relied on here might have availed, on motion, at the return of the writ, and now after a motion then made and decided, they urge it here. There was a competent remedy at law.

The fifth point alleges no property in Brady: yet other points insist he had a right to convey. There is no evidence that Brady, at the time of his purchase, did not intend to pay, nor to impeach the sale to him. They have made Brady a witness, and the goods are his with reference to all the world.

The other points present but one question, constructive fraud and fraud in point of fact. Fraud in fact is not to be presumed. The answer he denies.  [**28]  Proof of two witnesses is necessary to establish. It is founded on the charge that nothing was due Richard E. Alcock. The objection impliedly admits that something was due to his principals. They offer no proof to rebut this implication. The proof is conclusive that the whole object of the confession was to obtain a security for a debt which subsequently fell due. We may show by parol evidence the persons really interested. A debtor may prefer any creditor. There was then a debt due. If so, no fraud either in the intention or the object.

Is the judgment a nullity, because of the statute of 13 Elizabeth, ch. 5. This only applies to judgments confessed with a fraudulent intent. He who seeks to avoid it must show a want of bona fide in the obtention of the judgment. If the fraudulent intent be wanting, the judgment cannot be vacated. Then as to fraud in issuing an execution for the whole, a part being paid. Wilder vs. Fondey, 4 Wendell, 100 to 105.

Such an issue of an execution is only evidence of fraud. If no fraudulent intent in fact, the objection is answered.

H. D. EVANS, in reply:

The statute of 13 Eliz. is the polar star which directs the argument in this cause.  [**29]  It will be found in Rob. on Frauds, 1 to 4. We both agree that a conveyance made on a good consideration and in good faith is valid. Both must unite. We deny this judgment was confessed in good faith.

The third point raises the question whether there was any such trust for S. Alcock and Co. as will validate this judgment. Now if Richard Alcock, the plaintiff below, should get possession of Brady's property under the judgment, and squander it, and Brady still remain liable to S. A. and Co. then no consideration has passed from them which entitles them to look to the judgment. If a man confesses a judgment where he owes not a cent, being indebted to other persons, this of itself is a fraud and void. Then to come nearer to this claim, a judgment is confessed for $ 15,000, upon a claim of $ 5,000, this is a fraud. The effect on the creditor of the insolvent defendant is the same, whether such a judgment be for a greater or lesser sum. What is void in part for fraud is altogether void.

This judgment is attempted to be bolstered up by a resulting trust. This arises, if at all, from a consideration paid by cestui que trust, to whom a trust results. The principle is, that he who [**30]  parts with a consideration should enjoy the benefit. A resulting trust may be proved by parol. But the question here is, did any consideration pass from S. A. and Co. Have they lost any thing by the transaction? There is no merger in this case. A judgment in favor of Richard Alcock does not merge their debt. They have given no release. Richard Alcock has given none.

A release is not usual between parties. But when third parties are to be released, the release should appear, and unless some means of discharging Brady against the claim of Samuel Alcock and Co. is found as a fact in this cause, they have lost nothing. This transaction then shows no consideration consistent with honesty and good faith, which enables S. A. and Co. to retain rights as judgment creditors. There is no declaration of the use, nor of a trust. An entry of the judgment for their use would be an equitable declaration of the trust. The counsel who took the judgment knew not what the nature of the debt, nor the extent of S. A. and Co. and Cartlidge's claims. There was no statement, no release, no knowledge of the claim. The judgment is then a clear addition of $ 20,000 to Brady's liabilities. This is a fraud [**31]  on his creditors, and the confession of the judgment by Brady was not bona fide. Coursey vs. Baker, 7 H. and J. 28.

Richard Alcock's power shows what he might transact in his own name, but when he settled the account, and received its amount, he was to act in the name of his principal. He settled no account, and leaves no evidence by which the transaction appears to have been conducted by him as agent. He clothes himself with the property of his employer, and leaves no trace of his right. In this judgment there was neither consideration nor good faith, neither in fact nor in law. Such a judgment, under such circumstances, reaching far beyond the real rights of the parties, must hinder and delay creditors. How can Brady's creditors defend themselves against this judgment.

To create a fictitious judgment is a fraud. Neither a declared trust, nor a resulting trust can aid it. A consideration which contradicts the judgment cannot be set up. The consideration should have been declared by writing, and not by parol. Evidence to explain the judgment is not admissible. 5 G. and J. 456.

This principle even applies to promissory notes. There may be a resulting trust by agreement,  [**32]  and the proceeds of notes, applied between third persons. As between original parties such contracts are valid. The question here is against creditors. Adams vs. Paige, 7 Peck, 547, 48, 50. This case illustrates the effect of the creditor not being under an obligation to release the debt for which the judgment was confessed. Subsequent facts shed light on such transactions. Have the parties subsequently acted as if they had released? These creditors took the ordinary means of collecting the notes previously given. They were not considered as having been merged by the judgment.

A debt not due may constitute the consideration of a trust. We complain of the fact, that a right was given by execution to enforce a large amount not due. This is not an act of good faith in reference to third parties.

A fraudulent execution may exist on a valid judgment--as where part has been paid. Wilder vs. Fondey, 4 Wend. 105.

Under the bill of Chapman and Erskine, the fifth point is not applicable, but the deed to them cannot be impeached under the statute of Elizabeth. That deed can only be vacated by creditors who were hindered or delayed, and Richard E. Alcock, the only party here, is [**33]  not a creditor, neither is he hindered or delayed by it. It is in proof that he is not a creditor. The doctrine of preferences is established and maintained, except in cases of insolvency. Every debtor has a right to prefer certain creditors. The deed of May, 1836, without the clause of release, is a mere preference made in favour of the enumerated creditors. On the ground of preference it cannot be impeached. Does the clause of release affect the validity of the deed? Does it injure the preferred creditor? It only gives him an opportunity of being paid by taking under a conveyance from the benefit of which he was otherwise cut off. It required no act from Richard E. Alcock. It demanded no release from him. It took nothing from him. Did him no injury: and we contend that on no ground can he complain of it. If the preferred creditors refused the deed, that act augments the balance beneficially for the others.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*246]  DORSEY, Judge, delivered the opinion of the court.
The case of Harris and Chauncey vs. Alcock, and Chapman and Erskine vs. the same defendant, resting [**34]  for the most part on the same questions of law and fact, and under the opinion of the court sharing the same fate, they will be considered and disposed of together, as if forming but one case. The question which, in its natural order, first presents itself, is, did the property in the merchandise mentioned in the complainants' bill, as sold to Brady, pass out of the complainants, under the circumstances attending the sale?
It is insisted that it did not, upon two grounds.
First, because Alcock fraudulently aided and assisted Brady in making the purchase, with a view of levying an execution thereon as soon as it should arrive in the city of Baltimore.
Secondly, because Brady, at the time of the purchase, knew himself to be insolvent, concealed this fact from the complainants, and when he obtained the goods, did not intend to pay for them.
Either of these grounds, if established, would have entitled the complainants to relief. But, unfortunately for them, the proof in the record sustains neither of these, their pretensions, no such fraud as that imputed to either Alcock or Brady has been sustained by the testimony, and the right of property in [**35]  the goods vested upon their sale and delivery.
The next ground upon which the appellants assert their right to relief, is, that the judgment confessed by Brady to Richard E. Alcock, is fraudulent and void, and in support of this assertion, they insist, that if the design of the judgment was as is alleged, to obtain by way of judgment, security for the debts due by Brady to Richard E. Alcock, Samuel Alcock and Co. and Cartlidge, that a separate judgment would have been confessed to each creditor for the amount due to him; and that the omission to pursue that course, is evidence of a fraudulent design.

 [*247]  Is the inference warranted by the facts and circumstances under which the judgment before us was rendered, is the question we are to consider? Richard E. Alcock, we assume, was the authorized agent of Samuel Alcock and Co. and Charles Cartlidge, in obtaining the judgment designed to secure the debts due to himself, and his principals. His design doubtless was, it ought to have been, so to arrange the matter, that each of the three creditors should come in pari passu, in reaping the benefits to be derived from the security about to be taken,  [**36]  for the preservation of their claims. So far from the mode adopted to carry out the design, being any evidence of fraud, it is strong evidence that the agent intended to act with perfect fairness and justice in the transaction; nay, it is the only mode in which he could have done so, consistently with his duty to himself and his principals. If, as has been suggested, he had obtained a separate judgment for each creditor, that mutuality and perfect equality of benefits, which was in the contemplation of the parties, would in all human probability have been frustrated; a field would have been opened for a race of diligence between three judgment creditors, which would have operated injuriously to Brady, and was never contemplated by him or his creditors to whom the security was to be given. In taking the one judgment instead of the three suggested, Alcock acted in good faith both towards his principals and Brady; and their other creditors, in this respect, have no right to complain of the course which has been pursued.
It is also contended that, the judgment is fraudulent and void as against the other creditors of Brady, because the note of $ 20,000, on which it was [**37]  rendered, was not given for a debt bona fide due from Brady to Alcock, and that this fact being established, the note is thereby impeached for fraud, and it is incompetent to offer testimony to sustain it by showing that it was given in part for a debt to Alcock, and for the residue on account of debts due by Brady to Charles Cartlidge and to Samuel Alcock and Co. The sole object of the note as is satisfactorily shewn by the proof in the record, was to facilitate 

 [*248]  the entry of the judgment, which Brady had agreed to confess, as a security for the three debts referred to, which debts, by the testimony admitted in the cause, coupled with the confession of the judgment, we think are sufficiently established. The note upon its face, does not in terms say, that it was given for a debt due from Brady to Alcock, but simply promises to pay Richard E. Alcock the sum of $ 20,000 for value received; as respects its validity it is wholly immaterial whether the note was given for a debt due to Alcock alone, or was given to him as the authorized agent of Cartlidge and Samuel Alcock and Co. (of which authority we think the record [**38]  furnishes sufficient proof) for the purpose of obtaining the judgment rendered to secure the payment of their debts. But it is insisted in behalf of the appellants, that the testimony offered by the appellee, in relation to the judgment and note on which it is founded, is inadmissible, because you cannot offer evidence to add to or contradict a deed, much less can you do so in relation to a record, which is of much greater solemnity; no evidence was adduced to add to or contradict the record. It was not offered to prove that the judgment was not rendered on the promissory note, and thus impeach the verity of the record; but the appellants having offered evidence to contradict the statement in the note, that it was given for value received, and alleging that it was wholly fictitious, without consideration, and fraudulent; the appellee, in perfect consistency with both note and judgment, offered the evidence on his part, to show that the transaction was bona fide, and not fictitious, without consideration and fraudulent, as was alleged; and to do this, he offered proof, not contradicting the note, not showing a different consideration from that expressed in it, but showing what in [**39]  point of fact was the value received, which the note upon its face alleged to have been the consideration for which it was given. There surely on this point is no analogy between the case before us and that of Betts and wife vs. the Union Bank of Maryland, 1 Har. and Gill, 175, and the other like cases which have been cited, where the testimony objected to, was adduced to 

 [*249]  prove a consideration of an entirely different nature from that expressed in the deed.
It is further urged, that the judgment is fraudulent and void against the other creditors of Brady, because the debts, to secure the payment of which it was given, were not merged in the judgment, nor were releases or receipts given therefor. There is no weight in this objection. The judgment did operate as a merger or extinguishment of the debt due to Richard E. Alcock. After its rendition he could prosecute no suit upon his original cause of action. But as respects the claims of Cartlidge and Samuel Alcock and Co. it was no merger or extinguishment, but a mere collateral security for the payment thereof, and did not impair the rights of those creditors to prosecute any remedy at law, or in [**40]  equity, which previous to the judgment they might have sustained. It is, however, wholly immaterial whether the judgment was an extinguishment of those claims or not, or was a mere collateral security for their payment, in neither event should such receipts or acquittances have been given.
The appellants also insist, that the judgment is fraudulent and void against the other creditors of Brady, because it adds a new debt of $ 20,000 to those already owing, in as much as it did not extinguish the claims on account of which it was entered, and no releases or discharges being given therefor, payment might be enforced both of the amount of the judgment and of the claims for which it was given. But the conclusion which has been drawn, is not warranted by the premises; the payment of both cannot be enforced. By satisfying the judgment, the claims are extinguished, and by discharging the claims, the judgment was paid, neither Brady nor his creditors could have proved for what debts it was rendered. Brady well knew for what debts the judgment was entered as a security, and his omission to take some written evidence thereof, or to provide some means of proving the same, would not [**41]  make fraudulent and void a judgment, in all other respects unimpeachable.

 [*250]  This court must pronounce the law upon the facts as they appear in the record, and cannot set aside a judgment as fraudulent, all the facts and circumstances in relation to which being proved, shew it to be otherwise, merely because the means of obtaining such proof in some future case may not be within the reach of the party complainant. But the difficulty apprehended is not insurmountable, a bill of discovery will readily remove it.
There is no foundation for the impeachment of this judgment, on the ground that if Alcock were to receive and waste the amount due thereon, the debts due to Cartlidge and Samuel Alcock and Co. would still remain in full force against Brady, such receipt by Alcock works the immediate extinguishment of those debts, and no subsequent misapplication of it can ever revive them; nor is there more weight due to the objection raised by the appellants' counsel, that the trust upon which Alcock holds the judgment, ought to have appeared upon the record, and cannot be proved by parol. There is no principle of law which requires such an entry upon the record,  [**42]  or prohibits the proof of such a trust by oral testimony. The cases referred to in the argument rest entirely on the express provision of the statute of frauds, and have no bearing upon the question on which they were cited.
From an attentive examination and consideration of all the evidence introduced into the record, we are satisfied that there was no fraud in the judgment rendered, or the means used in obtaining it.
The next point on which the appellants claim a reversal of this decree is, that the execution is fraudulent, as having been issued after the payment of Cartlidge's debt; even supposing that the judgment is not fraudulent, execution issued for the whole amount of the judgment, the payment made of Cartlidge's debt, not being endorsed thereon, as it should have been. The simple fact of issuing an execution for more than is due on a judgment, does not per se render the execution fraudulent and void. It is by the quo animo with which it issued, that its validity is to be tested, if issued with a 

 [*251]  fraudulent intent it is void, but if issued bona fide it is not void, and will be available to the plaintiff to the extent of the debt remaining [**43]  due on the judgment. Hollingsworth's adm'r vs. Floyd, et al, 2 Har. and Gill, 87, and Rudd and Miller vs. Schlatter and Gilman, 1 Litt. 19. There is nothing in the record from which any fraudulent design could be imputed to the appellee, in issuing the execution complained of. The proof in the cause repels all idea of collusion between him and the defendant, the appellants therefore are entitled to no relief on the ground of fraud in issuing the execution.
The last point raised by the appellants is, that the property taken under the execution was not legally the property of Brady, and that equitable interests in personal property are not the subjects of an execution, and consequently, that the execution in this case ought to be set aside. With the appellants' premises on this point as legal propositions, we see no reason to find fault, but to his consequence or conclusion as regards the exercise of the authority of a court of equity, we must be permitted to object.
It cannot be denied as a legal principle, that a debtor's equitable estate in personal property cannot at law be seized and sold under a fieri facias. The usual mode by which a creditor [**44]  pursues such interests of his debtor, and makes them available for the payment of his debt, is to issue a fi. fa. and place it in the hands of the sheriff, and cause it to be levied or returned, thus showing that his remedy at law has failed; by which acts of diligence he acquires in the eye of a court of equity, a priority of right, or preference to the debtor's interest in the property, from the time his execution was placed in the hands of the sheriff, and upon application to a court of equity, he will be permitted to come in and redeem the prior incumbrance, and have a decree for the sale of the property thus disencumbered, for the payment as well of the amount of the incumbrance, as of the execution debt; or as is a more proper course of proceeding, he will obtain a decree without any clause of redemption for a sale of the absolute property; first to pay off the incumbrance, and then the creditors' 

 [*252]  execution. The property levied on in the case under consideration, is wholly inadequate to pay the appellees, the preferred creditors' debt. The appellants, therefore, have no right to ask a court of equity to set aside the proceedings under the execution; they have [**45]  no interest in the subject matter; courts of equity never interfere to set aside proceedings at law, but at the instance of those whose interests are affected by them.
But there is another ground upon which such interference should be refused. A court of equity will always ratify and confirm that when done, which as a matter of course, if previously applied to, it would have ordered to be done. If after the levy and before the sale under the execution in question, the court had been called on by the appellee, to decree the sale of the property seized under the execution, the relief asked for would have been unhesitatingly granted. The sale then having been made by the appropriate legal officer, so far from setting aside the proceedings under the execution, the court if applied to for that purpose, had it been necessary, would have decreed the ratification of the sale which had been made. Upon this, the last point of the appellants, see the cases of Venable and McDonald vs. the Bank of the United States, 2 Peters 107, and McDermott vs. Strong, 4 Johns. Ch. 691.
The views which we have already expressed upon the points raised by the appellants, render [**46]  it unnecessary for us to examine or decide the objections to several of those points suggested by the appellee, upon the pleadings and issues, &c. in the cause, or to determine the question as to the validity of the deed to Chapman and Erskine, under the statute of Elizabeth.
The decrees of the county court in the cases of Harris and Chauncey vs. Alcock, and Chapman and Erskine vs. Alcock and others, are affirmed with costs in this court and the court below.
DECREE AFFIRMED.  

9 of 47 DOCUMENTS 

GEORGE T. DUNBAR, SPECIAL BAIL OF J. AND W. DUNBAR, vs. THOMAS CONWAY, SURVIVOR OF WILLIAM DRURY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 92; 1839 Md. LEXIS 32 

December, 1839, Decided 

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

On the 12th October 1837, the appellee sued out a writ of scire facias, reciting, that at a county court at, &c., on 1st September 1836, the appellant became bail, and pledge, &c., for J. and W. Dunbar, and that judgment was rendered against them on the 2nd January 1837, &c. At the return term of this writ, January 1838, the appellant appeared, and pleaded nul tiel record. The appellee replied there was such a record, on which issue was joined. The cause was then continued until May term 1838, when the appellant withdrew his plea, and confessed judgment, and a fiat was ordered by the court 2nd May 1838. At the following September term 1838, the appellant moved to be exonerated from his bail, the principal defendants being here in court, and the bail tendering costs.

The plaintiff admitted the facts, and annexed to his admission the following statement:

"In this case, a scire facias was issued against the bail to "last January term, and at May term a fiat was obtained, and "the plaintiffs counsel contends, that the principal can only "be surrendered in discharge of bail during the actual sittings "of the court at the May term."

The [**2]  county court overruled the motion for an exoneretur.

The defendant Dunbar, then filed his exceptions to the overruling of his motion, and the following statement:

"The facts of the above cause are as follows: That a suit was brought by the plaintiff, against the defendants James and William Dunbar, to September term 1836, at which term the said George T. Dunbar came into court, and became the special bail of said defendants in said suit; that at January 1837, of said court, the plaintiff obtained judgment in said suit against the said J. and W. Dunbar, for $ 625.36; that in June 1837, a ca. sa. was issued on said judgment, returnable to September term, which at said term was returned by the sheriff, non sunt. The plaintiff then issued a scire facias against the said George T. Dunbar, the special bail, returnable to January term 1838, which was at said term returned, made known, and an appearance entered for the special bail, and at May term 1838, a fiat nisi was entered on said scire facias. That Baltimore county court at said term, adjourned on the 7th day of July; that on the first day of September, and before the said court, for the said term, was called after the calling [**3]  of the May term, and when counsel were called upon po know if they had entries to make as of the May term, the counsel of the special bail brought the principals into court, and offered to surrender the principals in discharge of the bail, and moved to have the bail discharged, tendering the costs, to which motion the plaintiff's counsel objected, on the ground, that the offer and motion came too late."

It is agreed, that the following is a rule of Baltimore county court, regulating the practice of the city business.

4th. "The principal may be surrendered in discharge of his special bail, upon payment of costs, at any time during the term at which a fiat shall be finally entered, and whenever a scire facias is returned scire faci, or a second scire facias is returned nihil, there shall be a fiat, unless the defendant in such scire facias shall appear in person or by attorney during that term."

But the court (ARCHER, C. J., and PURVIANCE, A. J.,) being of opinion, that the uniform practice under said rule has been, that the bail may be discharged by surrender of his principal upon payment of costs, at any time during the sitting of the court, to which the scire facias [**4]  against the bail is returnable, and before the jury is discharged, and that the privilege was not considered as extending to an adjourned court, or to the day to which the term should be adjourned over, it being the constant practice, to adjourn the term over to the morning of the court in course, after the business of the term is finished--determined, that it was too late to offer to surrender said principal.

The defendant excepted, and brought the cause to this court by appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Under the act of 1828, ch. 161, it is the privilege of bail in Baltimore County Court, to surrender his principal, in his own discharge, at any time during the term, at which the fiat is finally entered; and this privilege extends to an adjourned term, although such term is held on the day at which the succeeding term is to commence.

A legitimate rule of court, prescribes a law to the court itself, to which it is required to conform; and any error of opinion, in respect either to its legal effect, or to its application to a particular case, will entitle the party injured to redress by appeal, provided the decision is final, and there is no other objection to the appeal.  

COUNSEL:
By GLENN and MCMAHON for the appellants, and

By W. F. GILES for the appellee.  

JUDGES:
The appeal was argued before BUCHANAN, C. J., STEPHEN, DORSEY, CHAMBERS, and SPENCE, J.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*94]  CHAMBERS, J., delivered the opinion of this court.
Prior to the act of 1828, ch. 161, the time at which a surrender of the principal could be made, so as to discharge the bail, was regulated by the rules of court in Baltimore, as it still is in the other county courts of the State. By the rule of the Baltimore court, the bail could only claim this privilege, at any time before the discharge of the jury at the term when the sci. fa. was returned [**5]  scire faci, or the second sci. fa. returned nihil. Whatever might be the duration of the term, he could not surrender the principal after that period. Not because by the rule the term was considered as then at an end; but because the rule had selected this, as the proper period of the term, at which to limit the privilege.
In some of the courts, the first four days of the term was the limit. In others, the privilege extended during the continuous session, but not to an adjourned session of the same term, and in others not at such adjourned session, without the particular and special order of the court, after hearing the facts.
The law of 1828, was designed chiefly to expedite suits, and enable claimants to obtain more speedily, judgments against debtors. The result of the practice which it introduced, was to enable a plaintiff to obtain his judgment; sue out his capias 

 [*95]  ad satisfaciendum, and obtain a return to his scire facias, against the bail, in five months, whereas by the former practice, it required two years. By the 10th section of the act, it is provided, that the bail shall have the privilege of surrendering the principal during the term [**6]  at which the fiat may be entered; the rule of the Baltimore county court regulating city practice has been altered, and made strictly to conform to this act; and now allows the surrender "at any time during the term at which a fiat shall be finally entered." That the act of Assembly designed to extend the time for the advantage of the bail seems clear, from the provision which authorises the surrender at any time before a fiat entered, or even during the term after a fiat; whereas before the act, upon the return of the first writ, it being regularly served on the bail, if he appeared to the scire facias, he could claim no such privilege after the expiration of the period limited by the rules of court, although the judgment of fiat would not regularly be entered for two terms thereafter. So that in virtue of the act, the bail has in this particular predicament of his case, two terms beyond the period before allowed him, within which to produce his principal. The act of Assembly, and the rule of court, having each allowed the bail to bring in the principal at any time during the term, "it would seem only to be necessary to decide what is the term," and when [**7]  does it end? It is not denied, nor indeed can it be, that for other purposes the term, e. g. the May term, continues until it is adjourned sine die. The adjournment of the court, de die in diem, no more makes the session appropriately the same term, than the adjournment for two days, for a week, or a month. The term may last until the next (e. g. the September term) commences, after which the court, if held, must be held as of the September term, because the act of Assembly so demands. Hence the necessity of the particular provisions in this act, that if a particular cause was yet in a course of trial, when the succeeding term was commenced, it might be finished as if the preceding term had continued.
The counsel for the appellee has relied on two grounds, to 

 [*96]  make this an exception to the doctrine, which recognizes the last hour of an adjourned court as much a part of the term as the first.
The first ground is, that the act of 1828, which extended this indulgence to the bail by its terms, limited the last day, (and of course, as he rightly contends, the last hour of of that day,) to which the term could be extended. It would be difficult to avoid [**8]  this conclusion, in the case he assumes.
If the law peremptorily requires that the term, say the May term, shall end on the last day of August, it could not be adjourned to the first day of September, and no act done on that day, could be considered as done within the legal period of the term. It is not necessary to decide how far this may have been the case, while the act of Assembly or that part of it was in force, which did in terms limit the period to which the session might be adjourned. It is not confessedly repealed, and the existing law by which the terms of the court are prescribed, does not designate any particular day at which the May term must end. It directs a day on which the next or September term shall commence; but it does not follow, that therefore the May term cannot be held at any earlier hour of the same day--on the contrary we are justified in saying, there is not a court in the State, in which the constant and uniform practice does not establish the directly opposite opinion. The next ground relied on, is the practice of the court of Baltimore under this rule, as stated in the exception. The constant practice of this court, will [**9]  be found to conform in respect to the duration of the term, to all the other courts in the State, for in the exception, we find the following as part of the courts "opinion," "it being the constant practice to adjourn the term over to the morning of the court in course." The court do assign as the reason of this opinion, their belief, that "the uniform practice, under their late rule has been, that the principal may be discharged by surrender of his bail, upon payment of costs, at any time during the sitting of the court, to which the scire facias against the bail is returnable, and before the jury is discharged." This practice, as we have seen, will in a 

 [*97]  particular case of frequent occurrence, limit the indulgence granted the bail by the express words, and as far as we can perceive, the clear intent of the act of 1828, so far as to require him to bring in the principal, two terms earlier than that act requires, and it professes to designate a particular portion of the term during which the principal shall not be surrendered; whereas, the very words of the act of Assembly, and of the rule of court are, that it may be done at any time during the term--and [**10]  this, not because for the reason urged by the counsel, the excluded portion is not a part of the term, but because it is that part of the term occurring after the discharge of the jury. Doubtless the court said correctly, that the practice had been to bring in the principal before the jury was discharged, and it is well accounted for. The old rule required it, and had existed long enough to be generally known. The same practice though not necessary, was prudent under the new rule; and the court do not assert, that until this case they had ever before, since the act of 1828, refused to receive a surrender at any period of the term. We can only add, that if such appeared to be the case, we could not recognize such a practice under the circumstances of this case, as sufficient to repeal, as we think it would, to a great extent, the positive and plain provision of the act of Assembly.
The counsel for the appellee, without relying on the point, has suggested for consideration, whether on the authority of Carroll vs. Barber, 7 H. & J. 454, an appeal will lie in this case. The distinction between the two cases is obvious. There the direction of the court below was appealed [**11]  to, by a party who asked for an extension of the rule, not for its application--here the objection is, that the court refused to do an act, not depending on an admitted discretion, but required by the peremptory terms, as well of the act of Assembly, as of the rule of court. This court has always regarded a legitimate rule of court, as prescribing a law to the court. The proper office of such a rule, is to establish fixed and settled practice, to which the court is required to conform, and any error of opinion in respect either to its legal effect, or to its application 

 [*98]  to a particular case, will entitle the party injured to redress by appeal, as for error in the construction or application of any rule of the statute or common law; it being of course implied, that the decision is final, and that no other objection could be taken, which would prevent an appeal in any case. Vide 1 H. & J. 513, 524--6 H. & J. 272.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

10 of 47 DOCUMENTS 

THE MARYLAND INSURANCE COMPANY vs. JOSEPH S. BOSSIERE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 121; 1837 Md. LEXIS 21 

December, 1837, Decided 

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

This was an action of Covenant, brought by the appellee on the 23d September, 1833, against the appellants. The declaration was for a total loss. The defendants pleaded that they had not broken their covenant, and filed the following agreement with the plaintiff.

It is agreed that under the plea of non infregit conventionem, filed in this cause, the defendants may rely upon any or all of the following defences:

1. That the policy in question did not attach.

2. That the order for insurance given by the plaintiff, through his agent, Henry Thompson, and the policy made by the defendants in pursuance thereof, constitute the contract, which applies only to a voyage commencing at St. Andreas, after the first day of February, 1831.

3. That if the policy did attach, the underwriters have been discharged by the deviation of the vessel.

4. That the plaintiff, to recover a verdict, must establish the identity of the voyage made by the vessel, with the voyage indicated in the contract with the defendants, arising from the order for insurance, and the policy.

5. That there has been no proof of loss and adjustment thereof, such [**2]  as is required by the policy in question, and that these are indispensably preliminary to any action brought to recover such a loss as is claimed in this action.

At the trial of this cause, the plaintiff, to support the issue on his part, gave in evidence a policy of insurance, viz:--"By the Maryland Insurance Company, (No. 12,895.) Whereas, Henry Thompson, as per order, doth make insurance, and cause himself to be insured, lost or not lost, at and from St. Andreas, with liberty of two other ports on the Spanish main, and at and from any of them to Baltimore, upon all kinds of lawful goods and merchandises, laden or to be laden on board the good schooner called the Argonaut, whereof is master for the present voyage, Maginney, or whosoever shall go for master in the said vessel--beginning the adventure upon the said lawful goods and merchandises from and immediately following the loading thereof, on board of said vessel at St. Andreas aforesaid, and so shall continue and endure until the said goods and merchandises shall be safely landed at Baltimore aforesaid; and it shall and may be lawful for the said vessel, in her voyage, to proceed and sail to, touch and stay at, any ports [**3]  or places, if thereunto obliged by stress of weather or other unavoidable accident, without prejudice to this insurance. Touching the adventures and perils which we, the assurers are contented to bear and take upon us in this voyage; they are, of the seas, &c. And in case of loss, the same will be paid in ninety days after proof and adjustment thereof; the amount of the note given for the premium, if unpaid, being first deducted. In witness whereof, the Maryland Insurance Company have, by their president, subscribed the sum insured, and caused their common seal to be annexed to these presents, in Baltimore, the fourth day of April, one thousand eight hundred and thirty-one.

And also proved the order therein referred to as follows: memorandum, &c.

"4,500 dollars insurance is wanted on cargo of schooner Argonaut, Captain Maginney, at and from St. Andreas, with liberty of two other ports on the Spanish main, and at and from any of them to Baltimore, with a return for each port not used. Captain Drinkwater, of the schooner Desiah, arrived here a few days since from San Blas, and reports that the Argonaut sailed from San Blas for St. Andreas, about the middle of February, to trade,  [**4]  which is the latest account received of her proceedings.     HENRY THOMPSON.

4th April.--3 1/2 per cent. to return 3/4 per cent. for each port on the main not used.

Agreed, for whom it may concern.     H. T.

Also, the following deposition,--"Be it remembered, that on this 8th day of November, 1834, at the city of Baltimore, before me, personally appeared Robert S. Upshur, witness for the plaintiff, in a certain civil cause now depending in Baltimore county court, wherein Joseph S. Bossiere is plaintiff, and The Maryland Insurance Company is defendant--and deposeth and saith, that he was on board the schooner Argonaut, on her voyage from Baltimore to the Spanish main, in the fall of the year, 1830. She arrived at Porto Bello, on that coast,--in that port she discharged part of her cargo; how much, he cannot say, but remembers that some soap was landed. She left that place, sailed along the coast, touched at several places at which she landed articles and received money in pay for them, returned her course until off Porto Bello--did not enter, but landed some cargo there, and received money for it. From Porto Bello proceeded to Chagres, laid there two or three days,  [**5]  discharged some cargo, and received money in pay for it; from Chagres proceeded to San Blas coast, put in at San Blas, discharged one hundred barrels of tobacco for safe keeping, proceeded thence for St. Andreas--on her passage the vessel sprung a leak--took out some cargo at St. Andreas to discover the leak,--found and stopped it; cargo was sold, landed, and money received in pay for part of it, but does know that it was for all. From St. Andreas, proceeded to the Spanish coast or main,--on this passage the vessel sprang a leak the second time, and upon consultation, it was thought wisest to go into Bocotoro, and heave her out, which was done--this happened on Sunday. The cargo being all discharged for that object, she was then caulked, and the leak was properly stopped, and then cargo was taken again on board, and she proceeded to San Blas,--on her passage thither, deponent saw the town of Chagres on fire--touched no where on this passage before she entered San Blas--laid in this port one day and night,--in the morning, very early, got under way,--where bound, deponent did not understand rightly--but after getting pretty well clear of the land, found themselves among breakers, where [**6]  they were capsized--the cargo had shifted, and the vessel was completely useless--the wind and current set on shore, and they drifted on shore in that condition--it was about one hour before day-light when she struck, and bilged directly; we set all hands to work to save what we could--secured some cargo, and a trunk that contained some money--the amount this deponent does not know--the trunk was delivered into the care of the captain and mate, the supercargo having been drowned when the vessel was capsized--the trunk that contained the money was stolen from under the mate's head, and deponent saw, in the morning, some of the money scattered on the ground near the tent from which the money was stolen--the amount about seven or eight dollars; he does not know by whom the trunk was stolen--the tent was surrounded by the natives, who stole much of the cargo that had been saved or landed; deponent went and searched for the trunk in a swamp close by, but in vain. The natives showed so much hostility towards deponent and the crew generally, that they concluded that it was necessary to their own safety to depart--and they accordingly made the best of their way home. Deponent remembers that [**7]  there was some tortoise shell on board the vessel when she was lost, and he recollects that they took some money on board at the first port at which they stopped, but does not know whether it was the custom or course of trade to take money or shells on board as returns of previous voyages, his station in the employ not having given him the opportunity of gaining such information. The cargo that was taken out at St. Andreas, but not sold, was replaced on board--he does not recollect the taking any tortoise shell on board,--it could not be taken on board without his knowing it;--he was absent on shore sometimes, however, and articles might have been brought on board without his knowing the fact. They had not convenient place to heave out at St. Andreas to repair; when the leak was attended to at St. Andreas, it was completely stopped; he does not recollect whether the second leak occurred in the same part or place--they had not reached the Spanish coast when it happened; at the consultation, Bocotoro was considered the nearest and best place at which the vessel could be repaired. On quitting San Blas, before the vessel capsized, her course was homewards, being the same as if bound to [**8]  St. Andreas; but he does not know her then destination. The trunk saved, that contained money, he thought from its weight, must have had several thousand dollars in it.

Also, the following commission and return, viz: &c.

[The reporters do not insert the evidence taken under this commission, because evidence of a similar tendency will be found in the other proof of the plaintiff, and because the commission in consequence of the substitution of the name of Torquil Bowie (by the alcalde who administered the oaths at San Andreas to the commissioners who acted,) for the name of Duncan Bowie which was in the commission when it issued from Baltimore county court, was rejected as inadmissible by this court.]

The plaintiff then called Edward Maginney, by whom he gave evidence, that he sailed from Baltimore as master of the schooner Argonaut, in November, 1830,--that he visited several places on the Spanish main, and arrived at St. Andreas, in December, 1830, or January, 1831, having sprung a leak on his passage from Chagres thither:--that, in order to repair the leak, he took out the cargo from the forward part of the vessel, removed as much as he could to the deck, landed [**9]  the remainder, consisting of dry goods, one dozen chairs, three boxes shoes;--ascertained that the whole of the cargo was in good order. The leak having been repaired, the cargo was re-laden under the deck, including what had been landed, except a portion which had been sold, comprising the chairs and a small part of the shoes, and part of the dry goods. A quantity of merchandise, bullion and specie, that is, gold dust, old gold, specie, tortoise shell and cocoa, which had not been before on board the vessel were laden on board. There is no custom-house at St. Andreas. After a few days stay at St. Andreas, the vessel sailed for Cordea to trade, on nearing the place of her destination she sprung a leak; she then entered Cordea, for the purpose of inspecting the leak, and getting provisions and water.--There examined the leak,--found that it was such as it was impossible to repair without heaving down, which could not be done there. Remained there no longer than was necessary to examine the leak, and chink it with oakum; left that place without trading, and keeping constant watch over the leak, sailed for Boco del Toro, the only place on the coast where there were any facilities for [**10]  heaving down. Arrived there in about two days;--took out the cargo, loaded it on board Captain Humphrey's vessel, then in port, hove the Argonaut down, repaired her, reladed the cargo, which was then all found to be in good order, and immediately thereafter, on the third day from their arrival, set sail for Cordea upon their voyage, having gone to Boco del Toro for no other purpose than repair, and having remained there no longer than was necessary for that purpose, and not having traded, but paid for the repairs in money; on her arrival at Cordea they entered upon the business of the voyage, which the leak had before prevented them from attending to. Took in cocoa, tortoise shell, tobacco and specie, the tobacco having been landed there for the purposes of trade, when at the same place, previous to going to St. Andreas, and having remained there until now, when received on board the vessel. After a short stay at Cordea sailed for home, about eighteen miles from land and before she had shaped her course, or got clear of the reefs in the neighbourhood of the point of St. Blas, the vessel by a heavy sea capsized, all hands washed overboard, the supercargo drowned and the papers lost.  [**11]  After drifting twenty-three hours, struck, bilged and went to pieces, in spite of all exertions of the captain and crew. The cargo was lost, with the exception of a few articles of the value of about five hundred dollars. The witness picked up out of the sea, at the time of the wreck, a letter of instructions from the plaintiff to Mr. Bowie, the supercargo. The Argonaut sailed from Baltimore on a voyage to the Spanish main, and before her arrival at St. Andreas as aforesaid, had visited numerous ports and places of trade on the main;--had discharged two-thirds of the outward cargo, and taken in nearly the whole of the homeward cargo, consisting of specie, gold and silver plate, cocoa, tortoise shell and gold dust, in pursuance of a necessary and invariable practice pursued by all traders who visit that country; to whom, as well as to all who have any knowledge of the trade, it is well known, that a cargo cannot be obtained at one, two, or three ports. The practice being to commence collecting the outward cargo at the first port of discharge, and to continue collecting it by way of trade or barter, at every place visited during the voyage, which are frequently very numerous, as also,  [**12]  to leave parts of the cargo in the hands of agents for sale at different ports and places, and to return and to collect the proceeds, thus using twelve or more ports on a voyage, and frequently the same port two or three times before completing the collecting of the cargo. The witness identified the following, as the letter of instructions picked up by him out of the sea at the time of the wreck, viz:

MR. JAMES D. BOWIE:     Baltimore, Nov. 20, 1830.

SIR,--You will proceed in the schooner Argonaut, Captain Maginney, to Porto Bello direct; there take your license for the coast, and sell all you can to the best advantage: from thence proceed to Chagres; lay off and on, and obtain all information you can relative to your business and the schooner George; make all the sales you can, and should you find it to my interest to send the George home direct from Chagres, by chartering her or loading her with hides on my account, do so; if not, insist on the captain's obtaining a license, and proceed with her immediately to San Blas, to load with cocoa nuts. You will render every assistance in your power with the Argonaut, to effect her loading, and despatch her as soon as possible.  [**13]  You have no occasion to be in the least fearful of any of the cruisers, shew your white signal and you will be known. After having despatched the George, and disposing of your tobacco, you will proceed in the Argonaut for the islands; land the articles for Coln. Crofton and your family, and sell any thing that you have left to the best advantage. Should you have disposed of the tobacco, and while the George is obtaining her cocoa-nuts, you can run over to the islands and endeavour to obtain as much cotton as you can, to fill up the George, or for her deck load.

Should you be able to sail within a month from the Spanish main after the schooner George, you will take out of her all that she may have on board exceeding 2,400 dollars; remit bills of lading and invoice of the amount you will expect to bring home, valuing the articles the value in Baltimore.

J. S. B."

The plaintiff then called     Penniman, by whom he gave evidence that the above mentioned letter of instructions which Maginney had picked up out of the sea, is in his handwriting, and signed by the plaintiff, and is the original letter of instructions from the plaintiff to the supercargo of the Argonaut, and [**14]  that he (the witness) was, at the time of the date thereof, clerk to the plaintiff. The plaintiff then called Henry Thompson, and gave in evidence by him, that he was the agent of the plaintiff in effecting the insurance, that he communicated with the defendants by means of the order above set forth, having no verbal communication with them. The report appended to the order relative to the Argonaut, was read by him in a paper, he presumes a Baltimore paper. After the loss he called on the president of the company, on or about the twenty-fifth of April, eighteen hundred and thirty-one, and communicated the fact of the loss to him: his reply was, they were not upon the risk at the time she was lost. They always resisted the payment on that ground. Had some communication with defendants during the summer, in July, what it was he does not know; but they always resisted the payment, expressing no desire to see any evidence, but resisting payment from the beginning as not upon the risk. The protest was left with the Baltimore Insurance Office, who were on the vessel on the twenty-fifth of April, and in July transferred to the Maryland Office, according to the usage of insurance offices in [**15]  Baltimore. He supposes that it was not sooner transferred on account of some great neglect in the secretary of the Baltimore Office, whose duty it was, according to usage, to transfer it. Upon reflection the witness stated, that he thought it probable, that the reason the protest was not sent to the Maryland Office was, the conversation above mentioned with the president of that office. On the next day the same witness was again examined, when he said that he had been thinking about the report. Is decidedly under the impression he saw it in a newspaper. Is perfectly satisfied he read the report in a newspaper. The reason that induces him to be positive is, that one morning he told the plaintiff that the Argonaut had sailed from St. Blas; that it was a good time to get insured; that he would not pay the notes for the outward cargo unless she was insured. Bossiere did not want to insure. Is as satisfied as possible that he derived Drinkwater's report from a newspaper. Though his memory sometimes fails him as to facts, he is not imaginative, nor does his memory supply him with facts which have had no existence. Mr. Thompson on the third day of the trial, stated, that he had not been able [**16]  to find the paper, that therefore, notwithstanding the strength of his impression that he had read it in a paper, it was possible he might have got it from Mr. Guerin, a brother-in-law of the plaintiff, who was frequently at his counting-house, and communicated to him information respecting the Spanish main--that he confided in the truth of the report, or he would not have put it in the order, that is, he was confident that there was such a report in existence; he does not mean to say that he believed the facts stated in the report, as he knew nothing of Captain Drinkwater. He places the same confidence in the report now as he then did, and communicated the report in pursuance of the duty devolved upon him as agent for the plaintiff, of communicating the last accounts of the vessel, true or false. Mr. Thompson stated that he had considerable information of the course of trade on the Spanish main. That it is the custom to take in cargo at various ports along the coast, leaving cargo in return, and to commence the collection of the homeward cargo at the first port of discharge, and continue it throughout the voyage. The plaintiff also gave evidence by William B. Barney, that he, the [**17]  witness, read to Captain Bossiere, in the spring of eighteen hundred and thirty-one, a report of the Argonaut's sailing from some place, made by a Captain Drinkwater of the Desiree; that he recollects the circumstance particularly, from his calling Captain Bossiere's attention to it, as he had the paper in his hand near the exchange buildings. That he had not recalled the circumstance until he was asked by Mr. Bossiere, about a week ago, whether he had not made such a communication to him. That he does not recollect the name of the paper, thinks if he were to hear it he would recollect it,--it was published upon the Point. Upon "The Wreath" being mentioned, he stated that that was the paper.

The plaintiff also gave evidence by Samuel Thompson, that he, the witness, had been three voyages upon the Spanish main; he does not know whether there is a custom-house at St. Andreas. There was certainly none, and no custom-house inspection when he was there in eighteen hundred and twenty-seven? He was clerk of the vessel; the papers were in his possession; he did not deliver any of them to any body, neither bill of lading, nor invoice, nor any paper left the vessel. The course of trade [**18]  is to begin to collect the cargo at the first port of discharge, the homeward cargo could not be collected at two or three ports.

The plaintiff also gave evidence by John W. Greetham, that he had been two voyages to the Spanish main, one six months, the other longer; supercargo both times; commenced collecting homeward cargo as soon as sales were made; met other vessels frequently; as far as he observed, they collected the homeward cargo the same way he did, it is the custom of the coast to load the cargo in this manner; this was an usual and necessary custom; the trader could not calculate on finding a cargo at three ports. A vessel could not collect a cargo without going round; at any one place could not get a cargo, nor at two or three; might use a dozen or twenty ports and return once or perhaps twice.

The defendants, to support the issue on their part, then called Thomas Chappell and gave evidence by him, that he had been four voyages to the Spanish main, not since 1826, does not know whether there is a custom-house at St. Andreas or not. Has been on the coast of St. Blas,--the trade is done by agents, who have small assortments left with them; on the vessel's return [**19]  to the coast she finds the proceeds ready for her; any surplus unsalable cargo, he leaves on the coast on his return home.

The defendants also gave evidence by Christian Mayer, that the custom of insurance on the Spanish main, is to port or ports, as in ordinary cases; the risk in this case commenced at St. Andreas, with liberty of two ports; knows of no custom which would determine the loading to take place before her arrival at St. Andreas; knows of no usage peculiar to this trade; has no knowledge of the trade except as an underwriter; a cargo on this voyage is collected as on other voyages; knows nothing to the contrary of the cargoes being collected at several ports, commencing to be laden at the first port of discharge, and continued at every port during the voyage.

The defendants further gave evidence by Dr. Schwartz, that he is acquainted with the trade as an underwriter, thinks that this policy would attach upon cargo taken in at St. Andreas, or any other of the ports in the policy, and on no other. Knows of no custom in this or any other trade, by which the policy would attach on cargo laden at any other port than those specified in the policy. Vessels from the [**20]  United States generally make the voyage in four or four and a half months, unless the vessel is large. From the policy and order he would think that the inception of the risk was from the loading of the goods at St. Andreas. He has no knowledge of the trade but as an underwriter. Understands that cargo is disposed of, and returns collected from the inception of the voyage, at each port that the vessel arrives at; that it is collected in small portions at the different ports and stopping places; that there is a scramble for cargo from the beginning of the voyage. Construing the order, he should deem that the construction of the order was, that the cargo was disposed of at the ports mentioned in the policy, and the goods collected there. Insurance in this trade is generally upon time, which has been the case for three or four years antecedent to this date.

The defendants further gave evidence by John G. Chappell, that he has never been on the coast, but has traded there by his agents. Now insures for time; thinks he began in eighteen hundred twenty-six or twenty-seven, but may be wrong as to the time. Average length of the voyage is from four to five months; has known longer and [**21]  shorter. The liberty of going from port to port was largely asked for when insurance was not on time. Does not know any custom by which the policy is determined to have attached on goods laden before the arrival of the vessel at the first port in the policy; thinks it is the custom to begin to collect the cargo at the first port of discharge, and to continue at all the other ports during the voyage.

The defendants also gave in evidence a translation of the protest, which was admitted to be a true translation, and is inserted in a subsequent part of this bill of exceptions.

The defendants having objected to the reading of the testimony taken under the commission issued in this case to the island of St. Andreas, the plaintiff gave evidence by Hugh Davey Evans, one of his counsel, that he, the said Evans, applied to David Stewart, Esquire, one of the counsel for the defendants, to issue a commission by consent, to take testimony at St. Andreas; that Mr. Stewart refused so to do, and told him he must issue his commission adversely. That thereupon he consulted his client, filed his interrogatories, and named his commissioners; that through some mistake which he cannot explain,  [**22]  Duncan Bowie was of the names inserted in the list; that the plaintiff and himself both knew that Duncan Bowie was dead, he being the supercargo of the Argonaut, and drowned at the time she was wrecked; that the person who was intended, was the governor or principal person of the island, the father of Duncan Bowie, whose name he now understands to be Torquil Bowie. The plaintiff also gave evidence by other witnesses, that Torquil Bowie, by whom the commission was executed, was the governor or principal magistrate of the island of St. Andreas, and that there was no person on the island of the name of Duncan Bowie. The court then permitted the commission to be read to the jury. The defendant excepted.

Whereupon the defendants, to sustain the issue on their part, proved by Henry Thompson, that he was the agent of the plaintiff, in effecting the policy in question, as well as the policy of the Argonaut out and home, and the policy on the cargo out to one port only; that the plaintiff was so satisfied with the safety of the voyage, that, as the premiums were high, he would insure the cargo out only, but when he was going to the West Indies, at the instance of the witness, he insured [**23]  the homeward cargo by this policy. The vessel was insured out and home, at the Baltimore Insurance Office. The plaintiff, at the time the order for insurance in this case was given, was the owner of vessel and cargo.

The defendant further proved by the same witness, that on reflection, since his examination by the plaintiff, he believes it possible, that he may have derived the information as to the departure of the schooner Argonaut from St. Blas, given in the order for insurance, from Mr. Guerin, the brother-in-law of the plaintiff, who was in the habit of communicating to the witness the intelligence he might receive from the main, as he, Guerin, expected to go out to the main the next voyage. He, Guerin had been there on two or three voyages. The defendant further proved by the same witness, that he did confide in the report of Captain Drinkwater, as stated in the order for insurance, and made his insurance on the faith of it, and that he did believe that the Argonaut had sailed from St. Blas for St. Andreas, as set forth in the statement, and information given in the order for insurance, and that he placed implicit confidence in the report, or would not have put it into the [**24]  order. The witness further stated, that he always gives all the information in his power to the underwriters, whether for or against the application. The defendants then proved, by the testimony of Christian Mayer and Augustus J. Schwartz, the presidents of the Neptune and American Insurance Companies, of the city of Baltimore, and each of whom had enjoyed a long experience, as underwriters, with the business of Baltimore, that if an order for insurance, dated April 4th, 1831, was stated to be designed to cover a risk commencing at St. Andreas, on the 7th of January, 1831, the vessel would be considered a missing vessel, and would be regarded, unquestionably, as out of time, and the underwriter would decline the risk; and the defendant further proved by the same witnesses, that, according to the usage among underwriters, the whole of the order for insurance now shewn to him, (being the order upon which the policy in question was effected,) is considered together, and would influence the judgment of underwriters as to the risk, and the amount of the premium to be charged for it; they would act upon the whole paper as one order. The defendant then proved by John G. Chappell, that he [**25]  is a merchant, and has been engaged in the trade to the Spanish main since the year 1823, or 1824, that he has knowledge of the usages of underwriters. In the year 1826, or 1827, he commenced insuring by policies on time; previously thereto, he had insured at New York on time, because premiums of insurance were so high in Baltimore. The average voyages to the main, out and home, are from four to five months; he has had them longer and shorter. Antecedently to effecting insurance on time, when he wished insurance on a trading voyage to the main, he asked for the liberty of ports and places between two designated points, in the most comprehensive language he could employ, and for the liberty to use them as often as he thought proper, without being held thereby to have committed a deviation.

The defendant then offered in evidence the protest of the Argonaut, made at the city of Porto Bello, on the 25th February, 1831.

And proved that the same was lodged in the defendants' office on the 26th day of July, 1831, and then gave in evidence the following letter of the plaintiff.

"WALLACE, Esq.

Pres't of Md. Ins. Co.     BALT. April 3, 1831.

SIR,--I beg leave to request [**26]  an examination of the enclosed deposition, &c. I forbear to make any comments, leaving it to the judgment and well known integrity of the gentlemen directing that institution to do me justice. I will be happy, at any time, to explain as far as I can, and produce the papers alluded to in the deposition, whenever the board or yourself choose to call for them.

With consideration, I remain yours,     J. S. BOSSIERE."

And the ex parte deposition of Captain Maginney, enclosed in said letter.

"City of Baltimore, to wit: Before the subscriber, a justice of the peace in and for said city, personally and voluntarily appeared Edward Maginney, and he being sworn on the Holy Evangely, did depose and say, that he sailed, from Baltimore, master of the schooner Argonaut, on or about the seventeenth day of November last, (1830,) for Porto Bello, on the Spanish main, where he arrived about the fifth of December following; from thence he sailed about the eighth of the same month, (having taken thence a license to trade on the Mosquito and Darien coasts,) to Gold river, from that river he returned to Porto Bello; on or about the twelfth of same month, he sailed from Porto Bello to San [**27]  Blas, where he arrived the day after, he stopped there about twenty-four hours, and then sailed for Chagres, from whence, after several days stay, he returned to San Blas; remaining there twelve hours, he sailed thence to St. Andreas, where he arrived on or about the twenty-seventh day of same month, (December,) from St. Andreas deponent returned to San Blas, some time in January following, and, after remaining at St. Blas trading until the fourteenth day of February following, on which day he left that place to return to St. Andreas, on his way to the United States of North America; but on the fifteenth day of the same, (February, 1831,) while on the way from San Blas to St. Andreas, was struck by a heavy squall, at the same time that a heavy sea striking the schooner on the beam capsized her. The men were all thrown into the sea, but saved themselves by swimming and clinging to the wreck, with the exception of the supercargo, Mr. Bowie, who was drowned. In this state, deponent and his crew drifted with the vessel to the shore, at a place called Tump, thirty miles from Porto Bello. Deponent there made an endeavour to save the cargo, but, while so employed, a number of armed soldiers,  [**28]  and from the town of Halauen, peasantry, attacked and plundered them. Deponent being unable to resist the outrage, went, on foot, with one of his crew to Porto Bello, and complained to the mayor of that place, who sent an order to the magistrates of Palama to put a stop to the outrage, and punish the offenders, and return the property. But, as the magistrates themselves had been engaged in the plunder of the goods, the only effect of this order was, to put a stop to the open and violent character of the robbery, which continued to be carried on with more secrecy, but in such a way, however, as to be evident to every body. A small quantity of goods and gold, all that could be saved from such rapacity, was carried to Porto Bello, and there sold by the mayor of that place, as appears by the account sales rendered by him, and brought on to Baltimore by this deponent.     EDWARD MAGINNEY."

Evidence was then offered of the value of the goods on board the Argonaut, at the port of their shipment:

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

"1. That the order for insurance, in this case, was calculated to [**29]  induce in the defendants a belief that the voyage for which the goods mentioned in the policy was asked to be insured, was a voyage at and from St. Andreas, with liberty of two other ports on the Spanish main, and at and from any of them to Baltimore; to commence about the middle of February, 1831, or a short time thereafter; that said order being expressly referred to in the policy, is thereby made a part of it, and that both together form the contract between the parties, according to the true construction of which, the voyage thereby intended to be insured, was the voyage just described, to commence, as aforesaid, about the middle of February, 1831, or a short time thereafter, which intention governs the contract; and there being no proof in the cause, that the voyage, in which the loss occurred, and for which this action is brought, did commence at that time, but, on the contrary, the only proof being, that said voyage commenced the latter end of December, 1830, or beginning of January, 1831, the risk insured by the policy in this case never had an inception, and the jury are consequently bound to find their verdict for the defendants.

"2. That the order for insurance in this [**30]  cause, being expressly referred to in the policy, is thereby made a part of it, and that both together form the contract between the parties; that the fact stated in said order, that the Argonaut sailed from St. Blas for St. Andreas about the middle of February, to trade, constitutes a warranty that the said schooner was to commence the voyage insured by said policy, not sooner than the middle of February aforesaid, and that the only proof in the cause being, that the voyage in which the loss occurred, and for which this action is brought, did commence the latter end of December, 1830, or beginning of January, 1831, the said warranty has not been complied with, and the jury are consequently bound to find their verdict for the defendants.

"3. That assuming the policy in this case, to cover the voyage proved by the evidence in the cause to have commenced at St. Andreas, the latter part of December, 1830, or beginning of January, 1831, the said policy only attached upon the homeward cargo, actually laden as such on board said schooner, either at St. Andreas or Cordea, and that, therefore, the plaintiff is not entitled to recover for any part of the goods and merchandise which were [**31]  actually on board said schooner at the time of her arrival at St. Andreas, even though the jury shall believe, that part of said goods and merchandise were landed at St. Andreas, and put again on board said schooner before her departure from that place, in the manner given in evidence by the plaintiff.

"4. That the insurance in this cause being at and from St. Andreas, with liberty of two other ports on the Spanish main and Baltimore, if the jury believe that said schooner sailed on said voyage from St. Andreas and proceeded to Cordea, from thence proceeded to Boco del Toro, and afterwards returned to Cordea; that, in so returning to Cordea, there was a deviation which vitiated the policy, and discharged the defendants therefrom, unless the jury shall believe that the sole and only motive for going to Boco del Toro was for repairs indispensably necessary for the schooner's immediate safety, and which could not be made at Cordea.

"5. That the insurance in this cause being at and from St. Andreas, with liberty of two other ports on the Spanish main and Baltimore, if the jury believe that said schooner sailed on said voyage from St. Andreas and proceeded to Cordea; from thence [**32]  proceeded to Boco del Toro, and afterwards returned to Cordea, that, in so returning to Cordea, there was a deviation which vitiated the policy, and discharged the defendants therefrom, even though the sole and only motive for going to Boco del Toro was for repairs, if the jury believe that said schooner, when she sailed from St. Andreas on said voyage, was unseaworthy.

"6. That the order for insurance in this cause is, in law, a represention that the Argonaut, the vessel insured, had sailed from St. Blas, for St. Andreas about the middle of the preceding month of February, to trade, and if the jury believe that the said vessel did not sail according to said representation, then the same is falsified, and the plaintiff is not entitled to recover, unless the jury shall believe that the fact so represented was not material to the risks insured against, and that the plaintiff did receive the information stated in said order, as it is so stated either directly or indirectly from Captain Drinkwater, and that he confided in its truth.

"7. That in estimating the partial loss, if any, in this case, the jury are bound to estimate the goods covered by the policy, at their value at [**33]  the places where they were shipped respectively, and not their value at Baltimore.

"8. That the court direct the jury, that the policy in this case did not cover or attach upon the tobacco taken on board at Cordea, after the arrival of the schooner at that place from Boco del Toro, as given in evidence by the plaintiff.

"9. The defendants pray the court to instruct the jury, that if they believe that the amount of the partial loss in this case, could not be ascertained from any papers or documents, submitted by the plaintiff to the defendants, the plaintiff is not entitled to interest upon any amount of partial loss which the jury may find by their verdict." Refused, but granted with this qualification. "Unless the jury shall also believe, and shall so find from the evidence, that the failure by the plaintiff, or by his agent, to submit papers or documents to the defendants, showing the amount of partial loss was occasioned by a rejection by the defendants of the claim of the plaintiff, not on account of the non-production of such papers and documents by the plaintiff, but merely because the defendants contended that the policy had not attached at the time the vessel was [**34]  lost, and upon that ground alone, refused to pay any loss, in which last event the plaintiff is absolved from the operation of any stipulation in the policy which might have barred him from recovering interest, and his right of action accrued immediately upon such refusal of the defendants to pay any loss, and he is therefore entitled to recover interest from the date of such refusal."

And the court (Magruder, J.) accordingly gave the prayers, Nos. 3, 4, 5 and 7.

But refused to give the prayers, Nos. 1, 2, 6, 8, 9.

And the defendants, by their counsel, prayed leave to except to such refusal.

And the plaintiff on his part prayed leave to except to the instructions of the court, granted as herein before mentioned, at the instance of the defendants, see defendants' prayers, Nos. 3, 4, 5 and 6.

And the plaintiff thereupon, after all the above testimony had been given, as stated in the defendants' bill of exceptions, by his counsel, moved the court to give to the jury the following instructions.

"1. That the order for insurance given in evidence in this cause, does not contain a warranty of any fact whatever, that the statement appended to the order, and relied [**35]  on as a warranty by the counsel for the defendant, is merely a representation annexed to the order, that such a report as is therein mentioned had been made, and if the jury believe that the said representation was made with a bona fide intention of communicating to the assurers all information of the knowledge of the assured, and was in fact a true statement of a fact which had come to the knowledge of the assured, then such representation is sufficiently complied with.

"2. That the true construction of the statement appended to the order, is not that the voyage insured was to commence about the middle of February, or shortly afterwards, or at any other time, and that, even if regarded as a warranty included in the policy, it has no such import, on the contrary, that whether regarded as a representation or warranty, it only imports, that the Argonaut had been reported in the manner therein stated, as having sailed from St. Blas to St. Andreas, and not that the report was true.

"3. That the order being for an insurance at and from St. Andreas, without mention therein of the place of lading the goods, an insurance upon a cargo laden only at St. Andreas, is not an insurance [**36]  agreeable to, or consistent with the order, and the order being incorporated as a clause in the policy, and being a written clause, overrules and controls the printed clause relative to the insurance being upon goods laden at St. Andreas, and there was consequently no necessity for lading any portion of the cargo there, for the purpose of giving an inception to the risk.

"4. That the order being for an insurance at and from St. Andreas, without any mention therein of the place of lading the goods, if the jury should believe that the usage of the trade was not to take in the cargo at St. Andreas, an insurance upon a cargo laden only at St. Andreas, is not an insurance agreeable to, or consistent with the order, and the order being incorporated as a clause in the policy, and being a written clause, overrules and controls the printed clause relative to the goods being laden at St. Andreas, and there was, consequently, no necessity for lading any part of the cargo there, for the purpose of giving an inception to the risk.

"5. That if the jury should believe that any portion of the cargo was put on board at St. Andreas, it is a sufficient lading to ascertain the inception of the [**37]  risk, within the true intent and meaning of the policy.

"6. That the object of requiring a lading to take place at the port where the risk is to commence, being only to ascertain the condition of the cargo, if the jury believe the condition thereof to have been ascertained to have been good by a subsequent examination, the legal necessity of any such lading having taken place is done away.

"7. That the object of requiring the fact of a lading, at the port at which the risk is to commence, as necessary to its inception, being either as a means of ascertaining the moment of such inception, or as a means of ascertaining the good condition of the goods, or both, those objects are sufficiently attained in this case, if the jury shall believe that any part of the cargo was laden at St. Andreas, and that the good condition of the whole was sufficiently ascertained, either at that place, or after sailing therefrom, and before the loss.

"8. That if the jury believe, that the insurance was on the cargo of the Argonaut, on her homeward passage, she having been on a trading voyage on the Spanish main, and that the assurers were acquainted with those facts, and if they further believe [**38]  the usage of trade to be, to commence the collection of the return cargo immediately upon the first arrival of the vessel upon the Main, and to continue the same throughout the voyage as opportunities may offer, then the policy attaches upon all goods on board the Argonaut, whether laden at St. Andreas or elsewhere, during the voyage, whether before or after her being at St. Andreas."

And the court accordingly gave the following instructions, viz: Prayer No. 1, granted. Prayer No. 2, granted. Prayer No. 5, granted, with the following qualification.--"Provided, the jury shall find that such portion of cargo so put on board at St. Andreas, was not a part of the goods and merchandise which were actually on board said schooner Argonaut at the time of her arrival at St. Andreas, and there landed and put again on board said schooner before her departure therefrom, but were other goods actually laden on board the said schooner at St. Andreas."

And refused the plaintiff's prayers, Nos. 3, 4, 6, 7 and 8.

Whereupon the plaintiff, by his counsel, excepted to all the opinions of the court, wherein any of the prayers of the defendants were granted, and to all the opinions of the [**39]  court wherein any of the prayers of the plaintiff were not granted.

The jury found a verdict for the plaintiff, and both parties appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

In the construction of a contract of insurance, as in other cases, the intention of the parties, when it can be ascertained, must govern their rights under it. The order when adopted into the policy, forms a part of it, and is to be adverted to, and considered in giving it a construction.

It is an established principle in the law of insurance, that the underwriters are presumed to be acquainted, with the nature and course of the voyage, which they undertake to insure.

Where insurance was effected on a cargo, at and from St. A. with liberty of two ports on the Spanish main, and at and from any of them to B, by a policy subscribed on the 4th day of April, 1831, upon an order therein referred to, as follows:

$ 4,500 insurance is wanted, on cargo of schooner Argonaut, Captain Maginney, at and from St. Andreas, with liberty of two ports on the Spanish main, and at and from any of them to Baltimore, with a return for each port not used. Captain Drinkwater, of the schooner Desiah, arrived here a few days since from San Blas, and reports that the Argonaut sailed from San Blas for St. Andreas about the middle of February to trade, which is the last account received of her proceedings--and the loss occurring on the voyage from San Blas to St. Andreas, it was held that the insurers were not liable, the loss happening before the risk commenced.

The order for the insurance was intended to define with certainty the voyage to be insured, and to obviate all mistake upon that subject.

The authority to commissioners to take testimony is special, and must be strictly pursued.

Evidence taken under a commission in which a different person from one of the commissioners named therein acted, rejected as inadmissible.

Commissioners have no authority to propound any questions to the witnesses but those which are sent out with the commission, and the answers to such questions should not be suffered to go to the jury.  

COUNSEL:
D. STEWART, for the appellant, said upon the appeal of the Insurance Company:

1. That the risk insured never commenced.

2. That if it did commence, the jury were bound in finding the amount of the loss--to estimate the goods covered by the policy according to their value at the places where they were respectively shipped, and not according to the value at Baltimore had they arrived in safety.

On the appeal of the plaintiff below he insisted, that admitting for the purpose of the question, that the policy covered that part of the voyage which commenced at St. Andreas to the latter end of December, 1830, or beginning of January, 1831, that it attached only on so much of the homeward cargo as was actually laden on board for the first time, either at San Andreas or Cordea, and did not cover that part of the cargo on board said schooner at the time of her arrival at San Andreas, or that which was landed there and put again on board before her departure.

The controversy will mainly turn [**40]  on the order for insurance of the 4th April, 1831, which represents the vessel as at San Blas on the 14th February, 1831. She sailed from San Blas towards San Andreas on the 15th February, 1831, on which day she was wrecked. Hence, as she was to be insured from San Andreas, we contend the policy never attached. In this contract parties should meet on the same ground. We look to the order, and ask what was intended to be insured? what voyage was it. The counsel here examined the facts to show that Bossiere intended the voyage to commence at San Andreas on the homeward voyage, a spring voyage. He sought insurance at and from San Andreas, to which port the vessel was bound by the statements in the order. The ship must be ready to pursue her voyage and be at the terminus a quo before the risk attached. Robertson and Thompson vs. French, 4 East. 130. Williamson vs. Innes, 21 Serg. and Low. 229, 245. If the terms of the order are so ambiguous, that one party would look to the commencement of a voyage at one period, and another party intended another period, it would be discharged on the ground of mutual mistake. The aggregatio mentium, indispensable in contracts never took place. Hull vs.  [**41]  Cooper, 14 East. 479. As to the admissibility of the commission in evidence, we contend the court will not suffer the substitution of a commissioner not of, for another of, their appointment. Commissioners are officers of the court, act under the authority of the court, nominated ex parte, and particularly appointed by the court. The party who takes out an ex parte commission runs all the risks of accident. Cappeau's Bail vs. Middleton and Baker, 1 Har. and Gill, 154, 158. Guppy, et al, vs. Brown, 4 Dall. 410. No oaths were administered by the commissioners which is error. 1 Wash. C. C. R. 44. Bailis vs. Cochran, 2 John. Rep. 417. If a clerk be appointed he must be sworn by the commissioners--but here all the oaths were administered by the alcalde, and finally an interrogatory not sent was put and answered before the commissioners, in which they transcended their authority.

EVANS, for the appellee, contended:

1. That the voyage insured commenced on the first arrival of the Argonaut.

2. That the order is only a statement of information for the benefit of the insurers, which information is that the report mentioned in the order had been made, and not that it was true.  [**42]  

3. That the policy attached on the tobacco shipped at Cordea.

4. That the jury were not bound to estimate the goods agreeably to their value, at the places where they were shipped respectively.

5. That the jury had a right to calculate interest upon the amount of partial loss if the defendants objected to the preliminary proof solely because the policy had not attached.

6. That the policy attached upon all the goods on board the vessel, where ever shipped.

7. That the order is not a representation that the Argonaut sailed from St. Blas about the middle of February for St. Andreas.

He insisted that the question argued by the opening counsel of the appellants was more general than that presented by the prayers offered to the county court.

There is no question about deviation open to the company, their prayer on that head was granted below.

The order does not bind the insured to a voyage commencing after the middle of February.

The point that the policy never attached was not brought up under the act of 1825.

There is no proof of concealment--no proof that Bossiere had information about the course of the voyage. No proof of a missing ship.  [**43]  Not a winter voyage. Both parties stood on an equal footing. It was a voyage to and fro, and beginning the homeward part of it not susceptible of ascertainment.

The prayers relied on below insist that the order uses terms of description--representation or warranty, and are framed to meet one or the other of those views. There being the case within either of those three classes, an intention must exist to use the terms for the one or the other of those purposes. The agreement must be considered by itself. The intention collected from it alone. For here is no fraud nor latent ambiguity.

The case in 4 East. 130, was one of express stipulation--a part of the description of the voyage, and so indicative of intention.

The case of 1 Serg. and Low. 229, was of a policy on freight. That in the same volume, 241, only decides, that the policy does not attach on a voyage delayed for a year.

We contend that the commission was properly executed. The person intended by the plaintiff in fact acted. The decision in 1 Har. and Gill, 154, 158, has no effect here. There the commissioner, abandoned his duty and handed the proceedings over. Here the party intended to be intrusted did [**44]  the duty. If we ask who had the confidence of the court, the reply is neither the one named, nor he who acted. There is proof of an accountable mistake, and this is not a commission by agreement, but taken adversely upon the action of the plaintiff alone. Then the question is merely whether a mistake in the name of the commissioner, when he who was designed to be entrusted did the duty, is a fatal mistake. Is the strict doctrine of misnomer to be applied here? The case of Cappeau and Baker sheds no light on this question. Then as to the oaths, the counsel for the appellant is mistaken in the fact. The depositions may be taken before both commissioners. The act of the Alcalde in administering the oath may be treated as surplusage. His concurrence cannot make the commission worse. It appears substantially that the oaths were taken by and before the commissioners. If done in their presence and by their direction, it was done by them. The case in 2 Har. and Gill, decides that a clerk was unnecessary. The court will presume that the clerk was sworn if the contrary does not appear. The new interrogatory was mere surplusage--and lastly, the whole commission was unimportant. It had no tendency [**45]  to procure a verdict one way or the other, and therefore forms no ground for a reversal.

R. JOHNSON, on same side.

The cause as argued on the other side presents two questions:

1. Did the policy in fact attach on the risk?

2. Was the commission admissible in evidence?

No authority has been cited to establish that in this order there is either a warranty or representation.

I assume there is neither concealment in fact, nor warranty in law, nor representation in law in this record.

Then are there any other questions in this record than those conceded to be correctly decided below.

The policy it is said never attached, because the voyage never did take place. The object of the insurance was to cover the return cargo on board this vessel, and to begin at St. Andreas. If return cargo was on board at St. Andreas and lost, and if the assured cannot recover, then the indemnity fails.

The record shows the voyage was out and home, that the outward cargo only was insured. It was necessary to insure the homeward cargo. The court decided there was neither warranty nor representation in the order, and the plaintiff insisted that the policy covered goods [**46]  at St. Andreas, whenever shipped, but the court held it was return cargo, goods for the first time shipped at St. Andreas. It was return cargo put on board there with liberty to touch at one or two other ports. The jury determined within the proviso of the court's opinion, that goods for the first time shipped at St. Andreas, to be part of the homeward cargo.

Leaving St. Andreas, the vessel started for the main, and only used one port, San Blas, and starting from San Blas bound to San Andreas, and before arriving at the point of deviation, at which a vessel bound from San Blas to the United States, would depart from the route of the voyage from San Blas to San Andreas, the loss occurred. From San Blas to the place of loss, was a route common to vessels bound from that port, either to the United States or San Andreas. An intention to deviate is not fatal to the right of recovery. A loss occurring before the point of an intended deviation is reached, must be paid for. A mere intention is no deviation. New York Insurance Co. vs. Lawrence, 14 John. 46. Lawrence vs. The Ocean Insurance Co. 11 John. 241. The case is this; a return cargo is intended to be covered. It is purchased and [**47]  shipped. The vessel has the liberty of two ports after leaving the port of shipment. She touches at one. There is an intention to deviate in the further prosecution of the voyage, but the loss occurs before that intent is carried into operation, the loss must be paid for.

Then it is argued the voyage had not commenced. But let us suppose, that after leaving San Andreas, she never reached San Blas, and the fact of sailing from San Blas to San Andreas, stated in the order untrue, now as this statement is neither warranty nor representation, would not the underwriters have had to pay for the loss? If such a representation was not material, the only inquiry would be was the cargo within the policy?

The only escape from this result is proof of a design to carry the return cargo shipped at San Andreas, to some other port than Baltimore.

The proof of the captain is that the vessel was coming home. She leaves San Andreas with a homeward cargo, touches at San Blas. Sails from San Blas, and before the point of an intended deviation is reached, a loss occurs. For this we could recover. Indeed we were entitled to recover for outward cargo landed at San Andreas, and then re-shipped [**48]  for Baltimore, as this in point of law would be return cargo.

If the representation is struck out of the order, and it stood at and from San Andreas, with liberty of two other ports and home, then as to return cargo the plaintiff could certainly recover.

The truth of the representation as stated is not denied. The construction put by defendants makes the representation defeat the application, as that it must be cargo shipped only after her return to San Andreas, and after leaving San Blas.

The object was to cover cargo laden at San Andreas, in the whole of its transit from that port to two other ports and home. On the first prayer, the question of cargo laden at San Andreas for Baltimore, is not in this instruction, and there being proof of a shipment, it insists that although a shipment the risk did not attach. It puts the right to recover for a loading in the month of February, now if this representation is not material, we are entitled to stand as if it was out of the cause. Time is made material in their first and second prayers.

The third prayer puts the case to the jury upon a particular hypothesis of facts, and denies the right of the plaintiff to recover [**49]  at all, now if this hypothesis did not cover the whole rights of the plaintiff, it is error to grant it. Under this prayer the defendant contends, that as the vessel had not reached San Andreas, and the plaintiff did not intend to insure her until she reached, meaning to stand his own underwriter till that event. Suppose the defendant correct in law, and that in fact, the vessel was not on her voyage to San Andreas the second time, but had left San Andreas for Baltimore by way of San Blas. If true that the policy contained neither warranty nor representation of the time of sailing, and the plaintiff is, (see the master's evidence,) that she sailed from San Andreas to Cordea, a port of privilege by the policy and started from Cordea, for a homeward port, we may sustain this judgment, though there is countervailing proof. The policy attached if the jury found the captain's proof to be true. Under this state of proof the court could not take the cause from the jury. The prayer of not entitled to recover, must be upon a hypothesis of the truth of every fact variant from the master's proof.

We next inquire whence comes the evidence of the intention, that the voyage was to commence [**50]  after the vessel's arrival at St. Andreas, and after February, 1831.

The policy professes to cover all return cargo laden at St. Andreas. The only evidence of the period at which it is to commence is found in a reference to the order for insurance.

The order is only evidence in cases of representation and warranty. It is only in such cases that it can be used. Dow vs. Whetton, et al, 8 Wend. 160. The application for insurance is not evidence of the intention of the parties. At law it is used to shew misrepresentation. In equity it may be used to correct the policy. Dow vs. Whetton, et al, 8 Wend. 163, 173.

In cases of no representation nor warranty, the policy alone is the evidence of the intention of the parties, and the language there is too clear for controversy.

As to the commission, the introduction of an additional interrogatory by the commissioners is ground of objection to that only, as to the mode of executing commissions he cited. Wilson vs. Mitchell, 3 Har. and John. 91. Walkup vs. Pratt, 5 Har. and John. 51.

But I contend this court will not reverse nor send the cause back, when they see the judgment is correct. The evidence independent of the commission [**51]  proves the case. The proof in the commission does not even add to the weight of the other proof, indeed the defendant offered on his part, all the proof which the commission contained. Then the admission of the commission as evidence is wholly immaterial.

MEREDITH, for the appellant, in reply.

The whole case rests upon the intention as to what risk the policy attached on. The underwriters allege that the voyage they intended to insure was not the voyage on which the loss occurred. The ascertainment of this intention may depend on warranty, and in the absence of warranty, may, and must depend on intention, as you may collect it from the policy or the order, or from circumstances dehors the contract.

It is true in the order, you find a report that the schooner had sailed from San Blas to San Andreas, for the purposes of trade, on looking at this order it would strike a judicial mind, a professional man, that it looked very much like a representation. I admit there is no misrepresentation in the order. The representation is true, true as a report, true in fact, looking to the fact. The report as stated in the order is proved to be true, all the evidence in the cause concedes [**52]  its truth, consider in any light the report is true as stated. And it marks an intention to insure a voyage not to commence earlier than February, 1831.

There may be a misdescription of a voyage independent of either warranty or misrepresentation. There are a variety of cases with reference to the commencement of the risk, whether in point of time or at all, which arise from contract. Marshall, 322, and cases there cited. Driscoll vs. Passmore, 1 Boss. and Pull. 200.

We insist the case depends on intention to be collected from the terms and language used in the contract, as in all other cases, the intention of both parties must concur. If different, each having a different object, then it is a case of mutual mistake not binding on either party. 1 Pothier, 12. There is a case which illustrates this position. An insurance was effected in Boston, on a ship for a whaling business. The owner of the ship and the ship were in New York. In the order the ship was described as a coppered ship. This term was equivocal. In New York it meant a ship coppered to the bends. The keel and false keel not coppered. It meant in Boston, in a whale ship, a ship coppered bottom and sides of both [**53]  keels. The insurance was effected in Boston, and the assured was bound by the construction there given to the order. But the court also held, as there was no fraud, no intention to deceive, as parties meant different things there was no contract, no contract ad idem. A mutual mistake not binding. Then if the company intended to underwrite a voyage commencing from San Andreas, not later than the middle of February, then the intention of the assured becomes immaterial and the intent of the underwriter being established, the policy is at an end.

How is this intention to be ascertained? The first prayer puts the intention on the ground of contract made up of the policy and the order, and these are the foundations of the intention of the parties to this written contract. It is not a matter of fact, but a question of construction and to be made by the court. And if the intention here imputed was that of one of the parties, then there was nothing open for inquiry by the jury.

This order without the report as derived from Captain Drinkwater, establishes an intent, to underwrite a voyage not commencing earlier than the middle of February. Here the order is inserted in the policy.  [**54]  It is settled that it is a part of the contract. It often operates to control the contract, as where the language of the policy differs from that of the order. Winingder vs. Diffenderffer, 5 Gill and John. 187. The words at and from San Andreas, indicate the intention. How are these words to be understood? If they have a technical meaning, their familiar signification yields to it. Robertson and Thompson vs. French, 4 East. 135. Usages interpreted by judicial decisions are taken in the peculiar sense ascribed to them. Now, technically what do at and from mean. These mean that the vessel was at the place when last heard from, or shortly expected there, not at an indefinite distant day, and if they do not import that the vessel was to arrive at a distant day, then they do not import that the arrival had occurred at an antecedentally distant day, for in such case she might be a missing vessel. If not so, the underwriter would in all such cases be made to take the part of a missing vessel. The words at and from import that the Argonaut was at San Andreas, or shortly to be there, and as the insurers are presumed to have knowledge of the course of trade and meaning of such terms, so have [**55]  they knowledge of a design to insure a voyage to be commenced in conformity thereto.

These views are confirmed by the statement of Drinkwater's report contained in the order, and the underwriter had a right to regard that statement, as a circumstance indicating the voyage intended to be insured.

The counsel here proceeded to argue from the letter of instructions to the supercargo, and the nature and course of this branch of trade in which the appellee had been engaged, that he designed at first to insure the voyage as contended for by the insurance company, and concluded his argument, insisting that as the commission tended to corroborate some portions of the proof, otherwise suspicious, and as the court could not determine what effect it might have had upon the jury, its admission as evidence was error.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*153]  STEPHEN, Judge, delivered the opinion of the court.
This case comes up upon an appeal from the judgment of Baltimore county court, rendered in an action of covenant, instituted in that court upon a policy of insurance, executed by the appellant, for the [**56]  appellee, upon the return cargo of the schooner Argonaut, at and from St. Andreas to the port of Baltimore, with the liberty of two other ports on the Spanish main, and at and from any of them to Baltimore, with a return for each port not used. The parties to this controversy, differ about the true construction and operation of this policy, as to the voyage it was intended to cover. The Argonaut it appears by the proof in the cause, sailed from the port of Baltimore about the middle of November, 1830, for the Spanish main, and after visiting several places on the Spanish main, arrived at St. Andreas, according to some of the proof in December, 1830, or January, 1831, or as proved in another part of the testimony, on or about the 27th day of December, 1830. From St. Andreas, she proceeded to Cordea and San Blas, where she traded, and after leaving San Blas was lost by the perils of the sea, having capsized, and as proved by the captain, she went to pieces. In the deposition 

 [*154]  of Captain Maginney, which was inclosed in a letter by the assured, to the president of the Maryland Insurance Company, and given in evidence [**57]  upon the trial--it appears that the Argonaut was at San Blas on the 14th day of February, 1831, on which day she left that place for St. Andreas on her way home, and on the 15th of the same month was struck by a heavy squall of wind, capsized and lost. It is to be observed that this testimony corresponds with the report of Captain Drinkwater on his arrival from St. Blas at Baltimore, and which report was contained in the order or proposal for an insurance. That order is in the following words:
"4,500 dollars insurance is wanted on cargo of schooner Argonaut, Captain Maginney at and from St. Andreas, with liberty of two other ports on the Spanish main, and at and from any of them to Baltimore, with a return for each port not used. Captain Drinkwater of the schooner Desiah, arrived here a few days since from St. Blas, and reports that the Argonaut sailed from St. Blas for St. Andreas about the middle of February to trade--which is the last account received of her proceedings."
Upon this order the insurance was effected, and when the policy was executed the order was referred to and adopted as a part of it. The vessel and [**58]  the greater part of the cargo having been lost after she left St. Andreas on her first arrival at that port, and before her second contemplated arrival when she was lost. The true construction of this policy becomes vitally important to the parties in this case, as upon it depends, the right of the assured to claim an indemnity for the loss he has sustained. After a careful consideration of the arguments which were urged in behalf of the respective parties to this controversy, we have come to the conclusion that the underwriters are not responsible for the loss which the assured has sustained, because we think that according to the true construction of their contract, the loss occurred before the inception of the voyage, which the policy was intended to cover; and consequently before the risk commenced, which 

 [*155]  they intended, and did in fact, assume. In the construction of the contract of insurance, as in all other cases, the intention of the contracting parties is to be regarded, and when it can be ascertained, it must govern and control their rights under it. The order being adopted into the policy, forms a part of it, and must of course be adverted to, and considered [**59]  in giving a construction to the policy in this case. It is a well established principle in the law of insurance, that the underwriters are presumed to be acquainted with the nature and course of the voyage which they undertake to insure, and it is in proof in this case, that the vessel arrived at St. Andreas on or about the 27th of December, 1830, and left there a few days thereafter, and the insurance was effected on the 4th of April, 1831. If these facts had been known to the Insurance Company at the time the application for insurance was made, it is proved by the presidents of two Insurance companies, gentlemen of long and extensive experience upon such subjects, that the vessel would have been considered out of time, and the risk would according to common practice or usage in such cases have been declined. Such a risk then, it is fairly to be inferred would not have been assumed by the insurers in this case, if these facts had been known by them at the time they subscribed the policy. Nor do we think that such an insurance would have been suggested by the interest of the insured under the circumstances given in evidence, nor could the underwriters have supposed that such a [**60]  risk was asked to be assumed. The vessel had left that port and had performed a great part of the voyage; had visited and traded at two of the ports to which she was privileged to go according to the terms of the policy, and in going to St. Andreas a second time, would have been guilty of a deviation, which would have vacated the contract of insurance, and discharged the underwriters. In giving a construction to this policy, it is moreover to be borne in mind, that the underwriters were distinctly and explicitly informed by Mr. Thompson, the agent of the assured, in the order for the insurance, that Capt. Drinkwater of the schooner Desiah, 

 [*156]  had arrived a few days before at the port of Baltimore from San Blas, and brought intelligence that the Argonaut had sailed from that place for St. Andreas about the middle of February to trade, which was the latest account received of her proceedings. What was the object of the communication of this intelligence? The insurance asked for was to be on the cargo, at and from St. Andreas, with liberty of two other ports on the Spanish main. The object of the communication of the report of Captain  [**61]   Drinkwater was therefore, to give them the latest intelligence of the schooner, and when they might calculate upon her arrival at St. Andreas, that they might estimate the risk they were asked to assume accordingly. It was therefore, we think, clearly the intention of the underwriters in this case, and such is the legal effect, construction, and operation of the policy, on which this suit was instituted, that it was to attach, and the risk to commence on the arrival of the vessel at St. Andreas, on her sailing from St. Blas, as reported by Captain Drinkwater. Mr. Thompson's communication of this information to the underwriters, was we think, evidently intended to describe and define with certainty and precision the voyage to be insured, and to obviate all mistake and misapprehension upon the subject of the risk he asked to be assured. There are other views which might be taken of this case, strikingly illustrative of what must reasonably be supposed to have been the intention of the parties to this contract, but it is deemed unnecessary further to enlarge the discussion or enter into a more detailed reasoning upon the subject. The application for insurance in this [**62]  case was made on the 4th of April, 1831, and information of the report brought to Baltimore by the captain of the schooner Desiah, was very properly communicated to the underwriters, not only to enable them to estimate the risk they were asked to assume by forming an opinion as to the period when it would be likely to commence by the arrival of the vessel at St. Andreas, but also to describe and ascertain the voyage they were asked to insure.

 [*157]  The first prayer therefore made to the court by the counsel for the insurers, for their instruction to the jury, having taken an erroneous view of the true construction of the order for insurance, was properly rejected by the court; and we think that such refusal presents no ground for a reversal of their judgment; but we think that the court clearly erred in suffering the testimony taken under the commission to St. Andreas to be read to the jury. Torquil Bowie, who was associated with one of the commissioners in the execution of the commission, acted without authority; he derived no power for such a purpose from the court by whose order the commission was issued to the commissioners originally named therein.  [**63]  The commissioners are the depositories of the confidence of the court; it is a special trust and confidence reposed in them, and cannot be transferred, delegated, or usurped by another. It is moreover, a special authority, and must be strictly pursued.
We think also, that the court erred in suffering the testimony taken under the ninth interrogatory to go to the jury, it being propounded by the commissioners without authority, and it is impossible for this court clearly to appreciate the influence or weight which such improper and illegal testimony may have had with the jury in the formation of their verdict. For these reasons we think that the judgment rendered by Baltimore county court was erroneous, and ought to be reversed; but as the loss occurred in this case before the policy attached, or the risk commenced, no procedendo will be ordered.
JUDGMENT REVERSED.  

11 of 47 DOCUMENTS 

HENRY STEVENSON, et al vs. EDWARD SCHRIVER AND WIFE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 324; 1837 Md. LEXIS 34 

December, 1837, Decided 

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

On the 15th of April, 1837, Elizabeth L. Stevenson, widow of Josias Stevenson, Jr. late of Baltimore city, deceased, filed her petition, alleging that she is a creditor of the estate of her said husband, to the amount of $ 9,763 04, with interest thereon from the 25th day of May, 1825, and that she became the creditor by reason of the conversion by her husband, of moneys belonging to her (in her sole and exclusive right, and under the management of trustees for her separate use) to his own proper use, her said husband receiving the said amount, under his promise and agreement to invest said moneys for the benefit of your petitioner, but neglecting to make said investment as agreed upon. That upon the bill of complaint of one Henry Stevenson, filed in the High Court of Chancery, such proceedings were had, that the creditors of her said husband were ordered by the chancellor to file their claims, whereupon, your petitioner filed her claim for the amount of said moneys, so received by her husband in the said cause so instituted in the High Court of Chancery, as by an attested copy of said claim, herewith filed, marked exhibit A,  [**2]  which she prays may be had and taken as a part of this, her petition, will more fully appear. That the said bill of complaint was dismissed by the court of Appeals, and that your petitioner and her co-administrator are desirous to close their trust, and she prays, that they may have a credit in their account, as administrators, for the amount of your petitioner's dividend of the assets, which may be declared on her claim aforesaid, and that your Honours will pass an order allowing said claim against said estate, &c.; and she here exhibits as part of this, her petition, marked exhibit B, (and she prays it may be so considered,) an exemplification of the will of her grandfather, Dr. Albert Du Fresne, which vested in her for her sole and separate use, the moneys so converted by her husband as aforesaid.

Exhibit A, to said petition,

BALTIMORE, March 2d, 1835.

The Estate of Josias Stevenson, Jr. deceased.

________________________________________________________________________________
   1825.     TO ELIZABETH L. STEVENSON.	DR.	
May 25.--For this amount received by you for	
 my sole and separate use from the executors	
 of Dr. Albert Du Fresne,	$ 9,763 04	
________________________________________________________________________________

City of Baltimore, sct: Be it remembered, that on this second [**3]  day of March, in the year eighteen hundred and thirty-five, before the subscriber, a justice of the peace, in and for the city aforesaid, personally appeared Elizabeth L. Stevenson, and made on oath on the Holy Evangely of Almighty God, that the above account is just and true, as it stands stated, and that she hath not, directly nor indirectly, received any part or parcel thereof, or security or satisfaction for the same. And at the same time also appeared Philip Reigart, and made oath on the Holy Evangely of Almighty God, that the executors of Dr. Albert Du Fresne paid to Josias Stevenson, Jr. in his life-time, and about the month of May, in the year eighteen hundred and twenty-nine, or some time in that month, a sum of money between nine and ten thousand dollars, which the said Josias Stevenson had previously agreed to invest in property for the use of the said Elizabeth L. Stevenson, but which investment the said Josias Stevenson did not make.

Sworn before     WM. P. STEWART.

True copy.--Test, RAMSAY WATERS, Reg. Cur. Can.

State of Maryland, City of Baltimore, sct: On this fourteenth day of April, 1837, before the subscriber, a justice of the peace, in and for [**4]  the city aforesaid, personally appeared Elizabeth L. Stevenson and Philip Reigart, and severally made oath on the Holy Evangely of Almighty God, that the matters stated in the within copy of an affidavit formerly made by them are just and true as within stated, and that the within account is bona fide, due as therein stated.

FRS. FORSTER.

Exhibit B. Extracts from the will of A. Du Fresne:

2d ITEM.--I do give and bequeath unto my two grand-daughters, Elizabeth Reigart and Maria Reigart, the children of my dearly beloved daughter Albertina Reigart, deceased, late Albertina Du Fresne, the sum of eighteen thousand dollars; that is to say, the sum of nine thousand dollars to each of my said grandaughters, as and for their absolute property, which said sum is to be taken and set apart for that purpose out of my personal estate, by the executors of this my last will and testament, and the guardians of my said grandaughters herein after named and appointed, as soon as conveniently may be done after my decease, subject, nevertheless, to the restrictions and limitations herein after mentioned and expressed.

3d ITEM.--It is my will, and I do order and direct, that the aforesaid [**5]  legacy, or sum of eighteen thousand dollars, shall be understood and deemed as given and bequeathed unto them as their property respectively, and not either to their respective husbands or to their father, Philip Reigart, nor the step-brothers or step-sisters, in case they or either of my said grandaughters, Elizabeth or Maria, should happen to die without having any child or children; and if either of them, the said Elizabeth or Maria, should die without having any child or children, then the whole of the said legacy or sum, shall descend, come, and belong, and I hereby bequeath the same unto the survivor of them. But in case they should both die without leaving any child or children, then and in that case, I do give and bequeath the whole and every part of the said legacy or sum of eighteen thousand dollars unto my son Samuel Du Fresne, or his legal heirs and representatives.

4th ITEM.--It is my will, and I do direct, that the aforesaid legacy or sum of eighteen thousand dollars, shall be placed out and continued at interest on good and sufficient security, as herein before ordered, by the executors of this my last will and testament, and the guardians of my said two grandaughters,  [**6]  herein after named, or the survivor of them, and be under the control and management, superintendance and discretion of my said executors and guardians, for the use and benefit of my said grandaughters, Elizabeth Reigart and Maria Reigart; and that they, the said executors and guardians, or the survivors or survivor of them, do add the interest thereof as the same shall accrue or accumulate from time to time, (excepting, nevertheless, the sum of two hundred dollars, part of the said interest, yearly herein after allowed unto their said father, Philip Reigart,) shall be paid unto my said grandaughters, Elizabeth Reigart and Maria Reigart, to be equally divided between them on their severally attaining the full age of twenty-one years, or at the time of their marriage, in case they or either of them intermarry after attaining the said age respectively. And that the sum of two hundred dollars, part of the said interest, be paid to their said father, Philip Reigart, to be by him applied for the support, maintenance, and education of my said two grandaughters, Elizabeth and Maria, in a decent and becoming manner; but if the said Philip Reigart should omit or neglect to apply the said two [**7]  hundred dollars for the support, maintenance, and education of my said two grandaughters, then and in such case my said executors and guardians shall, and may withhold and detain the said sum, and apply it to and for the use and benefit of my said two grandaughters, in such manner as they, my said executors and guardians, herein after named, or the survivors or survivor of them, in their best discretion may think proper or necessary.

5th ITEM.--It is my will that if either of my said grandaughters, Elizabeth Reigart or Maria Reigart, should die under the age of twenty-one years unmarried, and without having any child or children as aforesaid, then and in such case, I do give, devise, and bequeath the whole of the said legacy or sum of eighteen thousand dollars, unto the survivor of them, in absolute property; but if both the said Elizabeth and Maria should happen to die under the age aforesaid, unmarried and without leaving any children, then and in such case I do give, devise, and bequeath the whole of the said legacy, or sum of eighteen thousand dollars, with all the increase thereon, (if any) unto my said son Samuel Du Fresne, his heirs, executors, administrators, and assigns,  [**8]  to and for his and their behoof in absolute property.

8th ITEM.--As to all my moneys, estates, effects and property, of what nature or kind soever the same may be, which I am or may be entitled to, in any part of Europe, whenever the same shall be recovered, received, or remitted hither into this country, I do give, devise and bequeath the same in manner following, to wit: one equal half part thereof I do give, devise and bequeath unto my said son, Samuel Du Fresne, his heirs, executors, administrators, and assigns, to and for his and their proper use and benefit and behoof, in absolute property; and the other equal half part thereof I do give, devise and bequeath unto my said grandaughters, Elizabeth Reigart and Maria Reigart, share and share alike, to wit: the one equal fourth part thereof to each of them: and in case of the death of my said two grandaughters under the said age of twenty-one years, unmarried, and without leaving any child or children, then her said share or one-fourth part shall come to, and I do hereby give, devise and bequeath the same, in absolute property, to the survivor of them; but if both my said grandaughters should happen to die under the said age,  [**9]  unmarried, and without leaving any child or children, then and in such case, the said two equal fourth parts hereby given unto my said two grandaughters shall come or belong, and I do hereby give, devise and bequeath the same in absolute property unto my said son, Samuel Du Fresne, his heirs, executors, administrators, and assigns, to and for his and their proper use, benefit and behoof.

9th ITEM.--As to all the rest, residue, and remainder of my moneys, estate, effects, goods and chattles, or moveable property whatsoever, and of what nature or kind soever, and wheresoever the same may be, and not herein before particularly given, devised or bequeathed, and which I am or may be entitled unto at the time of my death, without any inventory thereof to be made, taken or rendered, or any part thereof--and as to all and singular my messuages, houses and lots, or pieces or parcels of ground, lands, tenements, and hereditaments which I may die possessed of, or may be in any manner seized of and entitled unto, situate in the said city and county of Lancaster, in the state of Pennsylvania, or elsewhere in any part of the United States of America, with their and every of their rights, members,  [**10]  and appurtenances, I do give, devise and bequeath the same, unto my said son, Samuel Du Fresne, his heirs, executors, administrators, and assigns, for ever subject to, and charged nevertheless, with the said two legacies herein before given and bequeathed unto my said brother and sister, to be paid to them severally, in manner herein before mentioned and directed.

And lastly--I do hereby nominate, constitute and appoint, my said son Samuel Du Fresne, and my trusty friends, Peter Reed, (saddler,) and Philip Gloninger, both of the said city of Lancaster, and the survivors and survivor of them, to be the executors and executive of this my last will and testament, and also guardian and guardians over the moneys, effects, and estates, herein before given, and devised unto my said grandaughters Elizabeth Reigart and Maria Reigart, during their minorities, respectively, hereby revoking all former and other will or wills, testament and testaments, by me made; and declaring this, and no other, to be and contain my last will and testament. In witness whereof, I have hereunto set my hand and seal, the eighth day of December, in the year of our Lord one thousand eight hundred and twenty.  [**11]      A. DU FRESNE. [Seal.]

And afterwards, to wit: on the 1st day of May, in the year 1837, Henry Stevenson, Urath Stevenson, Urath Stevenson executrix of Josias Stevenson, Sr. deceased, Job Smith, Jr. judgment creditors of the estate of Josias Stevenson, Jr. deceased, and the said Urath, as executrix aforesaid, being also one of the legal distributees of said estate, come here into court and caution the court against the passage of a claim against said estate, presented here by Elizabeth Stevenson, and filed with her petition aforesaid. And these creditors and distributees as aforesaid, respectfully protest against the allowance of said claim, and indeed against this court taking any order in the premises.

1. Because they deny the facts stated in the petition and affidavits attached to the claim, so far as they represent and attempt to shew that the said Elizabeth hath any just demand against said estate.

2. Because the will filed makes no such disposition of a fund for the benefit of said Elizabeth, as is specified in said petition.

3. Because the deceased husband of said Elizabeth, never received at any time any moneys from the persons under the circumstances,  [**12]  and for the uses of said Elizabeth, as is specified in said petition, account, and probat thereon.

4. Because the affidavits attached to said claim are insufficient to exhibit it before this court.

5. Because the said claim is irregularly, illegally, informally, and insufficiently made out and offered here.

6. Because the said claim is, and all claims that the said Elizabeth may ever have had against said estate, are barred by limitations. They are of more than three years standing, since the acts of limitation began to run against them, and these creditors and these distributees plead said acts of limitation in bar of said claim and claims, and pray to be allowed the benefit thereof.

7. Because the said claim was not adduced and exhibited in this court within the time limited and specified in the publications made by the administrators on Josias Stevenson, Jr's estate, for notifying creditors to bring in their claims, and also specified in the order of this court passed in that behalf.

The parties then filed in court a commission, containing certain proofs admitted by consent, a part of which only are material in the view taken by the court, viz.:

Samuel [**13]  Dale, examined on behalf of the defendants, deposeth as follows:

2d. Have you any knowledge of a legacy bequeathed to the said Elizabeth L. Stevenson, by her grandfather, Albert Du Fresne, of the city of Lancaster, in the state of Pennsylvania; if so, please state the amount thereof, and the circumstances by which the said legacy was attended as regards the payment of it over, and annex to your answer an examined and authenticated copy of the last will and testament of the said Albert Du Fresne, whereby said legacy was bestowed.

To said second interrogatory he deposeth as follows: Deponent says that he has knowledge of the legacy bequeathed to Elizabeth L. Reigart, now Elizabeth L. Stevenson, by her grandfather, Dr. Albert Du Fresne, late of the city of Lancaster, in the state of Pennsylvania. Deponent says that the amount due to Elizabeth L. Stevenson after the death of her sister Maria, under the will of her grandfather, Dr. Albert Du Fresne, deceased, was eighteen thousand dollars; and at the time it was settled, in 1829, when the executors were released, the legacies with their interests were nineteen thousand five hundred and twenty-six dollars and eight cents. Deponent [**14]  says, some time in 1828 Josias Stevenson, Jr. came to the city of Lancaster, and demanded the legacy coming to his wife under the will of her grandfather, Dr. Albert Du Fresnc, deceased. Dr. Samuel Du Fresne, one of the executors, agreed that he would give him the legacy coming to her, although she was under age, if he would take one-half of it in real property for her use, and the other half he would pay in cash. Some deeds were drawn by me, and executed by Dr. Samuel Du Fresne to that effect, and sent on to him. He, the said Josias Stevenson, Jr. some time after came to Lancaster, perhaps in 1829, the time I do not exactly recollect, and said he would be entitled to receive. Deponent says that Josias Stevenson, Jr. told him he could not obtain that security here, but could do it if he were at home in Baltimore, and that he wondered why they, the executors, should ask it of him. Deponent says, he replied, that the executors were anxious to have the property secured to Elizabeth L. Stevenson. Deponent says that he, Josias Stevenson, Jr. then replied, if he got the cash he would apply the same in purchasing real property in the city of Baltimore for her, Elizabeth L. Stevenson's use,  [**15]  and THAT IT COULD BE AS WELL SECURED THERE as in the city of Lancaster for her. Deponent says, that Josias Stevenson, Jr. remained in the city of Lancaster at one time for about three days, during which time he frequently called at my office, and we had frequently conversations to the same effect as what is detailed above. He, Josias Stevenson, Jr. borrowed the acts of assembly from me in relation to the refunding bond; he said he would take them and consult his attorney in the city of Lancaster. He, the said Josias Stevenson, Jr. finally agreed to take nearly the one-half in real property in the city of Lancaster, transferred for the use of his wife, and the balance in cash; and on the twenty-fifth day of May, 1829, he released and discharged the executors and guardians, to wit: Dr. Samuel Du Fresne and Peter Reed. Deponent has no recollection of what took place when the money was paid, or of any conversation that took place at that time. Deponent has examined the exemplified copy of the will of Dr. Albert Du Fresne, deceased, being endorsed complainants' exhibit A, and believes it to be a correct copy.

4. Do you know whether or not previously to the said payment, or at the time [**16]  thereof, the said Josias Stevenson, Jr. on his part expressly undertook and agreed to invest the amount of the said legacy in some property for the sole and separate use of the said Elizabeth L. Stevenson, and whether or not the said payment was not made to him upon his said undertaking and agreement, and at his solicitation. State all your knowledge of the matters inquired of fully and in detail.

To said fourth interrogatory he deposeth as follows: Deponent states, that he has no other knowledge of any undertaking or agreement of the said Josias Stevenson, Jr. or any other circumstances connected with the payment of the legacy to him, other than that detailed in answer to the second interrogatory. Said Josias Stevenson, Jr. did repeatedly solicit the payment of the legacy, and the delay arose from the anxiety of the executors and guardians to secure the interest of Elizabeth L. Stevenson. The legacy, when paid as aforesaid, was paid by her consent. Deponent has no distinct recollection of any other matters inquired of in this interrogatory, than such as he has detailed in his answer to the second interrogatory, and in his answer given to this interrogatory.

On the application [**17]  of Edward Schriver, alleging his marriage with Mrs. Stevenson, he was admitted a party to the suit, and filed the following affidavit:

Baltimore City, sct.--On this 13th day of October, 1837, before the subscriber, a justice of the peace in and for the city aforesaid, personally appeared Edward Schriver and Elizabeth L. Schriver, (formerly Elizabeth L. Stevenson,) which Elizabeth L. is one of the administrators of Josias Stevenson, Jr. late of Baltimore city, deceased, and made oath, that it doth not appear from any book or writing of the said Josias Stevenson, Jr. that any part of the claim heretofore made and filed in the Orphans court of Baltimore county, by the said Elizabeth L. then Elizabeth L. Stevenson, against the estate of the said Josias Stevenson, Jr. hath been discharged, and that to the best of the several knowledge and belief of said deponents, no part of the said claim hath been discharged, and no security or satisfaction hath been given for the same. Sworn to before, &c.

The Orphans court (HARWOOD and WARD, Judges,) decided that the claim made by the said petitioner, against the estate of the said deceased, for the sum of nine thousand seven hundred and sixty-three [**18]  dollars and four cents, with interest thereon from the 25th day of May, 1825, is just and legal, and ought to pass. It is, therefore, on this 8th day of November, in the year eighteen hundred and thirty-seven, ORDERED and DECREED by the Orphans court for Baltimore county, that the account or claim of the said Elizabeth, of nine thousand seven hundred and sixty-three dollars and four cents, with interest thereon from the 25th day of May, 1825, against the estate of the said Josias Stevenson, Jr. deceased, be, and the same is hereby passed by the court, and that she be allowed in her administration account for the amount of said claim, with interest as aforesaid, or her just proportion or dividend of assets in the hands of the administrators of said deceased, in case his personal estate should not be sufficient to pay all his debts.

RIDGATE, Judge, dissented.

The creditors and distributees of Josias Stevenson, Jr. appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

By the first section of the act of 1818, ch. 204, a party deeming himself aggrieved by the orders or decrees of the Orphans courts, may appeal to the court of Appeals, and the term "party," does not necessarily mean a litigant before the court, when the order or decree is passed, but any one on whose interests such order or decree has a direct tendency to operate injuriously.

An order of the Orphans court passing a claim of the executor, or administrator, against the estate, may be appealed from by a distributee or by a creditor, where the assets of the deceased are inadequate to the payment of debts.

The power of the Orphans courts in passing claims against the estate of the deceased, is not confined to strictly legal claims, but embraces every species of indebtedness, whether legal or equitable; nor is their authority in this respect limited to such as are proved according to the act of 1785, ch. 46.

They do not derive their power to pass open accounts from the 8th sec. of the 9th sub ch. of the act of 1798, ch. 101, nor are their powers on that subject imperatively restricted by it. The object of that section was to restrain the authority of executors and administrators in the payment of open accounts, not passed by the court, to such as were proved in the mode thereby prescribed.

The power of the Orphans courts in passing accounts before payment, is derived from the second section of the act of February session, 1777, ch. 8, and the first section of the 15th sub ch. of the testamentary system.

A testator bequeathed to his two grandaughters $ 9,000 each, with a direction that the said "legacy should be understood and deemed as given and bequeathed unto them, as their property respectively, and not either to their respective husbands or to their father," &c.

In a subsequent clause the testator said, "it is my will that if either of my said grandaughters should die under the age of 21 years unmarried, and without having any child or children, as aforesaid," then over to the survivor, &c.

Upon this will it was held, that upon the marriage of either of the legatees, the legacy vested absolutely in her, and that such portion of it as was received by her husband during coverture, in virtue of his marital rights, became his property, for which his estate could not be charged by his widow after his death.  

COUNSEL:
By SPEED, for the appellants, and

By R. JOHNSON and D. STEWART, for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*335]  DORSEY, Judge, delivered the opinion [**19]  of the court:
The first in point of order of the questions which have been discussed in this case, is, have the appellants a right to appeal from the order in question, passed by the Orphans court?
By the first section of the act of 1818, ch. 204, a party deeming himself aggrieved by the decree, order, or decision of the Orphans court, may appeal to the court of Appeals. The term party, in this section of the act of assembly, is not used in a technical sense, necessarily importing a litigant before the court, in the proceedings in which the decree or order passed, at the time of or antecedently to its passage; but may also mean one on whose interests the decree or order has a direct tendency to operate injuriously, and who, after its passage, may appear in court and claim the privilege of appeal. Many, if not most of the orders of the Orphans court, are wholly ex parte, and yet the right to appeal has never been denied to him who has sustained an injury thereby.
The only inquiry, then, on this question, is, has the order before us an evident tendency to impair the rights of the appellants? We are of opinion that it has. For argumenti gratia conceding, as is alleged, that [**20]  the passage of the claim of an executor or administrator, by the Orphans court, is not conclusive upon a distributee or creditor suing such executor or administrator, and leaves him at liberty to shew the illegality of the allowance thus made; yet it so increases the difficulty of so doing, that such an order cannot be said not to 

 [*336]  impair the rights of a distributee, or of a creditor, where the assets of the deceased are inadequate to the payment of debts. The allowance of the claim is prima facie evidence of its correctness, and the executor or administrator need offer no further evidence to sustain it. The onus probandi is shifted from the executor or administrator to the creditor; and in most cases under circumstances, where the proof given in support of it, is wholly unknown to him, and consequently he can have no means of shewing its insufficiency. It is a proceeding ex parte in its nature, and of which no record is required to be kept; the only evidence of its existence is the endorsement upon the voucher, which remains with the executor or administrator, unless he gratuitously files it with the register. The executor or administrator then has nothing to [**21]  do but to pass his account before the Orphans court, pocket or destroy his voucher; and the distributee has no means of impeaching the allowance made him, or disproving its correctness. From an order placing a distributee or creditor in such a condition, there surely ought to be a right of appeal.
The appellants' first point cannot be sustained. The authority of the Orphans court, in passing claims against the estate of a deceased, is not as has been contended, confined to strictly legal claims, but embraces every species of indebtedness, whether legal or equitable in its nature; nor is their power to pass accounts limited to such as are proved according to the requisitions of the act of assembly of 1785, chapter 46.
They do not derive their power of passing open accounts, as is assumed by the appellants' counsel, under the 8th section of the 9th sub ch. of the act of 1798, ch. 101, nor are their powers on that subject imperatively restricted by it. The object of that section of the testamentary system, was to restrict the authority of executors and administrators in the payment of open accounts, not passed by the Orphans court, to such as were authenticated in the mode thereby prescribed. [**22]  The powers of the Orphans court in passing accounts anterior to their payment, is derived from the 2d section of the act of February session, 1777, ch. 8, and the 1st section of the 15th sub ch. of the testamentary system.

 [*337]  The will of Doctor Albert Du Fresne is inartificially drawn, and no interpretation can be given to it in reference to the question now before us, which can be regarded as free from all objection. But on collating the 2d, 3d, 4th, 5th, and 8th clauses of the will, we are of opinion that there is no such distinct and unequivocal expression of the intention of the testator, to limit the legacy to his grandaughters, to their sole and separate use, to the exclusion of the marital rights of the husband, nor such proof in the record of an agreement by Josias Stevenson, the deceased husband, to hold or use it as such, as could be enforced by any judicial tribunal. The intention of the testator we think is expressed in the fifth clause of his will, and that upon the marriage of Elizabeth Reigart the legacy vested absolutely in her, and that such portion of it as was received by the deceased husband during coverture, in virtue of his marital rights [**23]  became his absolute property, and consequently, that the claim now preferred by his widow against his estate cannot be supported. This court will sign a decree reversing the order of the Orphans court with costs, to the appellants, both in this court and in the court below, and dismissing the appellees' petition.
DECREE REVERSED.  

12 of 47 DOCUMENTS 

JESSE POCOCK vs. JOSHUA HENDRICKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 421; 1837 Md. LEXIS 2 

June, 1837, Decided 

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

This was an action of trover brought by Jesse Pocock, against Joshua Hendricks on the 10th May, 1832. The defendant pleaded not guilty, and limitations on which issues were joined.

At the trial of this cause, the plaintiff offered in evidence a bill of sale of a negro boy, named Richard Hughes, dated the 28th September, 1825, from Mary Hare to him, for the consideration of $ 100, which was duly acknowledged, and recorded.

And also offered evidence, that said Mary Hare previous to the year 1825, and at that time was in the possession of the said Dick, and exercised acts of ownership over him; that soon after said bill of sale, the said boy came to the farm of the plaintiff, and continued working there until about the last of February, or first of March, 1828, when he went to his former mistress, the said Mary Hare, who resided in the state of Pennsylvania, with the said defendant; that the said Mary Hare was of infirm health, and that the said Dick returned to her with the consent and approbation of the plaintiff, who declared that he might remain in the service, and employment of the said Mary Hare as long as she lived. That the said [**2]  Mary Hare died about the 6th of January, 1832, and that between the 20th and 23d of the same month, of the same year, the plaintiff demanded the said Dick of the defendant, in whose possession he was in Pennsylvania, who replied that the boy belonged to him, and that he would defend him with his last cent.

The defendant then, to support the issue on his side, offered in evidence certain depositions, taken under a commission, viz:

Maria Hutchens deposed, that she has known Jesse Pocock ever since she can remember, and that she has known Joshua Hendricks for about twenty-seven, or twenty-eight years. That she knew a coloured boy named Dick--thinks Dick Hughes--he was the son of Cass Johnson, a coloured woman, and that his father's name was Jim, thinks Jim Hughes--and that said Dick or Richard was claimed and owned by Sarah Galloway--she further states that her means of knowing the above facts are or were as follows--about twenty-four years ago, precise time not recollected, Sarah Galloway now Sarah Hendricks, then residing on "My Lady's Manor," near Gunpowder falls in Baltimore county, state of Maryland, purchased a black woman, named Cass Johnson, for a term of years from [**3]  Philip Garretson, and paid for her; and that after said Cass became the property of the said Sarah Galloway, and before said Sarah was married to Joshua Hendricks, said Cass had two children, one named Joshua and the other Dick, and after said Sarah was married, she sold Josh to Charity McClung, for $ 100, and said Dick was left with Mary Hare, the mother of said Sarah Galloway, now Sarah Hendricks, to wait upon her, said Mary Hare, as long as she the said Mary lived, and at said Mary's death, was still the property of the said Sarah Galloway. Mary Hare only claimed the services of said coloured boy Dick, as long as she lived--said Sarah Galloway lived with her mother, Mary Hare, before her marriage, and said blacks were kept about the house. Deponent further states, that she always understood from Mary Hare, that said coloured woman Cass, and her two children, Josh and Dick, were the property of said Sarah Galloway, now Sarah Hendricks, and that said Mary Hare, had, nor held, no other claim upon said coloured woman and her children, than the services of said Dick, as long as she the said Mary lived--that she recollects, that after Sarah Galloway was married to Joshua Hendricks, said [**4]  coloured woman Cass, remained with Mary Hare, and had two more children, Rachael and Luce.--Witness thinks the reason why said coloured woman remained with Mary Hare, after said Sarah Galloway was married, was that she the said Sarah could not take her to the state of Pennsylvania, to which state she removed. Witness further states, that she is the daughter of the said Mary Hare, and is the sister of the said Sarah Galloway, and lived between one or two miles from her said mother's residence, in Baltimore county, Maryland, at the time she has spoken of. After said Sarah was married, she sold the said Cass' time, to whom, she does not recollect.

Jesse Hutchens deposes, that he has known Jesse Pocock ever since he has known himself, and that he has known Joshua Hendricks for about twenty-eight years past.--That he knew a coloured boy called Dick, or Richard Hughes--he was the son of Jim Hughes and Cass Johnson, who were coloured people. He, witness, states that he lived, at the time he was acquainted with the facts, he has and is about to state, between one and two miles from the residence of Mary Hare, in Baltimore county, state of Maryland, before, at, and after the marriage of [**5]  Sarah Galloway, to Joshua Hendricks, and always understood at that time, and ever since, that Sarah Galloway before her said marriage, purchased said coloured woman Cass, for a term of years, from Philip Garretson, and paid for her, and that said Cass had two children, named Josh and Dick; and he, witness, further states, that he always understood said coloured woman Cass, and her two children, were the property of said Sarah Galloway; this he understood from Mary Hare, the mother of the said Sarah. Witness further states, that he is very certain, that old Mrs. Hare, never claimed the black boy Dick, as her own property, but only the services of the said Dick, as long as she lived, to wait on her. Sarah Galloway, now Sarah Hendricks, before her marriage, lived with her mother Mary Hare, and said coloured woman, and her two children were kept on the place.--Witness recollects of Sarah Galloway selling the boy Josh to Charity McClung, wife of Joseph McClung, for $ 100. Witness states, that Cass remained with Mary Hare, sometime after Sarah Galloway was married, and removed to Pennsylvania.

Joshua Green deposes, that he is well acquainted with plaintiff and defendant, that he has [**6]  seen the negro boy Dick frequently. He was said to belong to Jesse Pocock. That some time after this same black boy, now in dispute, between Jesse Pocock and Joshua Hendricks, was in the possession of Joshua Hendricks, I saw Jesse Pocock, and asked him if he was not afraid that his black boy would be free, by the laws of the state of Pennsylvania, to which Jesse Pocock replied and said, that the black boy did not belong to him, that he belonged to Joshua Hendricks, or he is a part of Sally's estate, and is none of mine.

The defendant further offered evidence to prove that Mary Hare, came to reside with witness's father, the defendant in this cause, in the state of Pennsylvania, in the year 1827, and thus continued to reside until her death, which occurred about the 6th January, 1832, that said boy Dick came to said defendant's to be in the service of Mrs. Hare, in February or March of the year 1828. That shortly after he returned to Mr. Pocock, his former master, for his clothes, and then coming back, he remained until the first of the ensuing May, at which time he was hired to a certain Elijah Galloway, who resided in the city of Baltimore for the benefit and advantage, and by [**7]  the direction of Mrs. Hare, where he continued until late in the following fall--that being sick, he was again carried by the daughter of Mrs. Hare to the state of Pennsylvania, where he remained about six or eight weeks, when he returned to Galloway's in Baltimore, and there staid to complete his time of two years. About the 1st September, 1830, the said boy went again to Pennsylvania, and immediately after worked with one Walker, who resided in New Market, Maryland, for one month; that during the one month the boy returned to defendant's every Saturday night, where his washing was done for him, that by the end of the said month, the said boy, about the 1st of October, went to the defendant's house, where he continued until about the last of March, 1831, when he was sent again to the said Galloway's with whom he continued to live, and with whom he was when the witness left the state of Maryland, on the 1st of October, 1831, to go to the state of Ohio, after which he knew nothing further of the said Dick. The defendant further offered evidence that the plaintiff and defendant lived within a mile or two of each other, the defendant in Pennsylvania, the plaintiff in Maryland; that the [**8]  said boy Dick, between the years 1828 and the death of Mrs. Hare, was frequently in the state of Maryland, once or twice at a husking match on the farm of the plaintiff, also at a camp meeting in the neighborhood, and that he appeared at all times openly, and it was notorious to the neighbors that he resided with the defendant for the period above stated. The defendant also offered evidence to prove that on the morning of the 28th of September, 1825, the plaintiff waited on Mrs. Hare, and requested her to give him an instrument lest he should have money to pay. Witness persuaded him to wait until Elisha Galloway, who was the son of Mrs. Hare, should return from market, and witness kept them from going for an hour, but they afterwards went--something was said in this conversation about the boy Dick, and his being an indemnity, and about the suit of McClung's, and that plaintiff said he did not wish to claim the boy unless he should be obliged to pay the money. The defendant proved that Mrs. Hare could not write or read writing, and then offered in evidence from the records of Baltimore county court, certain docket entries in four suits, the two brought by McClung against Mrs. Hare,  [**9]  and the others by the same persons against the plaintiff as security of Mrs. Hare on an administration bond, and also offered in evidence an order to enter the judgments in said suits, satisfied.

The defendant then proved that the money to satisfy said judgments had been paid to the amount of $ 117.67 by Elisha Galloway, the son of Mrs. Hare. The defendant further proved, that in a conversation which the witness had with the plaintiff a short time before Mrs. Hare's death, he observed, "are you not afraid that Dick will be free," to which the plaintiff replied, "that he had the boy as a security and he believed the money was nearly paid up." The plaintiff then further to prove the issue on his part, offered in evidence by William A. Schaeffer, a competent witness, that he was a magistrate, and acted in that character in the fall of 1825, that on the day of the date of the said bill of sale, he was applied to by the plaintiff and the lady who executed the same, but whom he does not think he would now know if he were to see her, to prepare an instrument of writing for them, that he accordingly wrote the said bill of sale, and witnessed the signature of Mrs. Hare to it, and took [**10]  the acknowledgment--that it has been a long time ago, and he does not recollect the conversation when the transaction occurred--that he is now, and was at that time, frequently called upon to prepare bills of sale and other instruments, and that he had by him forms of absolute and conditional conveyances by way of mortgage; and the plaintiff offered to prove further by the said witness that it was his habit to ask those who called upon him to prepare papers for them, whether they desired an absolute or conditional conveyance? That he has no doubt that such an interrogatory was in substance, put to the said Mary Hare and the plaintiff in the present instance, and that he never failed to shape the paper according to the expressed object of the parties.

To the whole of this last piece of evidence, the defendant objected as incompetent, which objection being sustained by the court, (Purviance, A. J.) the plaintiff excepted.

2d EXCEPTION.--The plaintiff then proved by the said witness, that he was in the habit of reading the papers after they were written, to those for whom they were prepared, and especially if they were workmen. The counsel for the plaintiff then asked the said [**11]  witness whether from such his habit, he had any doubt that said bill of sale had been read to Mrs. Hare by him. To this question the counsel for the defendant objected on the ground, that any belief or impression of the witness drawn from his customary mode of transacting business with those who called on him to prepare papers, was incompetent evidence to go to the jury, that the said bill of sale was read to Mrs. Hare before she executed the same, which objection being sustained by the court, (Purviance, A. J.) The plaintiff excepted.

3d EXCEPTION.--The plaintiff further proved that witness went to the meadow of the defendant, late in the summer or early in the fall of 1825, and that the defendant being there, said to him, "tell your father, (that is the plaintiff in this cause) to get Dick from Mrs. Hare or he will never get any thing, and that if he, the plaintiff, did not get him, Elisha Galloway would," and witness accordingly repeated the above message to his father, who about two or three weeks afterwards went to the house of the defendant, who in the presence of his wife made the same statement in substance as herein just before stated. The plaintiff further to support [**12]  the issue on his part, offered in evidence a bill of sale from the said Mary Hare to Sarah Hendricks for negro Cass and her children Rachel and Luce, dated the 15th day of May, 1817, and proved the due execution thereof by the said Mary Hare, and the acknowledgment and recording thereof.

Whereupon the plaintiff prayed the court to instruct the jury:

1. That if they believe from the evidence that Mary Hare had title to the boy Dick, or not having title if they believe that Hendricks was his owner, and advised the plaintiff to get him of Mrs. Hare, who accordingly applied to Mrs. Hare, and obtained from her the bill of sale of the 28th September, 1825, and that the said bill of sale was duly executed and acknowledged, and the plaintiff obtained possession of the said boy under the same, and peaceably continued therein until October, 1828, at which time the said boy by the direction and with the consent and permission of the plaintiff, went into the service of Mrs. Hare for her life, and continued therein until her death, which happened about the 6th January, 1832, and that the plaintiff about the 20th and 28th of the same month and year, did demand the delivery of the said [**13]  boy from the defendant, who was in possession of him, and that the defendant refused to deliver him, asserting title in himself, then the plaintiff is entitled to recover.

2. That there is no evidence in the cause from which they can infer, that the plaintiff practised any concealment, misrepresentation, or fraud, to induce the said Mary Hare to execute the bill of sale of the 28th September, 1825, and that all the evidence offered by the defendant, to impeach the title of the plaintiff under said bill of sale, by showing that although absolute on its face, it was yet designed by the parties, as nothing more than a mortgage or indemnity, is wholly incompetent for that purpose, and cannot be considered by the jury.

3. That if they believe the title to the negro boy Dick was in Mary Hare, or if they believe the title not being in her, but in the defendant, and that the defendant advised the plaintiff to obtain the said boy Dick from the said Mary Hare, and that said plaintiff did in accordance with this advice apply to the said Mary, and get from her the bill of sale mentioned in the evidence, then the plaintiff is entitled to recover; although they should find, that it was [**14]  agreed by the plaintiff and the said Mary Hare, that the said boy should be nothing more than an indemnity to the plaintiff, in the event of any loss by her sustained in the suit then pending against him in Baltimore county court as surety for said Mary Hare; provided the jury further believed, that the said plaintiff permitted the said boy to be hired out and otherwise employed for the benefit of Mrs. Hare during her life only, and that after her death he did demand the delivery of the said boy, being in the possession of the said defendant, who refused the same, claiming the property in himself.

4. If the jury believe, that Mrs. Hare did in fact, execute and acknowledge the bill of sale of the 28th September, 1825, and that the possession of the boy was delivered to the plaintiff, that the prima facie title of the plaintiff and his possession there under, cannot be called in question by the defendant, and under the general issue in this suit, by any allegation of fraud practised by the plaintiff on Mrs. Hare in the obtension of the said bill of sale.

Which prayers being refused by the court, (Purviance, A. J.) the plaintiff excepted.

4th EXCEPTION.--Whereupon the counsel [**15]  for the defendant prayed, that if the jury shall believe from the evidence, that the boy in question, was in the year 1828, sent by the plaintiff or with his approbation and consent, out of Baltimore county, state of Maryland, into the state of Pennsylvania, to live in the service of Mrs. Hare, at that time a resident of the state of Pennsylvania, during the balance of her life; and that the boy did actually go, and for some time remain in her service; and if the jury shall further believe that the said boy was afterwards brought back, or sent into the state of Maryland to reside, that then by the laws of this state, the boy is free, and the plaintiff is not entitled to recover. Which instruction being given by the court, the plaintiff excepted.

The verdict and judgment being against the plaintiff, he prayed an appeal to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Evidence by a justice of the peace, that when called upon by parties to prepare conveyances for them, it was his habit to inquire whether they desired absolute, or conditional conveyances, that he had no doubt such inquiry was made in the present instance, and that he never failed to shape the paper according to the expressed purpose of the parties; and that he was also in the habit of reading the papers, after they were written, to those for whom they were prepared, and especially if they were workmen: Held to be inadmissible.

It is for the jury to decide, whether a variety of facts and circumstances admissible as evidence, are sufficient in point of fact to prove that a bill of sale was fraudulently obtained.

If the instrument under which the plaintiff claims in an action of trover, is proved, or conceded to have been obtained by fraud, it is of no validity; and the defendant may rely upon such invalidity as a bar to the action.

The act of assembly prohibiting the bringing or importing into this state of slaves for sale or to reside, provides, that persons brought into the state contrary to the act, if slaves before, shall thereupon immediately be free; but to entitle the slave to his freedom in such case, the bringing into the state, must be shown to be by the owner, or by his authority, or with his approbation. If a stranger without the authority or approbation of the master, bring a slave into the state, such slave is not entitled to his freedom.  

COUNSEL:
R. JOHNSON, for the appellant, abandoned the first and second exceptions.

Under the third exception he insisted, that each of the four prayers offered by the plaintiff, were erroneously rejected in part, or in the whole.

1. Because upon the hypothesis of fact, stated in the first prayer, of [**16]  which there was evidence before the jury, it was not competent for defendant to impeach the validity of the bill of sale, under which the plaintiff claimed.

2. Because, as assumed in the second prayer, there was no evidence to impeach the said bill of sale, on the ground of mistake or fraud.

3. That under the facts assumed by the third prayer, the plaintiff's title was a good one, as against the defendant.

4. That the bill of sale being executed, and the slave delivered in pursuance of it, the title was a good one as against the defendant.

Upon the fourth exception, he insisted that under the circumstances of the case, it was not in the power of the defendant to avail himself of the importation into the state of the slave in controversy, upon the hypothesis stated in the defendant's prayer.

This assumes that the plaintiff once had property in the negro, and it is predicated on all the evidence in the cause. It finds the defendant claiming title to the negro, and presents two contending parties, one demanding the slave by his action, and the other claiming to retain him. The defendant failing to show title sets up the freedom of the negro, yielding up his own [**17]  right. But freedom cannot be tried in this collateral way. The negro must assert that right, which he has not done. The prayer does not assume, that the plaintiff brought the negro back from Pennsylvania, nor that he was brought back to reside, or for sale. The Pennsylvania law is not before the court, and there is nothing which forbids a Maryland master, from sending his slave to Pennsylvania, and taking him elsewhere. The plaintiff did not bring the negro back, and if sent here by a stranger, it does not produce his freedom. Under our laws, the effect of the residence in Pennsylvania, is not before the court, and it is the importation into Maryland, which gives freedom here. The carrying out, and the importation must be voluntary, and by one of full age, and the master must assent to it.

If there is error in any one instruction, material to the plaintiff's right, there must be a procedendo.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*431]  DORSEY, Judge, delivered the opinion of the court.
The objections raised in the two first exceptions taken by the plaintiff were rightly sustained, according to the principles settled [**18]  in the case of Flack vs. Green, 3 G. & J. 474.
The next inquiry is, did the county court err in rejecting the plaintiff's four prayers in the second bill of exceptions. The propriety of granting the three first prayers depends entirely upon the question, whether there was evidence in the cause legally sufficient to have been left to the jury to find the fact; that the bill of sale from Mary Hare was fraudulently obtained by the plaintiff. There is no evidence other than the bill of sale itself; that any consideration was paid by the plaintiff to Mary Hare; or that they stood in any relation to each other, which rendered it probable that such a bill of sale would have been executed, but upon full and adequate consideration; nor is it in proof, that the bill of sale was ever read, or its import communicated or explained to Mary Hare. It is in evidence that she could neither 

 [*432]  write, nor read writing; that by the agreement of the parties the instrument to have been executed was not an absolute bill of sale, but was intended to secure the plaintiff from loss by reason of his securityship for Mary Hare; that he acknowledged the negro was not his [**19]  property but belonged to the defendant, (who married Mary Hare's daughter,) as part of his wife's estate; that he held the negro in question as security for a liability which was nearly or quite extinguished; that after obtaining the bill of sale and possession of the negro, and after his liabilities were discharged, he suffered the negro slave to go to Mrs. Hare, in Pennsylvania, and remain with her or in her service more than three years, and until the time of her death; and that when asked if he were not afraid he would lose his slave by reason of the emancipation laws of Pennsylvania, he replied, that he had the boy as a surety, and that he believed the money was nearly paid up. Whether these facts are sufficient in point of fact to prove that this bill of sale was fraudulently obtained, it is the exclusive province of the jury to determine; but that they are legally sufficient to be left to the jury to be by them considered, in determining the question, we entertain no doubt. As the fourth prayer which we are called upon to decide is made upon the concession that the bill of sale was obtained by actual fraud practised by the plaintiff, we have only to say that [**20]  the instrument in question being at law of no validity, we can see no reason why the defendant may not rely upon its invalidity in bar to the plaintiff's action.
In the last exception the prayer on the part of the defendant would have been rightly granted had it called on the jury to find one additional fact, viz: That the bringing of the negro back into the state of Maryland to reside, was the act of the plaintiff, or was done by his authority, or with his approbation. In granting the prayer, the county court have in effect said, that if the bringing the slave to Maryland to reside was the act of a stranger without the authority or approbation of the plaintiff, still the slave is entitled to his freedom. Such a decision is neither conformable to the 

 [*433]  letter or spirit of the act of assembly, which after prohibiting the bringing or importing into this state any slave for sale or to reside, provides that, any person brought into this state as a slave, contrary to this act, if a slave before, shall thereupon immediately cease to be the property of the person or persons so importing or bringing such slave within this state, and shall be free. We concur with the county [**21]  court in sustaining defendant's objections to testimony taken in the first and second exceptions; and in all their refusals to grant the prayers made on behalf of the plaintiff, but dissent from the instruction given to the jury at the instance of the defendant's counsel as stated in the third exception, and therefore reverse their judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

13 of 47 DOCUMENTS 

LUCY HARWOOD, HARDESTY, et al. vs. JOSHUA JONES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 404; 1839 Md. LEXIS 16 

December, 1839, Decided 

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

The bill in this cause was filed on the 21st January 1834, by Joshua Jones, alleging that, a certain John R. Jones borrowed the sum of $ 2000 from Lucy Harwood, and to secure the same gave his note under seal, bearing date 4th August 1829, with the complainant as security therein, and carrying interest from date; that the said note was delivered to the said Lucy, and remained in her hands for some time; that John R. Jones was in mercantile business in Baltimore, and became largely indebted; that the firm of Samuel Jones and Richard S. Hardesty, had endorsed for him to a considerable amount, and becoming alarmed therefor, called upon the said John R. Jones for indemnity; that he, in order to quiet the fears of Jones & Hardesty, did in February 1830, give to the said Samuel Jones, the acting partner of the said Jones & Hardesty, a bill of sale of all his stock of goods in the store and cellar he then occupied in the city of Baltimore, and all other personal property which he had in his possession or in any manner belonging to him; that the bill of sale, though absolute upon its face, was, at the time it was executed and delivered [**2]  to the said Samuel Jones, only designed as collateral security to the firm of Jones & Hardesty, to secure them against any loss that may arise from their said endorsements, and was not to have been put upon record until it met with the approbation of complainant, who had become responsible for the said John R. Jones as security in Lucy Harwood's note; that as soon as complainant heard of the above mentioned transaction, between the said John R. Jones and Samuel Jones, as the acting partner for and on behalf of Jones & Hardesty, he felt some anxiety in relation to his responsibility for the said John R. Jones to the said Lucy, and immediately went to Baltimore to investigate the whole matter, and so far as he could with propriety to guard against his aforesaid responsibility; that on his arrival John R. Jones expressed great confidence in his ability to meet all demands upon him, and in order to quiet the fears of complainant, offered to transfer to him other notes as collateral security to protect him from any loss that might arise by virtue of his responsibility in Lucy Harwood's note, but Samuel Jones, who was one of the firm of Jones & Hardesty, and acting for, and on behalf of [**3]  the said firm, contrary to the aforementioned understanding between the parties, placed upon the records of Baltimore county the aforementioned bill of sale, and now pressed for the transfer of the books, notes and accounts of the said John R. Jones, stating that, he had a bill of sale of the goods and other personal effects, and that unless the proposed transfer was made, he would proceed under the bill of sale, and immediately close up the store of the said John R. Jones. To this proposed transfer the complainant objected, unless he could see how Lucy Harwood's note could be provided for; that the said Samuel Jones, acting for, and on behalf of the said Jones & Hardesty, and for their benefit, then promised that, if the complainant would waive his objection to the proposed transfer of the said books, notes and accounts, that he would obligate himself to pay out of the effects of the said John R. Jones, the said note, and that if the effects of the said John R. Jones should not hold out to pay his debts, that the complainant should under no circumstances lose more than two hundred dollars. With this understanding, your orator did not accept the proposed transfer offered on the part [**4]  of the said John R. Jones as collateral security, and waived his objections to the transfer to the said Samuel Jones, acting on behalf of the firm of Jones & Hardesty, and the transfer of the books, notes and accounts were accordingly made.--That although the said bill of sale and transfer of books upon their face appear to be to the said Samuel Jones in his individual capacity, yet in truth, and in fact, the said transfers were made to him as the acting partner of Samuel Jones and Richard S. Hardesty, with the consent of the said Hardesty, and for the benefit and advantage of the firm: that at the time the books, &c., of the said John R. Jones were transferred as aforesaid, it was understood and agreed between the parties, that the said Samuel Jones and Richard S. Hardesty should take possession of the goods and other personal effects of the said John R. Jones, mentioned in the said bill of sale, and make sale of them to the best advantage; to collect all monies due to the said John R. Jones on notes, open accounts, or in any manner otherwise, and to pay his debts as soon as the prudential management of his affairs would permit: that the said note of Lucy Harwood was particularly [**5]  to be provided for, and paid as soon as it could be conveniently done; and that the said Samuel Jones and Richard S. Hardesty were to pay the interest accruing on the same until paid; it being for borrowed money; and by the custom of merchants always considered entitled to a preference among mercantile men, where the party is not a petitioner for the benefit of the insolvent laws, but settles his affairs with his creditors by reference; that it was further understood that the said Jones & Hardesty were to furnish the said John R. Jones with the sum of $ 500 to take care of himself and family; and that as soon as all the debts of John R. Jones were paid, that the said Samuel Jones and Richard S. Hardesty were to give him up his books, and all other property that should remain, and assist him in recommencing business; all which it was supposed could be effected by the fall of 1830, and in case it should so result, which was not anticipated, that the effects of John R. Jones should not be sufficient to pay all his debts, that then complainant was to be answerable for $ 200 upon Lucy Harwood's note, and the said Jones & Hardesty were to pay the balance; that Jones & Hardesty, with this [**6]  understanding and agreement, did accept and enter upon the execution of the trust reposed in them as aforementioned, and went on to sell the goods and personal property of the said John R. Jones, mentioned in the said bill of sale, and to collect debts due him to a considerable amount, to what extent your orator has no means of ascertaining. But complainant has been informed and so charges, that the goods and other personal property, and the debts due to the said John R. Jones, and which passed into the hands of Jones & Hardesty, were amply sufficient, with proper management of the trust reposed in them, not only to pay the amount for which they had endorsed, and the note of Mrs. Lucy Harwood, but all other debts of the said John R. Jones; that neither Jones nor Hardesty has executed the said trust, nor rendered any account thereof, although repeatedly requested so to do; that Samuel Jones died about the 15th October 1831, and that John R. Jones has since filed his bill in Chancery, against the said Richard S. Hardesty, the surviving partner of Samuel Jones, and Ann Jones, executrix of Samuel Jones, alleging the aforementioned trust, and claiming a large balance; that Samuel Jones [**7]  during his life regarded himself bound to pay the said note of Lucy Harwood, and by virtue of his undertaking to pay the debts of the said John R. Jones, and from that time punctually paid the interest accruing upon it so long as it remained in the hands of the said Lucy Harwood, and the said Hardesty since the death of Samuel Jones has paid the interest up to August 1832; that about the time of this transaction the said Jones & Hardesty were partners in another firm, composed of Dennis H. Battee, Samuel Jones and Richard S. Hardesty; that although the parties composing this last mentioned firm, became desirous to dissolve their connexion, and it was accordingly agreed that the said Dennis H. Battee should purchase out the other two members of the firm, yet when they were about to carry into effect their proposed dissolution, Samuel Jones informed the said Dennis H. Battee that the said Lucy Harwood had the aforementioned note of his brother John R. Jones, with Joshua Jones as security therein, which said note Jones & Hardesty were bound to pay, and that if he would obtain the said note from said Lucy, they, Jones & Hardesty, would take it in part of their interest in the house of [**8]  Battee, Jones & Hardesty, which they were then about dissolving; that the said D. H. Battee did accordingly purchase the said note from his mother, the said L. H., who transferred it to him by endorsement, and the said Battee transferred and delivered it to the said Samuel Jones and R. S. Hardesty in part payment of their interest in the last mentioned firm; that by reason of the arrangement made by the said Jones & Hardesty with the complainant, in relation to the note of Lucy Harwood, and by reason of the fact of Jones & Hardesty undertaking to pay the debts of John R. Jones, and having in their hands a large amount of funds belonging to the said J. R. J., and still in the hands of R. S. H. in trust, subject to the payment of the said J. R. J.'s debts, more than sufficient therefor, the said note of Lucy Harwood was in equity and law cancelled and paid the moment it reached the hands of Jones & Hardesty; that after the death of Samuel Jones, the said R. S. Hardesty, as surviving partner, has gone on to manage the concerns of the said John R. Jones, and in that character delivered the said note to William E. Mayhew and J. G. Bernard, as collateral security for a small debt due them [**9]  by J. & H., though in fact and law it had been cancelled and paid, and that Mayhew & Bernard have no equity therein superior to that of Jones & Hardesty; that suit has been brought upon the said note at law in the name of L. H. for the use of Mayhew & Bernard against complainant and the said John R. Jones, the principal in said note, and judgment obtained on the 5th November 1833, for the whole amount thereof, with interest, &c.; that execution has been issued thereon, and the property of complainant levied upon in satisfaction of the whole amount of said judgment, and must be sold unless prevented by the interposition of this court.

The bill then proceeded to pray for a subpoena and injunction against the various parties concerned in enforcing the note of Lucy Harwood.

The complainant filed with the bill--

1. A copy of the single bill of John R. Jones and Joshua Jones, dated Annapolis, 4th August, 1829, payable three years after date, to Lucy Harwood, for $ 2000, endorsed Lucy Harwood and Dennis H. Battee.

2. The bill of sale from John R. Jones of "all the entire stock of dry goods, merchandize, personal property of every description, now in the store and cellar [**10]  of house No. 125, in Baltimore street, in Baltimore city, and all the property now in my possession, or belonging or in any way claimed by me, of which I now have possession, or claim upon, to Samuel Jones." This deed was absolute, and acknowledged and duly recorded.

No. 3. Short copy of judgment, Lucy Harwood use of W. E. Mayhew & Co. vs. John R. Jones and Joshua Jones.

Upon this bill subpoena and a writ of injunction was issued, prohibiting all further proceedings upon the judgment at law, &c.

The answer of Richard S. Hardesty admitted that, John R. Jones borrowed of Lucy Harwood the sum of $ 2000, and gave his note with Joshua Jones as security; that J. R. J. became involved; that Jones & Hardesty endorsed for him to a considerable amount, and that he, with a view to secure their firm from liability, made the bill of sale to Samuel Jones exhibited with the bill of complaint. The answer then denied that the bill of sale was not to be recorded without the approbation of the complainant. It also denies that S. J. told the complainant that he would obligate himself to pay out of the effects of the said John R. Jones, the said note to Lucy Harwood if the said Joshua Jones [**11]  would consent to the transfer mentioned in the said bill; but that the said Samuel Jones did say to the said complainant that he, the said Samuel, would try to collect enough out of the effects of the said John R. Jones to pay the said note to Lucy Harwood after the liabilities of the said firm to Jones & Hardesty were discharged, if the said John R. Jones would consent to his doing so, but the said J. R. J. would not consent thereto, and insisted upon the understanding, that as soon as the said paper endorsed by Jones & Hardesty was paid, his books and effects were to be returned, and that the note to Lucy Harwood would not be due for thirty months, and that he would pay it himself; that the said Samuel Jones did not before the said assignment and transfer of the books, notes and accounts promise to pay the note of the said Lucy Harwood. But that six or eight months after J. R. J. had made the transfer, the complainant attempted to make an arrangement with the said Samuel Jones for the payment of the said note, and after being much abused and teased by the complainant, the said Samuel did say to the said Joshua, that if he would never mention his name in the business and get John [**12]  R. Jones to bind himself, that he, the said John R. Jones, would directly nor indirectly mention his name in the business, and give him the said Samuel a receipt in full; he the said Samuel would receive two hundred dollars of the said complainant and pay the said note; but the said John R. Jones would not consent to any such arrangement. The defendant further answered, that the said bill of sale and transfer were made to the said Samuel for the express purpose of securing the payment of many notes to a large amount endorsed by the said firm of Jones & Hardesty, and that the said Samuel Jones was to sell the goods and collect the debts due John R. Jones, and pay the paper they were on, and then return the surplus if any to the said John R. Jones, but that the said Samuel Jones never made an agreement with the said John R. Jones or Joshua Jones to provide or pay for the said note, and further, that the said Samuel Jones made no agreement to pay the interest on the said note, and would not pay the interest on the same; but that when the said Lucy Harwood called for it he paid her one or two quarter's interest, but told her at the same time he would not pay her any more, as John R. Jones's [**13]  effects would not pay his debts; that borrowed money has the preference over other claims; that the said Samuel Jones during the year 1830 did furnish money to the said John R. Jones; that the said S. J. was to give up the books and effects as soon as the endorsed paper was paid, and this the defendant is still willing to do, but that said firm is not yet paid; that the said two hundred dollars mentioned in the said bill, was talked of eight or ten months after John R. Jones had quit business, but the said Samuel never at any time bound himself or the firm to pay the said note. The answer then admitted the partnership between Jones and Hardesty, and that they sold out to Battee; they did not tell him they were bound for said note, but that it was good, and they would receive it in part if he would borrow it in order to assist the said Battee to some capital; that in taking the said note they did not thereby intend to extinguish or pay it for the said John R. Jones, as they had no funds for that purpose, and this defendant considering the said note in full force against the said John R. Jones and the said complainant, did on the 17th November 1831 transfer the said note to Wm. E. Mayhew [**14]  & Co., to whom the firm of Jones & Hardesty were indebted $ 2,709.06. This defendant says that he cannot positively aver that no such promises were made by the said Samuel Jones as are alleged in the said bill, because it is possible that such promises, or one of them, may have been made by the said Samuel Jones without previous consultation with this defendant, and without subsequent notice to this defendant; but that if made, they were without the knowledge or consent of defendant previous or subsequent, actual or constructive, and this defendant does not believe that the said Samuel Jones made all or any of the promises alleged in said bill, touching the payment of said note; that the same was delivered by defendant to Wm. E. Mayhew & Co. as a mode of payment, and not by way of pledge or by way of collateral security, and they had no notice of any defence thereto; that the promises of Samuel Jones if made did not bind his partnership; that the promises alleged to have been made by him are void, without consideration and within the statute of frauds, as being only by parol; that Jones & Hardesty never intended to cancel said note, and its receipt from D. H. Battee as aforesaid would [**15]  not extinguish it.

The answer of W. E. Mayhew admits that he received the note in question from Jones & Hardesty to be collected, and when collected to be applied towards payment of the debt of $ 2800, due from the firm of Jones & Hardesty to W. E. Mayhew & Co., and the institution of the suit in Frederick county thereon to enforce its payment. This defendant was ignorant of the contract alleged in the bill.

The answer of John R. Jones substantially repeats the allegations of the bill; insists that Jones & Hardesty were bound to pay Lucy Harwood's note, and had received sufficient effects to discharge it.

The answer of Dennis H. Battee alleged that Jones & Hardesty were bound to pay Lucy Harwood's note out of the effects of John R. Jones, and Samuel Jones induced this defendant to procure that note, admitting the liability of Jones & Hardesty to pay it, and they would receive it from him as a payment, and then proceeded to detail the admissions of Samuel Jones, now deceased, in relation to said note in various particulars.

The answer of Lucy Harwood insisted, that Samuel Jones informed her that her note for $ 2000 was to be paid out of the effects of John R. Jones,  [**16]  and that Jones & Hardesty were pledged to release Joshua Jones from his liability for John R. Jones.

The complainants filed a general replication and a commission was issued. The questions decided upon the evidence are sufficiently set forth in the opinion of this court.

At the final hearing of the cause Frederick County Court (SHRIVER and T. BUCHANAN, A. J.) decreed that the injunction granted in this cause should be made perpetual, and that the defendants pay complainant's costs. From this decree the defendants appealed.  

DISPOSITION:
DECREE REVERSED IN PART.  

HEADNOTES:

Under the act of 1832, ch. 302, sec. 5, it is too late to object in the Court of Appeals to the admissibility of evidence, upon the ground that the witness from whom it was derived, was examined without notice to the party objecting, or was a party to the cause; the objection should be taken by exception in the Chancery Court.

The answer of a defendant in Chancery is not evidence against the other defendants, though prior to the filing of the answer, the former may have transferred to the latter all his interest in the subject matter of the controversy.

When a contract is reduced to writing, parol evidence of its contents is inadmissible, in the absence of all proof of fraud, surprise, or mistake.

A court of equity will not permit a party, who has received a valuable consideration for the performance of a parol agreement, to be fulfilled more than a year from its date, to set up the statute of frauds as a bar to its specific execution, considering such cases as without the purview of the statute.

The statute of frauds prohibits the establishing the liability of one person for the debt of another by oral evidence, but the statute does not apply to the case of a promise to a debtor, upon a full consideration, to discharge a debt due from such debtor to a third person.

A party is not precluded from going into Chancery for relief against a judgment, upon the ground that he should have defended himself at law, when the application to equity rests upon an engagement embraced by the statute of frauds, and void at law; though attended by circumstances which, in equity, take it out of the operation of the statute.

Nor is he so precluded when the defence is upon acts done in execution of an express trust.

Objection cannot be taken in the Court of Appeals to a variance between the allegations of the bill, and the proofs, unless exceptions are filed in the Court of Chancery according to the 5th section of the act of 1832, ch. 302.

In an action by an assignee of a single bill, as authorised by the act of 1829, ch. 51, all and the same defences, legal or equitable, are open to the debtor, as if the action was brought in the name of the assignor.

If however the assignee, prior to the assignment, seeks information upon the subject from the debtor, and he withholds it, the latter must submit to the consequences which are visited upon a fraudulent concealment.

All partnership property, and responsibilities, upon the death of one partner, survive to the survivor; and in a bill in chancery in relation thereto, it is not necessary to make the personal representative of the deceased partner a party.  

COUNSEL:
By W. SCHLEY and WORTHINGTON for the appellants, and

By PALMER for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*414]  DORSEY, J., delivered the opinion of this court.
Before we examine the facts in this case, it is necessary to dispose of the questions raised, as to the admissibility of portions of the evidence taken in the cause, because upon their determination will in some measure depend what are the facts on which we are called to decide.
The first objection of this kind was taken to the testimony of Charles A. Warfield, who it appears was examined as [**17]  a witness on the part of the appellants, without any previous notice thereof being given to the appellee. Previous to the act of assembly of 1832, ch. 302, sec. 5, such an objection to testimony, if taken in this court, must have been sustained. But the act of assembly referred to, is conclusive against the allowance of any such objection in the appellate court; unless it appears by the record that it was raised by way of exception in the court below.
The next objection to the testimony is, to the evidence of Dennis H. Battee, who, it appears, though a defendant in the cause, was examined under the commission, without a previous order for that purpose having been obtained from the county court. Had this irregularity been made the subject of an exception to the testimony in the county court, it might have been available to the appellants in this court. But no such exception having been there made, the act of 1832 in terms the most imperative prohibits its being "noticed, or determined, or acted upon" by this tribunal.
The questions of evidence following those of which we have spoken, arise upon the answer of Lucy Harwood, one of the defendants in the court below. It is insisted, [**18]  on behalf of the appellee, that her answer is evidence against her co-defendants, who claim title under her. In support of this position it is asserted, that the declarations or answers of a nominal plaintiff, after he has assigned all his interest in the chose in action sued on, are evidence at law against the cestui que use: and being so at law, they are equally so in a court of equity. Without stopping to examine the correctness of the first branch of this proposition, that such declarations or answers are evidence 

 [*415]  at law to destroy the rights of the beneficial plaintiff; does the second branch of the appellee's position follow as a necessary consequence of the admission of the first? We think not. The principle, with the reasons upon which it is founded, that the answer of one co-defendant is not evidence against another, is stated with great perspicuity by the learned judge who delivered the opinion of this court in the case of Hayward vs. Carroll, 4 H. & J. 518, from which the following is an extract: "It is an established principle of evidence, that the answer of one defendant cannot be read in evidence against a co-defendant. If the complainants [**19]  were interested in establishing a fact by the evidence of a co-defendant, they might have examined him, as a witness, on interrogatories, and the witness then would have been subject to the cross-interrogatories of the other defendant. To withhold from such defendant the privilege of cross-examination, would be unjust, and this injustice must necessarily result from the practice of permitting the answer of one defendant to be read in evidence against a co-defendant." Now a nominal plaintiff cannot at law be compelled by the defendant to submit to examination as a witness in the cause. If we were then for this reason to concede the correctness of the first branch of the appellee's position, the second branch is not established by it; because, it is sustained by no such reason. A defendant in chancery, a nominal party, may be examined as a witness against his cestui que use, a co-defendant. It must, however, be admitted, that the appellee has referred to two adjudications, which, if followed by this court, would render the answer of Lucy Harwood evidence against her co-defendant Mayhew. And these decisions emanate from that learned tribunal, with which we have ever concurred [**20]  with confidence and differed with distrust.
The cases referred to are those of Field vs. Holland, 6 Cranch 8, and Osborn vs. The United States Bank, 9 Wheat. 738. We have given to them a thorough examination and respectful consideration, but not being convinced of their correctness by the reasons assigned in their support, and being unable to reconcile them to an otherwise unbroken series of authorities, 

 [*416]  both English and American, we do not hold ourselves bound to conform to them.
Entertaining these views, we cannot do otherwise than say, that the answer of Lucy Harwood is no evidence against the co-defendants. If her testimony were material to the appellee, he should have obtained it by examining her as a witness in the customary mode. As authorities in point on this branch of the case, see Phoenix vs. Dey & al., 5 Johns. 412. 1 Stark. Ev. 284, 285, and the cases there referred to. Hughes & Ballinger vs. Worley, 1 Bibb 200. Bartlett vs. Marshall, 5 Ky. 467. White vs. Robinson, 8 Ky. 569. Hunt & Blanton vs. Stevenson, 8 Ky. 570.
The next [**21]  objection to the testimony in behalf of the appellee is, that it is inadmissible, being oral evidence of a written contract between Samuel, Joshua and John R. Jones, which written contract, it is alleged, is the assignment executed by John R. Jones to Samuel Jones. If the oral contract referred to, had been reduced to writing by the parties, or if it was intended that the assignment should be such written contract of the parties; then might it be contended, in the absence of all proof of fraud, surprise or mistake, that the oral evidence offered by the appellee was inadmissible. But it is manifest from the proofs in the cause that the agreement entered into never was reduced to writing; and there is nothing in the record to show that it ever was intended to be reduced to writing. The assignment was not intended to be the written agreement of the parties; it was nothing more than an act done by one of the parties in execution of the oral agreement into which he had entered. With as much propriety might it be contended, if the assignment, instead of being in writing, had been orally made by an actual delivery to the trustee, under and in conformity to the agreement which [**22]  had been previously entered into, that such oral assignment or delivery was the only appropriate evidence that could be offered of the agreement. The oral contract in this case, made between the parties (apart from the time of its complete execution being postponed to a period beyond a year from its date, of the consequence 

 [*417]  of which we shall hereafter speak,) is as valid and obligatory, as if it had been reduced to writing. Suppose then the contract, at the time it was made, had been reduced to writing and signed by the parties, and subsequently, in execution thereof, this assignment had been executed by John R. Jones, would it be pretended that, the assignment was the written contract of the parties, and superseded and annulled the written agreement previously executed? Certainly not. So neither does it supersede or annul the valid oral contract previously entered into. It was not designed to be the written evidence of the contract of the parties, but the mere act of one of them, performed in execution of it, and upon no principle of reason, law or justice, can it have the operation attempted to be imputed to it. The testimony therefore is not objectionable on this [**23]  ground.
It has been objected to, also, on another ground, that being to be performed more than one year after the time the contract was entered into, the statute of 29 Car. 2, chap. 3, which has been pleaded, prohibits the establishment of the contract by other than written proof.
We think this defence can avail the defendants nothing. Under the assignment Jones & Hardesty have received a full and valuable consideration for the performance of their part of the agreement, and to permit them or those claiming under them, now to set up the defence of the statute in bar to the specific execution of the contract, would be a fraud upon the appellee, and in such cases courts of equity, interposing for the prevention of frauds, will decree the specific execution of the contracts, regarding such cases as without the purview and design of the statute.
And upon the same principle, they will interfere by injunction in a case like the present, to restrain a plaintiff from enforcing a legal right against all equity and conscience. Another objection insisted on against the testimony, is, that it is an attempt to establish by oral proof, a promise to pay the debt of another, contrary [**24]  to the statute of frauds. If this were an effort on the part of a creditor, seeking to charge a third person 

 [*418]  with a debt already due to him from another, there might be some plausibility in the argument.
It would be an effort to establish orally, two subsisting liabilities to the same person, for the same debt; which is clearly prohibited by the statute. But such is not the design, nor the effect of the testimony offered in this case. It is a new and original promise to a debtor, founded (as must be assumed in this aspect of the case) upon a full consideration to discharge a debt due by such debtor, and is no more a case within the statute, than it would have been if the promise had been, instead of paying a subsisting debt, to pay to the debtor a sum of money of the same amount.
Much has been said in relation to the declarations of John R. Jones, touching the matter in dispute in this cause. 'Tis true, they are testimony; no exception to their admissibility having been taken in the county court, as required by the act of 1832. But when discredited by the answer of John R. Jones, which is competent evidence for that purpose, they are entitled to no weight or consideration [**25]  in the determination of the case.
Having disposed of the several objections raised on the evidence in the cause, we will now proceed to consider the several legal grounds, which have been urged in bar to the relief sought by the appellee. And first in its order, is the objection to the jurisdiction of this court; the equity, it is alleged, upon which relief is sought in this case, being a complete legal defence, of which the appellee might and ought to have availed himself in the county court in the suit upon the bond. To this objection the answer is natural and easy. If the agreement were, as we are inclined to regard it, a promise on the part of Jones & Hardesty to pay Lucy Harwood's bond when it became due, more than two years afterwards, it was, as contended by the appellants, embraced by the statute of frauds, and therefore void at law, and could only be enforced in a court of equity upon the principles before stated. Upon another ground we think the appellee was not bound to have made his defence at law. The defence rested altogether upon matters 

 [*419]  done in execution of an express trust, where the effect of trustee's acts mainly depended on his intention in [**26]  doing the acts. In such a case we think the appellee was not bound (conceding to him the power to have done so) to have made his defence at law, but was at liberty to have gone for redress into a court of equity, where he might purge the conscience of the trustee in relation to the subjects matter in controversy.
The next reason assigned for the reversal of this decree is, that the promise of Jones in behalf of Jones & Hardesty, to pay Lucy Harwood's bond, is a nudum pactum; and therefore, of no obligation either at law or in equity. After reading the testimony, it is difficult to conceive upon what ground such a suggestion could have been made. We do not mean to discuss the question, further than to say, that the consideration proved, is abundantly sufficient to support a promise at law or in equity.
The decree of the county court, it is said, must be reversed on account of the variance between the allegations in the bill and the proofs in the cause. Whether there be such variance or not, we have deemed it unnecessary to inquire, because, according to our interpretation of the 5th section of the act of 1832, ch. 302, it is immaterial whether there exist such variance [**27]  or not; no exceptions having been filed in the court below, either to the admissibility of the evidence, or the sufficiency of the averments of the bill, the complainant is entitled to an affirmance of the decree in this court, if warranted by the proof, whether his allegata and probata correspond or not.
In behalf of the appellant Mayhew it is insisted that, under the act of 1829, ch. 51, he is authorised as assignee of the bond, to sue thereon in his own name, and consequently, that he took the bond discharged from the equity interposed by the obligor to its recovery. Without stopping to examine how far Mayhew is such an assignee, as under the act of 1829 is competent to sue in his own name, let us see how far, under the act of assembly, his rights as against the obligor have been protected and enlarged. The preamble to the act, as well as 

 [*420]  the enacting clause, shews that the design of the legislature was no further to extend the powers, or enlarge the rights, of the assignee, than to enable him to sue in his own name. And the saving clause reserves to the obligor or debtor, "all such legal or equitable defence, as might or could have been had and [**28]  maintained against the assignor or assignors, at the time and before notice of such assignment, in the same manner and to the same extent as if no such assignment had been made." We think, therefore, that this act of assembly does not impair or change the rights, either legal or equitable, of the obligor or debtor, whether the suit be instituted in the name of the assignor or assignee. But it is insisted that the equitable relief sought by the appellee in this case, cannot be extended to him, because Mayhew the assignee is a bona fide purchaser for a valuable consideration without notice. The assignee before us, stands entitled to no such protection, either upon principles of law or equity, if he were such a purchaser, or upon the facts in the cause as disclosed by the record. His answer--the only evidence upon the subject--demonstrates that he never purchased the bond; that he never paid or advanced one dollar as the consideration for the assignment; on the contrary, that it was placed in his hands for collection, and that when collected, he was to carry the proceeds to the credit of a debt antecedently due to him from Jones & Hardesty. Mayhew stands before the court clothed [**29]  with none of the attributes of a bona fide purchaser, without notice. But suppose he did--as respects the equities or defences of the appellee, either at law or equity, his condition is unchanged. He who takes an assignment of a chose in action not negotiable, takes it subject to all the legal and equitable defences of the obligor or debtor, to which it was subject in the hands of the assignor. If he accepts the assignment in ignorance of their existence, without using the appropriate means of acquiring a knowledge of them, the consequences are the merited result of his negligence. It is his duty, if he wishes to avoid the effects of secret equities, to seek information from the obligor or debtor, who, if he withholds it when properly applied to for its disclosure, 

 [*421]  must submit to the consequences which are visited upon fraudulent concealment.
An objection has been raised to the decree, that a necessary party is not before the court; that the administratrix of Samuel Jones should have been made a defendant. We think this objection furnishes no ground for the reversal of the decree of the county court. The complainants seek no decree, and, according to the proofs [**30]  in the cause, could obtain none against the representatives of Samuel Jones. In receiving the assignment, he acted for and in behalf of Jones & Hardesty, and was in effect the mere instrument, or conduit, through which the property assigned passed to them. By his death all the partnership property and responsibilities of the firm, devolved on Hardesty, as the surviving partner, who is bound for the performance of all contracts and engagements in relation to the partnership business, entered into by his deceased partner, for the benefit and in behalf of the firm.
The various legal objections to the decree before us having been examined, we must now see how far the proofs in the cause entitle the appellee to the relief he has received at the hands of the county court. Looking to the bill of complaint and the answer of Mayhew, and the uncontradicted testimony of the witnesses, William Turnbull and Dennis H. Battee, it satisfactorily appears to this court that Samuel Jones did, for and in behalf of the firm of Jones & Hardesty, for a valuable consideration, moving from John R. Jones, promise to pay the bond for $ 2000, to Lucy Harwood at its maturity,  [**31]  out of the funds received under the assignment made by John R. Jones; and that in the event of the insufficiency of those funds for that purpose, that Joshua Jones should contribute to its payment to the amount of two hundred dollars. It does not sufficiently appear by the proof in the record, that an adequate amount of the funds collected under the assignment, and applicable to the payment of the bond, have come into the hands of Jones & Hardesty, or of Hardesty the surviving partner. The pro forma decree of the county court is therefore erroneous in enjoining the judgment for the whole amount. The perpetual 

 [*422]  injunction awarded by the decree of the county court should have left the plaintiffs at liberty to issue an execution on the judgment, for the sum of two hundred dollars, with interest thereon from the day when the bond was payable, and costs of suit. This court will therefore pass a decree reversing the pro forma decree of the county court, but without costs, and decreeing a perpetual injunction as above mentioned, but without costs to either party.
DECREE REVERSED IN PART.  

14 of 47 DOCUMENTS 

RICHARD CATON vs. EMILY MACTAVISH, Executrix of CHARLES CARROLL OF CARROLLTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 192; 1838 Md. LEXIS 21 

December, 1838, Decided 

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

THIS was an action of assumpsit, brought by the appellant on the 17th April, 1834. The declaration was endorsed with an order to the clerk of the county court, to "docket this suit by consent, and enter the case referred according to the agreement in Carroll vs. McTavish and Caton, to Stevenson Archer and Richard B. Magruder, Esqr's, they having been selected according to the terms of that agreement.

J. GLENN, for Plaintiff,

R. JOHNSON, Defendant's Attorney."

The agreement referred to in the aforegoing order, is in form following, to wit:

"The following are the terms on which the differences now existing in reference to the probate of the last codicil to the will of Charles Carroll of Carrollton, have been adjusted by the counsel for the respective parties, who have been fully authorized for that purpose: 1st. The caveat is to be withdrawn, and the will and codicils immediately proved.

"2d. Mrs. Emily McTavish is to be appointed sole executrix, and should it be found necessary to enable her to act as such, an application, with the assent of all the parties, to be made to the legislature for a law to authorize and empower [**2]  her to act, she not to charge any commission, but not to be subjected to any expense.

"3d. Mr. McTavish and Doctor Stewart to renounce the trusts under the will and codicils, except as to the Caton branch of the Carroll family.

"4th. The deeds from Charles Carroll of Carrollton, to Mrs. Emily McTavish, and to Charles Carroll of Homewood, for parts of Doughoragen Manor, to be confirmed, either now or hereafter, if required, by the several parties to this agreement, or their representatives.

"5th. The claims of Mr. Charles C. Harper, Mr. Charles Carroll of Homewood, and Mrs. Emily McTavish, and their respective branches of the family, for negroes, &c. received from the testator since the last codicil aforesaid, made in 1831, as also the claims of Mr. and Mrs. McTavish, for the notes of Charles Carroll of Carrollton for $ 14,000, and the contracts in reference to the buildings on the Folly Farm, the materials, hauling, &c. not yet paid or settled for by the estate of Charles Carroll of Carrollton, to be referred to Judges Stevenson Archer and Richard B. Magruder, to be decided by them, and should they differ, they are to choose a third person, and then the award of the [**3]  majority of the three to be final between the parties.

"6th. The award of Richard Caton to be opened, and the subject matter of it to be referred to referees to be chosen in the manner herein after specified, the referees to act under the same instructions and authority as the former referees who made said award were instructed and authorized to do, and as if Mr. Carroll's letters to the former referees had been directed to them. A case to be docketed against the executrix, and this reference to be under a rule of court, to which the terms of this stipulation are to apply. The award as it now stands, shall not be impugned or impaired by this assent to open it, should this reference by any means be frustrated, but it is to remain in full force and operation as it now does, or ever did. The referees are to make their award during the present year, should they not, then this reference to be void. The referees are to be paid equally by the parties for their services--the counsel on each side are to name two persons, from whom each is to select one--the two thus selected to be the referees, and if they differ, then they to choose a third person, and the award of the majority to be [**4]  final. Mrs. McTavish is not to pay Mr. Caton's award, nor to do any thing to give validity to said award until a new award is made, or Mr. Caton recovers his claim by a suit at law in the event of no award taking place.

"7th. In the litigation or examination before the arbitrators of the matters referred, the questions involved in the several issues not to be agitated, in other words, it will not be contended in opposition to the claims of Richard Caton and Mr. and Mrs. McTavish, or any of them, or those of any members of their families, against Mr. Carroll's estate, that Charles Carroll of Carrollton was incompetent, or that he was subject to the undue dominion or under the undue influence of any one, or that he was urged by any importunities which he was too weak to resist.

"8th. It is expressly agreed and understood that no attempt shall be made by any of the parties to this agreement to enforce the forfeiture under the said last codicil, for litigating before said referees any of the matters referred to them, by any under this agreement, or for any thing that has occurred up to this time.

"9th. Should any further points of difference arise which the counsel on either [**5]  side signing this agreement, should deem to have been omitted in the aforegoing stipulations, the same are to be decided either by the arbitrators now agreed on in this agreement, or by a common friend or friends, as provided for in the will of Charles Carroll of Carrollton.

"Reverdy Johnson, John V. L. McMahon, Charles Carroll, Charles C. Harper, for himself and for Emily L. Harper, and Robert G. Harper.

"Richard H. Bayard, J. Lee, Frederick A. Schley, John Nelson, U. S. Heath, John Glenn, Richard Caton, for himself and Louisa C., Marchioness of Carmarthen.

"Mary Caton, John McTavish, for himself and as attorney for Mary Anne, Marchioness Wellesley, and Elizabeth Caton, Emily McTavish."

The cause was accordingly entered as referred, under the general issue plea, by the defendant.

"The arbitrators, at September term, in the year 1834, returned their award in writing, of and upon the premises aforesaid, under their hands and seals, in the words and of the tenor following, to wit:

"We, the undersigned arbitrators, appointed by the sixth article of an instrument of writing, bearing date the twelfth day of February, in the year of our Lord one thousand eight [**6]  hundred and thirty-four, and executed by Reverdy Johnson, John V. L. McMahon, Charles Carroll, Charles C. Harper, for himself and for Emily L. Harper and Robert G. Harper, Richard H. Bayard, J. Lee, Frederick A. Schley, John Nelson, U. S. Heath, John Glenn, Richard Caton, John McTavish, for himself and as attorney for Mary Anne, Marchioness Wellesley, and Elizabeth Caton, and Emily McTavish; and which said article is as follows:

"6th. The award of Richard Caton to be opened, and the subject matter of it to be referred to referees, to be chosen in the manner herein after specified. The referees to act under the same instructions and authority as the former referees, who made said award were instructed and authorized to do, and as if Mr. Carroll's letters to the former referees had been directed to them. A case to be docketed against the executrix, and this reference to be made under a rule of court, to which the terms in this stipulation are to apply. The award, as it now stands, shall not be impugned or impaired by this assent to open it, should this reference by any means be frustrated, but it is to remain in full force and operation as it now does or ever did--the referees are [**7]  to make their award during the present year, should they not, then this reference to be void. The referees are to be paid equally by the parties for their services. The counsel on each side are to name two persons, from whom each is to select one--the two thus selected to be the referees, and if they differ, then they to choose a third person, and the award of the majority to be final. Mrs. McTavish is not to pay Mr. Caton's award, nor to do any thing to give validity to said award, until a new award is made, or Mr. Caton recovers his claim by a suit at law, in the event of no award taking place."

"And also appointed by virtue of a rule of reference from Baltimore county court, dated the seventeenth day of April, in the year one thousand eight hundred and thirty-four, in a case depending in said court, in which Richard Caton is plaintiff, and Emily McTavish, executrix of Charles Carroll of Carrollton, is defendant, and docketed against said executrix in pursuance of said article, having first given due notice to all the parties, by their counsel, of the places and times of our meeting to hear and decide on the matters so referred to us, and having fully heard the evidence and [**8]  representations of said parties touching said matters so referred to us by said sixth article, and said rule of reference, and having also fully heard and considered the arguments of the counsel of the respective parties to said reference, do award and determine under and in virtue of said sixth article and rule of reference, as follows, to wit:

"First. We do award and determine that in the said suit in Baltimore county court, between said Richard Caton and said Emily McTavish, as executrix of Charles Carroll of Carrollton, in which said rule of reference was made, there is nothing due to said Caton by the defendant, as executrix aforesaid, and that in said suit judgment be rendered for the defendant, with cost of suit.

"Second. In compliance with the instructions and authority heretofore given by the said Charles Carroll of Carrollton, deceased, to the former referees, Alexander Fridge, Samuel Sterret, and Henry Thompson, who made the award referred to in the aforesaid sixth article of the said agreement of reference of the twelfth day of February, one thousand eight hundred and thirty-four, and which said instructions and authority are conferred upon us by said sixth article:  [**9]  

"We do further award and determine that to equalize the annuity accounts agreeably to said instructions and authority, the sum of twenty-eight thousand two hundred and seventy-five dollars and thirty-seven cents and one-half of a cent, ($ 28,275.37 1/2) shall be, and is hereby added to the balance of Mrs. Mary Caton's general account, as said account stands stated in said Charles Carroll of Carrollton's book of accounts, marked F. A. as of the twentieth day of November, one thousand eight hundred and twenty-nine, so that the balance of said general account on that day, may be eighty-two thousand six hundred and eight dollars and twenty-nine cents, ($ 82,608.29,) instead of standing as it now does, fifty-four thousand and three hundred and thirty-two dollars and ninety-two cents, ($ 54,332.92.)

"Third. In pursuance of the agreement of reference as aforesaid, and of the said instructions and authority of said Charles Carroll of Carrollton referred to in the next preceding section of this award, and which as aforesaid are conferred upon us, we do award and determine that the said balance of Mrs. Mary Caton's general account in said book of accounts of said Charles Carroll of [**10]  Carrollton, marked F. A. folio 31, of fifty-four thousand three hundred and thirty-two dollars and ninety-two cents, ($ 54,332.92,) as the same stands charged on the twentieth of November, eighteen hundred and twenty-nine, and referred to in the will of said Charles Carroll of Carrollton, deceased, be and the same is hereby awarded to be the correct and proper balance on that day, of said account, except so far as the same is altered by the additions and directions awarded by us to be made to the same by the next preceding section of this award.

"And we do further award and determine that said general account of Mrs. Mary Caton, in said book F. A. in folio 31, is to stand and be debited with the sum of nine thousand six hundred and sixty-six dollars and sixty-two cents, ($ 9,666.62,) for advances made by said Charles Carroll of Carrollton on said general account of said Mary Caton, from and after the said twentieth of November, eighteen hundred and twenty-nine, which said sum of nine thousand six hundred and sixty-six dollars sixty-two cents, ($ 9,666.62,) includes the sum of four thousand six hundred and sixty-six dollars and sixty-two cents, ($ 4,666.62,) with which said account [**11]  in said book F. A. folio 31, already stands charged from and after the said twentieth of November, eighteen hundred and twenty-nine.

"And we do further award and determine that said general account of said Mary Caton, in said book F. A. folio 31, is not to be credited with the sum of three thousand dollars, with which it there stands credited as on the twentieth of November, eighteen hundred and thirty, and that it is not to be credited with any other sum from and after the twentieth of November, eighteen hundred and twenty-nine, either by virtue of the memorandum signed by said Charles Carroll of Carrollton, and dated the fifteenth day of February, eighteen hundred and thirty, at the foot of the said general account of said Mrs. Mary Caton, in said book F. A. folio 31, or by virtue of any other authority whatsoever. In testimony whereof, we have hereunto set our hands and affixed our seals this 30th day of October, in the year 1834.

STEVENSON ARCHER, [Seal.]

R. B. MAGRUDER, [Seal.]

"Thereupon the said Richard Caton filed the following exceptions to the award aforesaid, and to any judgment being entered thereupon, because:

"1st. The arbitrators have exceeded [**12]  their authority and have awarded upon subjects never referred, nor intended to be referred to them, viz. That that they have awarded and determined about Mrs. Mary Caton's accounts, and with what sum she should be charged, when such subjects were never referred in them.

"2d. That the arbitrators have acted under powers never conferred upon them, but have mistaken their authority in supposing they were referred under any other appointment than the rule of court in this case.

"3d. That the reference in this cause was not a general reference of all matters in dispute in this suit between the estate of Charles Carroll of Carollton and Richard Caton, but merely a reference of a claim of Richard Caton alone, as specified in a letter of Charles Carroll of Carrollton to Samuel Sterret, Alexander Fridge and Henry Thompson, dated    , and that in this the arbitrators have mistaken their power and authority.

"4th. That the arbitrators erred in supposing that any notice was given to any other person of the time and place of holding their sessions or meetings, than to the attorneys of Richard Caton and Richard Caton himself, no such notice having been given, and the award, so [**13]  far as it affects other interest than those of Richard Caton being of course ex parte, and without notice to the parties interested."

At January term, 1835, the following disclaimer was filed in the cause:

"The undersigned, before any judgment is entered in the case of Richard Caton vs. Emily McTavish, executrix of Charles Carroll of Carrollton, deceased, state and file this statement. That in the trial of this case before the arbitrators, they were but the counsel of Richard Caton, and of no other person or persons whomsoever, and they assert that they never appeared or acted as counsel, agents, or attorneys, for any person or persons whose interests were attempted to be affected by such award, except as counsel, agents, or attorneys of Richard Caton.

R. B. TANEY,

JOHN GLENN,

JNO. NELSON,

U. S. HEATH."

The county court (PURVIANCE, J.) overruled the exceptions, and rendered judgment for the defendant.

The plaintiff appealed.

"Supplement to the Record, added by consent of Counsel.

"BALTIMORE, August 13th, 1832.

"Dear Sir,--Circumstances have arisen, which induce me to ask you to have a new reference on the subject of Mrs. Caton's [**14]  and Mrs. Harper's accounts in relation 'to the annual allowance given to each of them, for house-keeping, from the date of their respective marriages, so that they may be placed on an equal footing; and in relation to the compound interest on $ 2,500, a sum annually paid to Mrs. Harper, from the day of her marriage, which was not paid to Mrs. Caton for fourteen years after the day of her marriage.' When you assented to place Mrs. Caton on the same footing with Mrs. Harper, you thought it necessary to equalize Mrs. Caton's account by allowing compound interest for the period of 14 years she was deprived of her annuity of $ 2,500. Had she received it as Mrs. Harper did, she could at least have realized an annual interest, and have had thereby compound interest. The same operation went on in your hands, and therefore you thought it right to credit Mrs. Caton for the interest on that principle, and it was accordingly done in, I believe, the year 1816 or 1817, in your hand-writing--(it was in 1812.) This entry was reversed by Mr. McTavish in 1824, when I was in England, when under your direction, he undertook 'to EQUALIZE your accounts with your three children, for their respective allowances [**15]  for the house-keeping.' Reversing this allowance for interest on the annual allowance of $ 2,500, is not the only error made to Mrs. Caton's prejudice by Mr. McTavish, while the other branches of your family think she has had more than her proportion.

"The interest on the annuity of $ 2,500, unpaid to Mrs. Caton for 14 years, which was credited by you, and then deducted by Mr. McTavish, has been again credited by you under the award of Mr. Colt and Mr. Woodville. But, if you accede to my proposal, the arbitrators may reverse this entry if they do not discover full and deliberate evidence of your intention in making this credit--or, if they believe it is doing injustice to Mrs. Harper, or your son's family. Whatever may be their decision, I shall abide by it. The object is, to give equal and just measure to each, in the disposal of your bounty. If any thing be due, to make the accounts equal, I do not ask to receive the money now, but to be credited in your books for the amount, and to pay any demands which your estate may have against me for debt, or for any security or responsibility entered into by you, on my account.

"I suggest to you the names of Messrs. Alexander Fridge,  [**16]  Samuel Sterett, and Henry Thompson--persons of great reputation for a knowledge of accounts, character, and standing in society, to make the investigation, and the award I apply to you for.

"Should you agree to the reference, I will thank you to subjoin to my letter, a note addressed to those gentlemen, requesting them to compare the accounts of Mrs. Caton and Mrs. Harper, 'for annuity allowed for house-keeping,' and to equalize them on the same principle, as to time and amount, from their respective marriages: and I believe it would be agreeable to Mr. Colt and Mr. Woodville, to be called in, to explain the investigations which they made in your books, on which they founded the award returned by them.

"I am, very truly, dear sir, your affectionate and humble serv't,     RD. CATON.

"P. S. You will please to direct the referees to allow interest on sums paid to Mrs. Harper or to Mrs. Caton, and not paid to the other--and to correct charges of interest made to the injury of either; and to equalize in equity and justice, their 'annuity' and 'general accounts,' according to amount paid, and to time.     R. CATON.

"To the HON. CH. CARROLL OF CARROLLTON, Doughoragen [**17]  Manor."

"DOUHORAGEN MANOR, August 16, 1832.

"I assent to the wishes of Mr. Richard Caton, expressed in the foregoing letter, and request Mr. Alexander Fridge, Mr. S. Sterett, and Mr. Hy. Thompson, will do me the favour to look over the annuity accounts of my daughters, Mrs. Caton and Mrs. Harper, and to have them equalized on the same principle, as to time and amount, from the dates of their marriages respectively. With respect to the compound interest, I thought it right, in justice, and so I entered it on my books. There will be found, among my papers, my calculation on this subject, which will shew that the credit was given with due deliberation: but if it shall appear to the referees not founded in justice, or that any error has been made by me, Mr. Caton expresses a wish that the entry may be made conformably to justice and equity, or as to time and amount, as they may award.

"Given under my hand,     CH. CARROLL of C.

"Witness--CATH. HARPER.'

"The postscript of the foregoing letter of Mr. Richard Caton, I desire may be considered a part of the subject matter referred.     C. C. of C.

"Witness--CATH. HARPER.     August 30, 1832." 

DISPOSITION:
JUDGMENT [**18]  AFFIRMED.  

HEADNOTES:

When the declaration in a case, referred to arbitration, presents a case cognizable in a court of law, it is not essential to support the jurisdiction of the court, that the matters in controversy submitted to, and decided by the arbitrators, should be properly subjects of common law jurisdiction.

If, upon a reference by rule of court, the award be for the payment of money, and judgment is entered upon it, an execution to enforce payment issues as upon a judgment or verdict. If the award is for any other matter, as for a conveyance, &c. it may be enforced by attachment.

The principle is well settled, that where the matters awarded are independent, and distinct from each other, those which are within the submission are good, and not vitiated, or contaminated, by those which are without it.

An award may be bad in part, and good in part, if the void part of the award is not of matter necessary to be decided, so as to render it final according to the terms of the submission, or be not the consideration or recompense of the thing awarded to be done on the other side.

The doctrine of the present day is, to treat awards with more liberality than formerly, and every reasonable intendment will be made for their support. It will be intended, that all matters submitted, have been decided by the arbitrator, unless the contrary appears; and it will be also intended, that he has not exceeded his authority.  

COUNSEL:
C. F. MAYER, for the appellant.

THIS is an action by the appellant against the appellee, upon a declaration with the common money counts. The case was instituted by consent, and an agreement for refering it was entered into, submitting it to certain persons "according to the agreement" (to use the words of reference) "in Carroll vs. MacTavish and Caton." This latter agreement was one which occurred between the devisees of Charles Carroll, and it is the 6th article of it to which the terms of reference in the present cause refer, and which to limit and qualify those terms, they make a part of that reference. The 6th article declares that "the award of Richard Caton is to be opened," and the "subject matter" of it referred to referees whom the stipulation requires "to act under the same instructions and authority as the former referees who made said award [of R. Caton] were instructed and authorized to do, and as if Mr. Carroll's letters to the former referees had been directed to them;" and the article proceeds to state "a case to be docketed against the executrix [of Mr. Carroll,] and this reference to be under a rule of court to which the terms of this stipulation [**19]  are to apply." The letters meant in this article, and which define the object of reference in this cause, are appended to the record, and by agreement made part of it. They are: a letter from Mr. Caton to Mr. Carroll, dated 13th August, 1832, and one from Mr. Carroll (adopting Mr. Caton's) addressed to Messrs. Sterett, Thompson and Fridge, and together amount to a direction to these gentlemen to examine the "annuity accounts" and the "general accounts" of Mr. Carroll's daughters, Mrs. Caton and Mrs. Harper, respectively, and to "equalize" them on the same "principle as to time and amount from the dates of their marriages respectively." The submission admits Mr. Carroll's having credited compound interest to Mrs. Caton, and expresses Mr. Carroll's opinion that it was a just allowance, but submits that point to the judgment of these referees.

The referees in the present case, Messrs. Archer and Magruder, awarded that in this suit "there is nothing due to Caton by the defendant as executrix of Charles Carroll, and that judgment be rendered for the defendant with costs of suit;" and further, that to "equalize the annuity accounts agreeably to said instructions and authority, the sum [**20]  of $ 28,275 37, be added to the balance of Mrs. Caton's general account as that account stands stated in said Charles Carroll's book of accounts marked F. A. as of the 20th November, 1829, so that the balance of said general account may on that day be eighty-two thousand six hundred and eight dollars and twenty-nine cents, instead of standing as it now does, fifty-four thousand three hundred and thirty-two dollars and ninety-two cents;" and the award then goes on to charge Mrs. Caton's "general account" with a further sum of $ 9,666.62. To this award exceptions were filed which the court overruled, and it rendered judgment on the award, and conformably to it. The exceptions were:

1st. That the arbitrators had exceeded their authority in awarding on Mrs. Caton's accounts, and on the sum with which she should be charged.

2d. That they acted as under powers not conferred on them, and erred in supposing that they were acting under any other appointment than the rule of court in this case.

3d. That the reference in the case was not a general reference of all matters in dispute in this suit between Mr. Carroll's estate and Richard Caton, but merely a reference of a claim of [**21]  Richard Caton alone, as specified in the letter to Messrs. Sterett, Thompson and Fridge. The

4th Exception related to the omission to give notice to others than R. Caton of the meetings of the arbitrators, and was meant to preclude any implication of other parties by the award of the arbitrators.

The appellant will contend that for the reasons embraced in the exceptions the judgment of the County court was erroneous in adopting and affirming the award; and he will urge,

1st. That the court erred in this, by affirming the award, taking any cognizance of the case; the subject of adjudication, as disclosed by the proceedings, and the terms of reference being exclusively proper for a court of equity.

2d. That the terms of reference limited the authority of the referees to the simple duty of ascertaining, on the facts and according to their views of equity, a single item of account, or at furthest two items; and did not authorize an inquiry into Mr. Caton's accounts generally with Mr. Carroll, nor to adjudge indebtedness on one or the other side.

3d. That it was the duty of the referees to report the annuity accounts and the general accounts in detail, as adjusted [**22]  by them.

4th. That the referees have erred, and their award is defective in not determining specifically and distinctively on both the annuity accounts and the general accounts, and in passing only on the general account of Mrs. Caton.

The referees here were to be confined to the same subjects submitted to the first and second set of arbitrators mentioned in the record. The letters qualify the functions of the arbitrators. Under the 6th article, Messrs. Archer and Magruder were substituted for Fridge, Thompson and Sterett. The counsel cited 1 Stor. Eq. Sec. 532, 535, 539, 543, 544, 550. Ketland, qui tam vs. The Cassius, 2 Dallas, 368. Owen vs. Hurd, 2 Term Rep. 644. Fitzpatrick vs. Pickering, 2 Wilson, 68. Martin vs. Commonwealth, et al, 1 Mass. Rep. 387. Dorsey vs. State use Dorsey, 3 H. and McHy. 389. Bowie vs. State use Hughes, 3 H. and McHy. 408. Harris vs. Dorsey, 1 H. and J. 416. West vs. Stigar, 1 H. and McHy. 247. West vs. Stigar, 4 H. and McHy. 490.

MEREDITH, for the appellee:

The record as it came from the County court, presents four exceptions against the award. That court passed upon them all, and entered judgment against the plaintiff below. As to all [**23]  these exceptions, the principles involved in them are settled by a decree of the court. They were all decided upon an appeal from the Orphans court, affecting Mr. Carroll's estate. Mrs. Mac Tavish then claimed under these same objections, and here on full argument the decree of the Orphans court was reversed. Caton, it is true, is not bound by that decree, but the same questions are now again discussed here, though the funds of the estate have been distributed under them.

Every reasonable intendment will be made by the courts in favour of awards. 11 Law Lib. 53. Cromwell, et al vs. Owings, 6 H. and J. 10. Archer vs. Williamson, 2 Har. and Gill, 67. New exceptions are now, however, presented against the judgment. Are they valid? The law of Maryland as to awards, is regulated by the acts of 1778, ch. 21, sec. 8, and 1785, ch. 80, sec. 11. The award is to remain four days in court. No judgment can be entered until notice to the adverse party. There are two modes of dealing with awards. Extrinsic objections are made available, upon motions to set aside, sustained by affidavit. Intrinsic objections, apparent on the face, are taken by exception. If no motion, after the time has passed,  [**24]  judgment goes as of course. If exceptions are filed, additional exceptions may be made at hearing. But after judgment rendered, the court will listen to no exceptions. The subject is beyond their reach. An opposite practice here would expose parties to surprise, and convert the court into any thing but an appellate court. The act of 1825 is conclusive on this point. Questions raised here must appear affirmatively to have been decided below. Davis vs. Leab, 2 Gill and John. 306. Hyatt vs. Boyle, 5 Gill and John. 110. Grahame, et al vs. Harris, et al, 5 Gill and John. 491. Arbitrators need only state results, and not the process of their decision.

On the question of jurisdiction, he cited Soilleux vs. Herbst, 2 Boss. and Pull. 444. A court of common law will deal with matters of ecclesiastical jurisdiction, where submitted and awarded upon.

R. JOHNSON, on the same side.

This very paper called an award, was in the prior cause.

Is the objection to jurisdiction well founded? An award may be enforced at law. If Carroll's books showed him a debtor to Caton, the latter could recover at law. A court of law has jurisdiction over an ascertained balance. Assumpsit may be maintained [**25]  upon a valid award. So if a suit at law is adopted by mistake, upon a reference the award in such case may be the foundation of a judgment. In such a case, in a court of general jurisdiction, the presumption is in favour of jurisdiction. Prima facie the County court had jurisdiction in this case. But there is nothing in the objection. Matters of an equitable nature may be referred. Schriver vs. Devilbiss, 9 Gill and John. The award gives jurisdiction, provided it does not transcend the reference. That question has reference to the award. The judgment follows the award.

This court cannot get behind the award. They have not Carroll's books. How do you ascertain that Caton could not recover at law. The counsel regard it as a case of gift. The terms of reference concede it to be a legal claim, and which he could only enforce at law.

But suppose we err in these views. It is at any rate a question of debits and credits. The action is brought. That such matters may be referred, Dryden vs. Robinson, 2 Sim. and Stuart, 529. In 1 Con. C. Rep. 572, an award made after a bill filed may be pleaded to a bill.

Then have the arbitrators transcended their authority. If so, the award [**26]  is bad for that excess in whole or in part according to the fact.

What is the authority here? It will be found in the 6th article of reference, under the agreement of 12th February, 1834. The first award of Caton was to be opened, and the new arbitrators were authorized to decide upon the subject matter of that award. The letters of Mr. Carroll were to be submitted to them, and the demand to be again examined. A suit was docketed, and a reference made under rule of court to prevent a revocation by Caton. The executrix was not to pay until Caton had procured a judgment. The arbitrators are selected. The award is made. No extrinsic objections are set up. Exceptions to the award are merely taken. In what particular then can it appear that the arbitrators have exceeded their authority. It decides that Caton has no claim. His right was the subject submitted. The excess of authority nowhere appears. Karthaus vs. Ferrer, et al, 1 Peter S. C. R. 222. The statement of facts shows the nature of the claim. It required an examination of various accounts. Errors of judgment are not to be involved with defects of power. The former are not impeachable. The arbitrators had power to reduce his [**27]  claim, and their errors you cannot touch. They were not bound to give details of accounts. A general reference refers law and fact exclusively to the arbitrators. Then why detail accounts? Their acts are presumed to be correctly done. Mere error will not reverse them. It must be corruption, fraud or malpractice. They were not bound to discriminate between the general account and the annuity account. They decide on both. The arbitrators declare a final judgment, and this is co-extensive with their whole power.

J. R. COOKE, in reply:

The great question is, whether the court below had jurisdiction? If it had no jurisdiction, this court will ex mero moter reverse their judgment. Does the mere institution of the suit give jurisdiction? The courts of England until the time of Charles 2d, entertained no jurisdiction over awards. Then by agreement inter partes in court, by direction of the court causes were referred. Convenience extended this jurisdiction. The court acted by rules, then produced another step. The courts still adhere to the idea, that a reference was not a suit depending, and exercised no jurisdiction confirming awards. They required verdicts or a confession of judgment,  [**28]  and retained the power to substitute a non-suit for the verdict. They enforced awards by a rule granted on evidence as for not carrying out an agreement. The courts by degrees permitted rules of court referring all matters in dispute to arbitrators, and so departed from their strict course as originally pursued.

By statute 9 and 10 Will. a new step was taken. An agreement or rule was made without suit to refer, award and decide; and then the court heard the parties: and here the matter stopped in England. The statute of Will. was never in force here.

In 1778 the legislature made an important alteration in the law of awards. Courts were here empowered to render judgments on awards. Their jurisdiction is directed with reference to suits depending before them. It does not take away any common law power. The act of 1778 is cumulative. The common law courts had power to enforce awards by attachment: in one class of cases they enforced by judgments. Two classes of cases of which the courts of Maryland have jurisdiction. All matters pending may be referred. Then is there any case where the common law courts may refer all agreements--may refer matters over which they can exercise [**29]  no control, nor pass judgment. No man's interest shall be adjudged until he is heard. Parties not before a court, nor heard, shall not be prejudiced. An award made colorably cannot be enforced. Such an action would be brought in error. This award was the settlement of the interest of at least four persons, not properly before the court. The counsel here referred to the statement of facts. In 1832 the accounts were considered complicated. All parties considered themselves aggrieved. The general account was the regulator of the dividend at Mr. Carroll's death: and as the residuum of the estate went into this general account, it affected all parties under his will. Hence the general account should be correctly kept. Among other facts referred to out of the record is the magnitude of the claim, but the court is not now to decide on Caton's claim. The principal question is whether the court below had jurisdiction. The authority of the court below can be revoked here, for we were deprived of the talent of two of the judges on the question. It was decided by a single associate.

What class of cases does the act of 1778 include. It embraces power to enter judgment on an award simply to [**30]  the extent of the declaration. This remedy is cumulative. It is competent to permit parties litigant to refer all matters between them to referees out of court. In England it may be enforced by attachment--and here under such an award, the parties may invoke the aid of the act, and the courts, if they find a matter of common law jurisdiction in the award, may enter a judgment according to the award, affecting only the parties before them. The case of The State use of Devilbiss vs. Shriver does not conflict with this idea. The judgment there was right. It found an award upon a common law matter. A money award between A and B.

If the arbitrators had directed equitable matters to be performed, the court would have ordered an attachment, and not quoad hoc have proceeded to render judgment.

But that case is no answer against a cause in which four parties interested are not before the court. The case of Glenn, permanent trustee of Fahnestock vs. Karthaus, is an authority fatal to the appellees. An action at law, as an action of trover, cannot by agreement be treated as an equity cause. An audit of the equities of the parties was refused the function of the law side of this court.  [**31]  The parties were forced to confess judgment, and be content with the mere opinion of the judges upon their rights.

The subjects on which a judgment is founded are well known--a verdict--confession--non-suit. An award made in a cause depending before its common law jurisdiction.

Judgments are reversed for want of jurisdiction.

We want to go back to where Mr. Caton made the first false step. He was then under the joint direction of friends and foes. What was the matter submitted? The general account was in fact a part of the testamentary disposition of Mr. Carroll's estate. It was part and parcel of his will. The sixth article of the agreement refers to this controversy. That article is powerless in itself. It refers to certain letters. These constitute essential parts of the contract. A former award is nullified. It is only to be reversed sub-modo. Persons may refer on their own terms. A submission may overrule legal principles, and proceed arbitrarily and upon assumed notions of equity. Such is the reference of 1834, under the letter of 1832. The interest of many parties are involved in the agreement. The mode of reference is the next step to be considered. A case is [**32]  to be docketed. Then what sort of a case?

The case to which this agreement refers should have been against all the parties interested. That the interest of all might be protected. The suit was not brought on the award. The common law courts could not enforce the award on its several branches. The parties resorted to the wrong court. A bill filed was the proper case to docket. That would have conformed to the agreement. The case docketed was wrong, with reference to its effects and purposes. Then this common law case is extra judicial. It relates to persons and interests not before the court. The sole question is, had the court jurisdiction. We ask for a non-suit. As it now stands it is a conclusive bar, and created by a mode never contemplated.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*211]  STEPHEN, Judge, delivered the opinion of the court.
A dispute existing in this case between the appellant and the legal representatives of the late Charles Carroll of Carrollton, concerning a certain sum of money claimed by the appellant from the appellee, as the executrix of Mr. Carroll, upon an award made [**33]  in favour of the appellant in the life-time of Mr. Carroll, for the purpose of effecting an amicable adjustment of such controversy by arbitration, it was agreed between the parties that a suit should be docketed in Baltimore county court, and the controversy should be referred to arbitrators, who were authorized to act under certain instructions and powers delegated to them, to be found in certain letters of correspondence which passed between Mr. Carroll and 

 [*212]  the appellant in the life-time of Mr. Carroll. By the terms of submission, it was stipulated between the parties that the award which was the foundation of the appellant's claim, should be opened, and the subject matter of it examined by the referees, for the purpose of deciding upon the merits and justice of the appellant's claim, and of awarding what, if any thing, was due to the appellant. The arbitrators in pursuance of the powers vested in them, after an examination of the subject matter submitted to their arbitrament and decision, awarded that in the suit in Baltimore county court, between the appellant and appellee, there was nothing due to the appellant by the appellee, as executrix of [**34]  Mr. Carroll, and that in said suit, judgment be rendered for the defendant with costs of suit. To this award, exceptions were filed by the appellant in the court below, which being overruled, and judgment rendered for the appellee, conformably to the award; the appellant prayed an appeal from the judgment rendered against him by Baltimore county court; which brings under the revision of this court the legality of the decision of the court below. A question of jurisdiction has been raised in this court, which does not appear from the record to have been brought to the notice of the court below. It is that the subject matter in controversy was not properly cognizable by a court of common law, but more appropriately belonged to the cognizance of a court of equity, where all the parties interested might have been brought before the court, and the agreement to refer, made a rule of that court. To this objection to the validity of the judgment of the court below, we cannot accede. If the grounds and elements of the award, upon which the claim of the appellant was founded, were matters of account, more appropriately belonging to a court of equitable jurisdiction, as being more competent [**35]  than a court of law, to administer full and complete justice between all the parties in interest, or who might be ultimately affected by the decision, still we do not think that under the circumstances of this case, such an objection can be available to oust the jurisdiction of the 

 [*213]  court below, or render it incompetent to enter judgment upon the award of the referees in this case.
In England it is a familiar practice to refer to arbitration, not only all matters in controversy in the cause pending between the parties, but all matters in dispute between the parties to the cause, whether involved in the suit, or extraneously existing upon other grounds; and in such case, it is not unusual for the plaintiff to take a verdict by consent for security; and if the award be made in his favour, he may at his election, either enter up judgment on the verdict, and take out execution for the sum awarded, if that does not exceed the sum for which the verdict was taken, or he may proceed by attachment. Kyd on Awards, 314. 5 East. 139. The arbitrator in such a case, has a limited jurisdiction within the amount of the verdict, and cannot exceed it.
In the case now before [**36]  the court, the declaration in the court below upon its face, presented matter properly cognizable in a court of law, and it was not essential to the support of its jurisdiction, that the matters in controversy which were submitted to the arbitrators, should be proper subjects for the cognizance of a court of common law. The legality of such a reference, and the competency of the court to enforce an award, made in pursuance of it, has already been decided by this court, in a cause in which not only the subject matter of the suit below, but all matters in dispute between the parties, embracing matters of equitable cognizance, were submitted to the decision of arbitrators, and their award was enforced by a judgment from which an appeal was taken to this court, and the same was here affirmed.
As heretofore remarked, it appears to be the practice of the English courts, not only to sanction references of the cause pending, but of all matters in dispute between the parties, and to enforce the award, sometimes by verdict, and at other times by attachment for contempt: and since the passage of the statute of William, it has been decided, that an agreement to refer a bill depending [**37]  in chancery may, 

 [*214]  under that statute, be made a rule of a court of law. For this principle, see 14 Vezey 264. In that case there were two bills depending in chancery, and the reference, which was a general one, of all matters in dispute, was made an order of the court of king's bench. Where the award is for the payment of money, no difficulty can arise in the execution of it by a court of common law jurisdiction. The judgment is entered upon the award, and execution issues upon it in the same manner as upon a judgment on verdict, or by confession; if it be of any other matter, as a conveyance or deed to be executed by one of the parties to the other, it may be enforced by attachment, and in such case the award is executed, though not by the same kind of process. The agreement to refer, being made a rule of court, the failure or refusal to perform the award, would be a contempt of court, for which we think the process of attachment might properly issue. Such seems to be the practice in Pennsylvania, where they have a statute in some of its features strikingly analogous to our own. That statute provides that where the plaintiff and defendant consent to a rule of court,  [**38]  for referring the adjustment of their accounts to certain persons mutually chosen by them in open court--the award or report of such referees, being made according to the submission of the parties, and approved by the court, and entered upon the record or roll, shall have the same effect, and be as available in law, as a verdict by twelve men. Our act of 1778, ch. 20, provides for the reference of any cause pending in court, by rule of court, with the consent and agreement of the parties thereto, and authorizes the court to give judgment upon the award of the referees, and to award execution thereon in the same manner as upon verdict, confession, or non-suit, and declares that such judgment shall have the same effect to every intent and purpose, as any judgment upon verdict or confession would have. In both cases the reference is made under a rule of court, and the award is to have the same effect as the verdict of a jury.

 [*215]  In 1 Dallas, 365, President Shippen says, where a report of referees awards money to be paid on one side, and certain other things to be done on the other, if the court cannot enforce both, they will certainly enforce neither. In the present [**39]  case the question will be, whether they can oblige the plaintiff to perform his part of the award. They certainly cannot do it by execution, but if they can do it by attachment, the remedies are mutual, though not by the same kind of process. The report of the referees in that case was then confirmed; and he declares in another part of his opinion, "in all cases of this kind, the court will exercise their equitable powers in such a manner, as not to suffer either party to elude the performance of their part of the award."
Under this view of the case, we think that the objection to the competency and jurisdiction of the court, raised by the counsel for the appellant, has not been sustained. The court below had, we think, ample jurisdiction to enforce the performance of the award of the referees, although it involved the consideration and decision of matters which might properly belong to the cognizance of a court of equity. Causes instituted in a court of equity, are not unfrequently referred to the decision of such a domestic forum, as perfectly competent to decide upon the relative claims of the parties there litigating; and we can perceive no objection to it in the present [**40]  instance. Such a tribunal is absolved from the obligation of technical rules, and perfectly competent to decide upon the merits of the case according to the principles of equity and justice. When their decision is made, and the rights of the parties are fully adjusted, we can perceive nothing improper in the execution of it by a court of common law jurisdiction.
The question of jurisdiction being disposed of, we will briefly advert to the exceptions filed to the award. The first and second of those exceptions, impeach the award upon the ground that the arbitrators have transcended the limits of their authority, in awarding upon subjects not embraced by the submission. It is we think a sufficient answer to these 

 [*216]  exceptions to say, that the validity of this award is not affected by them. It cannot be controverted that the referees were acting strictly within the pale of their powers, in awarding upon the claim of the appellant upon his award, because the subject matter of it, in the express terms of the submission, was referred to their decision; and the principle is well settled, both in England and in this State, that where the matters awarded are independent [**41]  and distinct from each other, those which are within the submission are good, and are not vitiated or contaminated by those which are without it. 6 H. & J. 10. 11 Law Library 71. An award may be bad in part, and good in part, if the void part of the award is not of matter necessary to be decided, so as to render it final according to the terms of the submission, or be not the consideration or recompense of the thing awarded to be done on the other side. These exceptions to the validity of the award, upon the ground of an excess of authority by the arbitrators, in awarding that nothing was due to the appellant in that suit, were, we think, therefore, properly overruled by the court below.
The third exception we also think cannot be supported, but was properly overruled by the court below. Courts of justice in their latest decisions, have manifested a disposition to treat awards with more liberality than formerly. Every thing is to be intended in favour of an award. 11 Law Library, 63. Every fair and reasonable intendment will be made to support them, and such a construction given to them, that they may stand if possible. Ibid, 53. Where it is also said,  [**42]  "it is now quite clear, that the court will intend that all matters have been decided by the arbitrator, unless the contrary appears, and in like manner it will be intended that he has not exceeded his authority." Unless therefore it plainly appears, that there were other matters in controversy in the suit, than the award of the appellant, it will be intended in support of the award of the referees, that they have not exceeded the limits of their authority, in deciding that there was nothing due to the appellant, and it will be 

 [*217]  intended that, in coming to that conclusion, they had not departed from the limits of their power, or the subject matter of the reference, by taking into their consideration any other claim of the appellant, than that founded upon his award. We think further, that the arbitrators were not bound to have stated in detail the grounds upon which they came to the conclusion, that nothing was due to the appellant. It was not their duty to perform the office of auditor or master in chancery, and report facts for the decision of the court; but to state the result of their examination, which according to the express terms of the submission, was to be final.  [**43]  Kyd on Awards, 345; where the distinction is taken between the duty of a master and that of an arbitrator, the latter is instituted judge of the facts without appeal; the former is only a minister to prepare something for the court, which is really the judge; and when by agreement of the parties, the award of the referees is to be final, their power seems to be more of a judicial than a ministerial character. But in coming to this conclusion, we do not mean to decide whether or not the arbitrators in any part of their award have exceeded their authority.
JUDGMENT AFFIRMED.  

15 of 47 DOCUMENTS 

NEGRO HARRIETT vs. EDWARD RIDGELY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 174; 1837 Md. LEXIS 26 

December, 1837, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore city court, petition for freedom.

The petitioner alleged that by the codicil to the last will and testament of Eleanor Dall, deceased, bearing date the 19th day of October, 1829, duly proved and recorded, she devised and directed as follows: "I hereby manumit, enfranchise and set free my negro woman Maria, and her two children, Benjamin and Harriett, the freedom of said children to take effect when they shall have respectively attained the age of twenty-one years." The petitioner further represented that Harriett, manumitted to be free as aforesaid, is now in jail, and claimed by Edward Ridgely, executor of the last will and testament of the said Eleanor Dall, as his slave for life. The petition then suggested that the said Ridgely intended to remove the said negro Harriett from the state of Maryland--prayer for a subpoena, and that he give security not to remove said girl, now about 17 years of age, entitled to freedom at the age of 21 years; and that he shew cause why he should not give security not to remove the said Harriett out of the state.

The answer of Edward Ridgely alleged that the said negro Harriett, never was the property or in the possession [**2]  of Mrs. Dall, the testatrix; but at the time of her death, was the property of J. C. Gittings; that the said Harriett was born the slave of James Sterrett, and was never out of his possession during the life of Mrs. Dall, but that he had conveyed her to J. C. Gittings, in trust, for the wife of the said J. Sterrett; that it is true that after the date of the said conveyance, J. Sterrett mortgaged the said negro Harriett to Mrs. Dall, but this respondent submits that that mortgage conveyed no title to Mrs. Dall; all of which is respectfully submitted, and that the said negro Harriett is not a free woman, as in the said petition above is alleged, and of this he puts himself upon the country, &c.

At the trial of this cause the petitioner gave in evidence the certificate of the register of wills of Baltimore county, dated 1st March, 1834, under the seal of the Orphans' court of Baltimore county, that it had been proved by such testimony as was satisfactory to him, that the bearer, Negro Maria, was the identical person mentioned in Mrs. Dall's will.

And also proved a mortgage from James Sterett, dated 24th April, 1823, to Eleanor Dall, for the said negro with others, conditioned [**3]  to pay a sum of money on or before the 1st January, 1826, which mortgage was duly acknowledged and recorded.

The defendant then proved that on the 29th February, 1820, the said James Sterett, in consideration of a relinquishment of dower by his wife, Maria, conveyed the said negro with others to a certain James C. Gittings, for the sole and separate use of his wife, Maria, which was also duly acknowledged and recorded; and that on the 24th February, 1822, the said James Sterett conveyed all his personal property to Charles Sterett Ridgely for the separate use of his wife, Maria Sterett, which was also duly acknowledged and recorded.

The defendant then produced Eleanor Ridgely, who being duly sworn, gave the following testimony: "I am the niece of Mrs. Dall, was frequently with her at her house in town; never knew Harriett, the petitioner, until the year 1830, after my aunt's death; she was never, to my knowledge, in my aunt's possession. I have always heard that Harriett lived with her grandmother in the country, who was Mr. Sterett's slave, but permitted by him to live with her son who was a free man. Shortly after my aunt's death, Mrs. Sterett came to town to my brother's [**4]  house, and said to me that she wanted to see about Harriett, as she was her property. I communicated this claim to my brother very recently. Maria, the mother of this girl, the petitioner, lived in Mrs. Dall's family as her slave, and survived her mistress. Maria, the mother, after Mrs. Sterett made her claim, said she did not want her to have her child, as her mother had brought her up and found her in every thing. Mr. Sterett had never done any thing for them. The petitioner was brought from the country to town to be appraised in Mrs. Dall's estate in July, 1830." It was also agreed that Edward Ridgely was the executor of Mrs. Dall, that he had the petitioner appraised as part of her estate. That the petitioner was never in the possession of Mrs. Dall, but lived until Mr. Ridgely took possession of her at the time of the appraisement with her grandmother, who was a slave of Mr. Sterett's, but lived with her son, a free man. It was also proved on the trial of this cause, that the said Edward Ridgely on 23d June, 1836, committed the said negro, Harriet, to the jail of Baltimore county as his slave; and that whatever interest, if any, Mrs. Dall had in said negro, vests in the said Edward,  [**5]  as residuary legatee under her last will and testament. It was further proved at the trial, that at the time of filing of the petition in this cause, the said Edward Ridgely intended to sell the said negro girl as a slave for life, out of the state of Maryland, and it is admitted that this intention on his part still exists.

The city court (Brice, Ch. J. Nesbit and Worthington, J's) thereupon adjudged the petitioner to be a slave, when she appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Upon a petition filed by a slave, stating her right to freedom at a future time, and asking in the meantime, that the party in possession might be compelled to give security not to remove her from the state, accompanied with a suggestion that he was about to do so; it was held that the court had no power to interfere, and that upon demurrer or suggestion the petition would be dismissed.

Upon such a petition, the question of a petitioner's right to freedom is not presented; although the defendant in his answer tenders, and the petitioner joins issue upon that right.

An executor who has returned a slave in his inventory of the estate of his testator, is not therefore estopped from shewing, in resisting the slave's right to freedom, under the will of his testator, that he was the property of another.

Such inventory is not conclusive upon the executor, or any one else; upon proof of error, he may get credit in the Orphans' court, or when called to account, by the creditors, or distributees of his testator.

When a petition is filed for freedom, the question to be tried, is the petitioner's right thereto; and not the right of the defendant to hold him in slavery. 

COUNSEL:
WALSH, for the appellant, contended, for the reversal of the judgment on the following grounds:

1. That Mrs. Dall was at the time of the execution of her will, competent to confer freedom upon Negro Harriet, she having at the time a title to her: because there is no proof in the cause of the acceptance of the trusts by the parties in the two deeds relied upon by the defendant, and even if said trusts were accepted, the devise by Mrs. Dall to the defendant, connected with the fact of Harriet being appraised as the property of Mrs. Dall, and taken in possession by the defendant, operated as a foreclosure of her mortgage.

2. That the defendant having accepted the devises contained in the [**6]  will is not competent to set up any title in opposition to the will; and he would have been bound in the event of the trustees making any demand, to plead limitations to protect the freedom of the negro. The proof shows that such a plea could have been maintained.

3. That the defendant by procuring the supposed title of Mrs. Sterett or her trustees, violated his duty as executor of said will, and omitted entirely the requisites of the act of 1817, ch. 112.

4. That the proof in the cause shews that he claims the girl as a slave for life belonging to himself, and had at the time of the filing of this petition the intention to sell her out of the state, and there is no proof of any bill of sale in compliance with the provisions of the act of 1817.

5. That the sale to Ridgely was so far as he is concerned, fraudulent and void, being in fact the sale of a negro for a term of years without the requisite demanded by said act of 1817. Another deed of all his personal property to Charles Sterett Ridgely, which is also for a valuable consideration in trust for the separate use of the said Maria Sterett. After the execution of both these deeds, James Sterett on the 20th April,  [**7]  1823, by deed of mortgage, mortgaged Negro Harriet to Eleanor Dall, to secure payment of a certain sum of money on or before the 1st of January, 1826, with a clause in the mortgage deed under which the mortgagor was to retain possession of the property until default should be made, in the payment of the sum of money on the 1st January, 1826.

Eleanor Dall never at any time took possession of Harriet, who continued to live with her grandmother, who was a slave to Mr. Sterett, but lived with her son, a free man, until after the death of Mrs. Dall. The court therefore erred in their judgment in directing the negro to be restored to the defendant, because the judgment should have been either in favour of the claim of the petitioner to freedom, or that the said negro should be sold for the benefit of the Mayor and City Council of Baltimore.

6. The deed to James Gittings vested no title in him, not being acknowledged before an officer having authority to take the acknowledgment, at least the acknowledgment on its face does not state the official character of the officer before whom it was made. He was not described as judge or justice. He cited: Allender vs. Riston, 2 Gill and John.  [**8]  98, Seimer vs. Seimer and wife, Ib. 105. 1817, ch. 112, sec. 4 and 5. Coale vs. Harrington, 7 Har. and John. 154.

H. EVANS, contended on behalf of the appellee.

1. That Harriet did not belong to Mrs. Dall.

2. That Mrs. Dall had no right to manumit Harriet.

3. That Harriet is not now free.

4. That under the act of assembly under which the appellant filed her petition, 1817, ch. 112, sec. 5, no appeal lies to this court; that is, that this court has no jurisdiction of this case in any shape, but all objections as to the mode of bringing the matter before them, if in any mode it can be brought up are expressly waived. He cited: 1715, ch. 44, sec. 2. 1796, ch. 67, sec. 13. Ford vs. Philpot, 5 Har. and John. 315. 1812, ch. 117.  

JUDGES:
This cause was argued before ARCHER, DORSEY, and SPENCE, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*179]  DORSEY, Judge, delivered the opinion of the court.
The proceedings in this case have been most irregularly conducted, and under any modification which has been given to them, it is difficult to conceive upon what grounds a successful result to the petitioner's application could have been anticipated. The petition upon its face presents no such [**9]  case as would have justified the interference of a court of justice, and either upon demurrer or suggestion to the court, it ought to have been dismissed. None of the provisions of the act of 1817, ch. 112, which have been relied on, can be invoked to the support of such a petition. Assuming the truth of all its statements, and the absence of all the other proof to be found in the record, and there is no law in this state which in such a case would warrant an interference with the rights of the slaveholder in executing the designs imputed to him by the petition.
As if foreseeing the utter inability of sustaining this petition under the act of 1817, on which it was predicated, the petitioner's counsel promptly availed themselves of an opportunity afforded by the appellee, and join issue upon the petitioner's 

 [*180]  right to freedom--thus abandoning all the grounds assumed by the petition, and asserting a right wholly inconsistent with its allegations. The judgment of the court could not have been otherwise than against her, as conceding her to have been the absolute property of Mrs. Dall, by the instrument of her emancipation, she was a slave for three years yet to come. But [**10]  supposing that obstacle to be removed, the decision of the court must have been the same. By the proof in the cause the petitioner was not the slave of Mrs. Dall, and therefore derived no title to freedom under her will. But it is insisted that the appellee being the executor of Mrs. Dall, and having returned the petitioner as her slave in the inventory of her effects, is estopped from shewing that the appellant was the slave of another. There is no such estoppel in the case. The executor is not concluded by the inventory, nor is it conclusive upon any body else--he may at any time upon proof of the error obtain a credit in his settlements with the Orphans' court for the appraisement of the petitioner, or he may obtain the same allowance when called on to account either by the creditors or distributees of his testatrix. The privilege of establishing the same fact cannot be denied him in the present proceeding.
It might be inferred from the argument in behalf of the appellant, that the court below were called on to decide upon the rights of the appellee to hold the petitioner in slavery, and not the title of the petitioner to freedom. Such is not the issue. The question is,  [**11]  is the petitioner free? No matter how destitute of right may be the claim of him who now seeks to detain her in bondage, if found to be the slave of any body, the judgment of the court must be against her.
JUDGMENT AFFIRMED.  

16 of 47 DOCUMENTS 

PIERSON BALDWIN AND OTHERS vs. MARY NEALE AND WILLIAM RIGDEWAY, Adm'rs of JAMES NEALE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 274; 1838 Md. LEXIS 26 

December, 1838, Decided 

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

On the 21st September 1833, the appellants obtained a warrant for an attachment from a justice of the peace, directed to the clerk of Baltimore County Court. The affidavit on which the warrant was granted, was as follows:

State of Maryland, Baltimore city, to wit:

Be it remembered, that on the 21st day of September 1833, before me the subscriber, a justice of the peace of the State of Maryland, in and for the said city, personally appeared Pierson Baldwin, a citizen of the State of Maryland, and made oath on the Holy Evangely of Almighty God, that William Dana and Benjamin Carman are justly and bona fide indebted unto him the said Pierson Baldwin, Peter Levering and Thomas W. Levering, also citizens of the United States, in the sum of $ 5,212.10, over and above all discounts; and at the same time the said Pierson Baldwin produced to me the account on and by which the said William Dana and Benjamin Carman are so indebted, which is hereto annexed, and the said Pierson Baldwin did also make oath that he is credibly informed and verily believes, that the said Benjamin Carman and William Dana, are not, nor is either of them a citizen of [**2]  the State of Maryland, and that neither of them doth not reside therein.

Samuel Pickering.

Upon this affidavit, account annexed and warrant of attachment being produced to the clerk of Baltimore County Court, an attachment issued, accompanied with the usual process of capias ad respondendum.

The sheriff returned the attachment laid in the hands of James Neale 23rd September 1833.

The garnishee appeared and pleaded on behalf of the defendants Dana and Carman, non-assumpsit, and on behalf of himself nulla bona. Issues were made up on these pleas, and the cause continued to the next term, and for several terms thereafter, when the death of the garnishee was suggested, and the appellees appeared, they moved the court to quash the attachment.

1st. Because the affidavit on which the said attachment was issued, does not show or aver that all the plaintiffs were citizens of any State, or residents or inhabitants of the United States, or of any part of the United States.

2nd. Because the citizenship or residence of all the plaintiffs in this cause, is not sufficiently averred in the affidavit on which the attachment in this cause issued.

On this motion the [**3]  county court quashed the attachment with costs to the appellees, and the plaintiffs below appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

Under the acts of 1795, ch. 61, and 1825, ch. 114, a party issuing an attachment to compel the appearance of an absent debtor, must disclose upon the face of his proceedings, that he is a citizen of this State, or of some one of the United States; or an inhabitant or resident of the District of Columbia, or some one of the territories of the United States; and this must appear with reference to all the plaintiffs where there is more than one.  

COUNSEL:
By Glenn for the appellants, and

R. Johnson for the appellees.  

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

OPINIONBY:
SPENCE 

OPINION:

 [*275]  SPENCE, Judge, delivered the opinion of the court.
A party issuing an attachment in Maryland, to make it efficient, must show upon the face of the proceedings that such party is a citizen of the State of Maryland, or some one of the United States; or an inhabitant or resident of the District of Columbia, or some one of the territories of the United States, or an inhabitant or resident of the United States, under the provisions of the acts of 1795, ch. 61, and 1825, ch. 114. Shivers vs. Wilson, 5 H. & J. 130. Selby vs. Magruder, 6 H. & J. 454. Wever vs. Baltzell, 6 G. & J. 335.

 [*276]  It does not appear upon the face of the proceedings in this cause, that Peter Levering and Thomas W. Levering, two of the plaintiffs, are citizens of the State of  [**4]   Maryland, or citizens of any one of the United States, or inhabitants or residents of the District of Columbia, or any one of the territories of the United States, or inhabitants or residents of the United States.
The decision in Shivers vs. Wilson, 5 H. & J. 130, is conclusive, that the averment that the plaintiffs are citizens of the United States, will not give the court jurisdiction under the provisions of the act of 1795, ch. 61, and in as much as a citizen of the United States residing beyond the limits of the United States is not within the provisions of the act of 1825, ch. 114, it follows as an irresistible conclusion, that the averment in this case, that two of the plaintiffs are citizens of the United States, was insufficient to give the court jurisdiction. Concurring with the county court, we affirm the judgment with costs.
JUDGMENT AFFIRMED.
DORSEY, J. dissented.  

17 of 47 DOCUMENTS 

THE PRESIDENT AND DIRECTORS OF THE UNION BANK OF MARYLAND vs. REVERDY JOHNSON AND JOHN GLENN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 297; 1837 Md. LEXIS 33 

December, 1837, Decided 

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

This was an action of assumpsit, brought by the appellees against the appellants on the 5th day of July, 1834, to recover the sum of $ 5,000, had, and received by the appellants, to the use of the appellees. The defendants pleaded non assumpsit, on which issue was joined.

At the trial, the plaintiffs to support the issue on their part, offered in evidence to the jury, that the Bank of Maryland, whereof Evan Poultney was president, and principal owner, being in embarrassed circumstances, and compelled to stop payment, the said Evan Poultney on the 23d March, 1834, executed the following deed to the plaintiffs in this cause.

EVAN POULTNEY, deed of trust to JOHN GLENN and REVERDY JOHNSON.

This indenture, made this twenty-third day of March, in the year of our Lord one thousand eight hundred and thirty-four, between Evan Poultney of Baltimore, of the one part, and John Glenn and Reverdy Johnson, of the same city, of the other part, witnesseth, that whereas, the said John Glenn, and Reverdy Johnson, and Hugh McElderry, David M. Perine, and Evan T. Ellicott, are, and stand responsible to the Union Bank of Maryland, for and on account [**2]  of the president and directors of the Bank of Maryland, and of Evan Poultney aforesaid, or of either of them, in certain sums of money, at the instance and for the benefit of said Poultney; and whereas, it is the wish and desire of the said Poultney to save harmless, and indemnify the said John Glenn, Reverdy Johnson, Hugh McElderry, David M. Perine, and Evan T. Ellicott, for and on account of said responsibility, and for that purpose executes these presents. Now this indenture witnesseth, that for and in consideration of the premises, and of the sum of five dollars, to the said party of the first part paid by the parties of the second part, he, said party of the first part, hath granted, bargained and conveyed, and by these presents doth hereby grant, bargain and convey, to the said parties of the second part, all his, the said party of the first part's, estate, real, personal, and mixed, of every kind and description whatsoever, wherever situated. To have and to hold the said estate, real, personal, and mixed, to them, the said John Glenn and Reverdy Johnson, parties of the second part, their heirs and assigns forever, to and for their exclusive use and benefit. In trust, nevertheless,  [**3]  that they, the said Glenn and Johnson, their heirs, executors, and administrators, shall, at such time and times as they may deem it necessary, to and for the purposes of saving and indemnifying themselves, and the other parties aforesaid, sell and dispose of the said estate, real, personal, and mixed, and on such terms as they may deem proper, and at either public or private sale, and in further trust, that they apply the proceeds of the sale or sales of said property, as aforesaid to be made, to the payment and discharge of the responsibilities aforesaid, held by the said Union Bank, and for which they, the said Glenn, Johnson, McElderry, Perine, and Evan T. Ellicott, are liable as before mentioned. In testimony whereof, the said Evan Poultney hereto affixes his hand and seal, the day and year herein before written.     EVAN POULTNEY. [Seal.]

Which said deed, it is admitted, was executed and acknowledged on the day of its date, but was not recorded until the 30th June following, and that on the 8th May following, the said Evan Poultney executed to the same parties, another deed in the following words and figures, to wit:

EVAN POULTNEY, deed of trust to REVERDY JOHNSON [**4]  and JOHN GLENN.

This indenture, made this eighth day of May, in the year of our Lord one thousand eight hundred and thirty-four, between Evan Poultney, of the city of Baltimore, and state of Maryland, of the one part, and Reverdy Johnson and John Glenn, of the same city and state, of the other part: Whereas, the said Evan Poultney has heretofore obtained a loan at the Union Bank of Maryland, of fifty thousand dollars, on a certificate of special deposite issued by the Bank of Maryland, in his favour, and endorsed by him, and at his instance, and by his request, by the said Reverdy Johnson, John Glenn, and others, which loan was passed by him to the credit of said Bank of Maryland. And whereas, also, the said Reverdy Johnson, John Glenn, and others, also loaned their three notes for ten thousand dollars each to said Poultney, upon which he also obtained at said Union Bank of Maryland, a loan for that amount, which was immediately passed to the credit of said Bank of Maryland. And whereas, at the time said Reverdy Johnson, John Glenn, and others, endorsed said certificate and loaned said notes, it was in consideration that said Evan Poultney agreed to save harmless and indemnify [**5]  them, from all loss or damage from said endorsement and notes. And whereas, as a further protection to said parties, there was placed by said Evan Poultney, to their credit, in the Bank of Maryland, and which has ever since remained there undiminished, the sum of thirty thousand dollars. And whereas, also, the said Reverdy Johnson, John Glenn, and others, will be entitled, on payment of said certificate and notes to the Union Bank of Maryland, to be substituted to the rights of said latter bank, as a creditor of the Bank of Maryland, and of said Evan Poultney, and to all securities, collateral or otherwise, which the said Union Bank may hold or be entitled to, for and on account of the loans aforesaid. And whereas, the said Evan Poultney is also indebted to the General Insurance Company in an unsettled account, and is also indebted to the president and directors of the Bank of Maryland, or their trustees, Thomas Ellicott, John B. Morris, and Richard W. Gill, all of which he is desirous to secure. Now this indenture witnesseth, that for and in consideration of the premises, and of the sum of ten dollars, to him in hand paid by the said Reverdy Johnson and John Glenn, the receipt whereof [**6]  is hereby acknowledged, he, the said Evan Poultney, hath given, granted, assigned, bargained and sold, and by these presents doth give, grant, assign, bargain and sell, to the said Reverdy Johnson and John Glenn, their heirs, assigns, all the property and estate, rights, and credits of him, the said Evan Poultney, hereinafter particularly mentioned, that is to say, one-eleventh interest in the real estate of the father of him, the said Evan Poultney; the lot or lots at the intersection of Charles and Fayette streets, on which are erected a dwelling and warehouse; a house and lot on Pennsylvania Avenue in the city of Baltimore; a tract of land in Baltimore county called "Tunis," with all and singular the improvements, and so forth, containing about six hundred acres--ground rents amounting to fifteen hundred dollars per annum; a tract of land called Pickway Plains, situate on the Sciota river, in the state of Ohio, containing one thousand acres; a house and lot in the village of Bowling Green, in the state of Kentucky; eight hundred and eighty-four shares of stock in Baer's Chemical works; one thousand shares of stock in the Commercial Bank of Millington; one hundred and fifty shares [**7]  United States Insurance Company stock; five shares Baltimore and Wheeling Transportation Company stock; twenty shares in the Winchester Rail Road Company; sixty-eight shares Eastern Savings' Institution stock; forty shares Union Bank of Maryland stock; one hundred and sixty-seven shares Union Bank of Maryland stock, purchased of George Carey, hypothecated at the Savings' Bank for ten thousand five hundred dollars; fifty shares Life Insurance Company stock; nine hundred and fifty shares Bank of Maryland stock; my interest in the business of L. L. Fowler & Co.; B. W. Hewson & J. B. Steinberger & Co.; claim on Maclay and Asher amounting to twenty-three thousand three hundred and thirty-seven dollars and fifty cents, and also, all the other property and estate, rights, and credits of him, the same Evan Poultney, of every kind and description whatsoever, to which he may be in any way entitled, and wheresoever the same may be situated. To have and to hold all the aforesaid estate, real, personal, and mixed, rights and credits herein granted, conveyed and assigned, or intended to be hereby granted, conveyed and assigned to them, the said Reverdy Johnson and John Glenn, their heirs, executors,  [**8]  administrators, and assigns, forever; subject, nevertheless, to the several uses and trusts herein after stated, that is to say: in trust, in the first place, that they, the said Reverdy Johnson and John Glenn, their heirs, executors, administrators and assigns, shall, at such times and on such terms, as they may think most advantageous to all the parties concerned, and either at public or private sale, sell or dispose of all, or any part of the estate and property hereby conveyed, and execute proper conveyances for the same, and also collect by suit or otherwise, all the aforesaid rights and credits, or compromise, or in any way arrange such portions thereof, whose collection may, in their discretion, be thought doubtful. In trust, in the second place, to hold and apply the proceeds arising from such sales, collections, or compromises, to save harmless and indemnify the said Reverdy Johnson and John Glenn, and others, from every kind of loss or damage, for, or on account of the before mentioned certificate of deposite, and three notes, amounting in the whole to eighty thousand dollars, endorsed and signed by the said Reverdy Johnson, John Glenn, and others, and discounted as herein [**9]  before mentioned, and now held as aforesaid, by the Union Bank of Maryland. In trust, in the third place, to hold and apply the balance of the proceeds aforesaid, which may remain in their hands after the next preceding trust is gratified, to the payment and discharge equally and rateably, of all and every debt or debts which may be owing by said Evan Poultney, or for which he is in any way responsible. In trust, in the fourth place, to hold and apply the balance of said proceeds, which may still be remaining in their hands, to the payment and discharge, equally and rateably, of the balance of any debt or debts which may be due by the President and Directors of the Bank of Maryland, on any transaction of said bank, originating prior to the twenty-third day of March, eighteen hundred and thirty-four, after the assets then belonging to said bank, and conveyed by the president and directors thereof to Thos. Ellicott, John B. Morris, and Richard W. Gill, in trust, shall have been first applied to the discharge of the said debts. And lastly, in trust to pay over to the said Evan Poultney, his heirs, executors, administrators, and assigns, any balance of such proceeds that may remain in [**10]  the hands of the said Reverdy Johnson and John Glenn, after each and every of the preceding trusts shall have been discharged. In testimony whereof, the said Evan Poultney hath hereto set his hand and seal, the day and year first herein before written.

EVAN POULTNEY. [Seal.]

Which said deed was duly executed, acknowledged, and deposited for record on the day of its date. And the plaintiffs further offered in evidence to the jury the following letter, which, it is admitted, was written by the parties signing their names thereto, dated Apalachicola, March 24th, 1834, and addressed to Evan Poultney, post-marked 29th March, at Columbus, in the state of Georgia:

"Apalachicola, 24th March, 1834.

"EVAN POULTNEY, Esq. Baltimore.

"Dear Sir,--Your favour of 2d February, directed to us at Columbus, whence the writer has just returned, is before us. You instruct us to return the power of attorney--it has not been used--please find it enclosed herein. Enclosed also find our draft on H. W. & S. Hill, for five thousand dollars, at sixty days. When in Columbus the writer endeavoured to procure checks, but the cashiers of the banks were all absent on a visit to New Orleans.  [**11]  We now leave ten thousand dollars in United States notes, which we would remit you per mail, did your letter authorise us to do so, but we are not willing to take the risk. We had hoped that you would authorize us to pay over the funds to your agent here, or in New Orleans. All the Maryland notes which we have used here, were in bills on New Orleans, except three thousand dollars, which we paid out in our business--the bills do not mature until May, and one or two in June; hence our wish to hand over the exchange in New Orleans; however, we will endeavour to meet your views, and forward you funds as speedily as possible. The writer goes over in eight or ten days to New Orleans, and will, if possible, procure checks. If money matters are not too much derangod, we may be able to get the drafts running to maturity cashed; of this we can only conjecture. The specie that we brought over for Commercial Bank, was raised in New Orleans from our own friends, but predicated upon the remittances which we were to make on bills with Maryland notes. When the rupture took place we then bought bills with specie, which we remitted to New Orleans. We have probably fifteen thousand dollars of your notes [**12]  yet on hand, which we will use as occasion may offer for so doing safely--if we do not use it, will bring it on with us in May or June, as one of us expects to go north about that time. Any amounts we may send on to you, please receipt to Wm. Reynolds & Co. for, and in the summer we will take up all the paper, and make a full and final settlement.

Respectfully, &c.     MACLAY & ASHER.

"P. S.--The writer will address you from New Orleans--we have written over there, ordering the drafts to be cashed if possible, as we are exceedingly anxious to close the transaction, and we suppose you want your money--in less than sixty days, sir, it shall be on the way."

Which letter, it is admitted, contained a draft drawn by Maclay & Asher, dated 24th March, 1834, for five thousand dollars, drawn on H. W. & S. Hill, of New York, in favour of Evan Poultney, and which letter and draft, it is also admitted, were duly received by Evan Poultney, in course of mail, on the 7th of April. That the said draft was endorsed by Evan Poultney to Poultney, Ellicott & Co. and by the said Poultney, Ellicott & Co. deposited with the defendants for collection, in the usual course of business, on the [**13]  7th of April. That the said draft, on the same day, was sent by the defendants, as bankers, in the usual manner of collecting bills abroad, to the Merchants' Bank of New York, and the money thereon collected from the Messrs. Hill, the acceptors, on the day the said bill became due, to wit, on the 11th of June, and the proceeds received from the Merchants' Bank of New York by the defendants, on the 14th June, and, on that day, duly placed to the credit of the depositors of the said bill, to wit, Messrs. Poultney, Ellicott & Co. but withheld payment thereof until the 5th July, 1834.

And the plaintiffs further offered in evidence to the jury the following letter, addressed by them to the defendants, dated on the 2d June, 1834, which said letter, it is admitted, was in the proper hand writing of the plaintiffs, and was received on the day of its date by the defendants:

"ROBERT MICKLE, Esq. Cashier:

"Sir,--I am informed by the acceptors, Messrs. S. W. & H. Hill, of New York, that you are the holders of a draft for $ 5,000, drawn by Maclay & Asher, of Apalachicola, in favour of Evan Poultney, of this place, and which is now in the Merchants' Bank of New York, sent there by [**14]  your bank for collection. You are apprised, I believe, if not this will inform you of it, that on the 23d March last Mr. Poultney executed to John Glenn and myself a deed of all his property, including the claim he then had against Maclay & Asher, and that early in the last month he executed another deed to us, both deeds intended for the benefit of his creditors.

"You will, therefore, please take notice, that Mr. Glenn and myself claim under those deeds, all property, rights, and credits of every description, belonging to Mr. Poultney on the 23d March last; and, consequently, that if the draft referred to was received by him subsequent to that time, or was in his possession on that day and not discounted by others, it is our property; and if such are the facts, which in a measure will appear by the draft itself, we shall claim the proceeds as soon as they are received by you.

Yours, respectfully,

REVERDY JOHNSON & JOHN GLENN,

By R. Johnson,     Trustees of E. Poultney.

Baltimore, 2d June, 1834."

And the plaintiffs further offered in evidence to the jury, that William M. Ellicott, one of the firm of Poultney, Ellicott & Co. on the 23d of March, 1834,  [**15]  that day being Sunday, called on J. B. Latimer, a justice of the peace, and asked him to attend at the house of E. Poultney, in order to take the acknowledgment of the deed of 23d March, and that the said William Ellicott went with said Latimer, and was present when the said deed was executed. And the plaintiffs further offered in evidence to the jury, in order to show knowledge in the said Poultney, Ellicott & Co. of the execution and tenor of the said deed of the 23d of March, the following letter, addressed by them to a certain B. W. Hewson, of Cincinnati, which letter is dated on the 7th June, 1834, and is admitted to be in the hand writing of the said Poultney, Ellicott & Co.:

"Banking House of P. E. & Co. Baltimore, June 7th, 1834. "B. W. HEWSON,

"Dear Sir--Yours of the 2d is received; the draft in favour of S. L. Fowler & Bros. has been presented, and we have requested them to hold it until we wrote to you on the subject. It appears by a conversation with the trustees of Evan Poultney, that they propose to hold us responsible for all entries and transactions in which he is concerned since the 23d March--such being the case, although we feel confident that they cannot [**16]  succeed in it, do you not think it would be better for you to make provision for those drafts of Amelung's out of the materials you have in hand; either by transferring notes or bills for the purpose, or even by holding the claim on Amelung for the benefit of S. L. Fowler & Co. This you can do, not having been officially advised of any deed or conveyance which ought to prevent you; whereas, if we were to make any payments on account of the concern, it is possible we might have to pay the same over again to the trustees, and have a suit to contend against in addition. Fowler can suffer no inconvenience in laying out of the money for a while, inasmuch as the money employed in that concern (S. L. Fowler & Co.) was all furnished by Evan--at all events it would be better to wait a while, and see what is likely to turn up. You may rest assured, that we shall suffer nothing to go out of our hands that we can keep, and will do every thing we can to protect you in the matter in every way. The course pursued by the trustees, Morris & Gill, in relation to the stock, seems very extraordinary, and deserving of such notice as we shall endeavour to take of it when the proper time comes. It is certainly [**17]  calculated to injure you as well as ourselves, but it is only another instance of the utter recklessness with which they have thought proper to act towards all those whom they choose now to consider themselves authorized to attack. We do not know whether the stock is sold or not, having sent it to New York to be sold at certain limits, which we are not advised whether they have been obtained or not. If it is sold and is sent to Cincinnati to be transferred, we presume the cashier will not hesitate to transfer it; we should think he would be very unjustifiable in doing so upon the faith of any such letter as the one you refer to, and would perhaps render himself liable for damages both to you and us. There is a scheme a-foot, by which the creditors of the Bank of Maryland intend to endeavour to put their affairs in a way to get rather more for them than they seem likely to do under the administration of Messrs. Morris and Gill. We send you the 'Republican' of this morning, containing the proceedings of the first meeting, also a copy of a circular addressed to the principal creditors. It is to be hoped that matters will, before long, be somehow got into a way which will be more satisfactory.  [**18]  We will write you again in a day or two.

Respectfully,     POULTNEY, ELLICOTT."

And the plaintiffs further, to support the issue on their part, gave in evidence to the jury, from the books of Poultney, Ellicott & Co., the following entries, contained in the leger in Evan Poultney's account:

________________________________________________________________________________
"EVAN POULTNEY--page 604.	
March	31.	F. Schelles' note,	$ 50 50	
April	2.	   ch.	800 00	
"	"	   "	4,161 86	
"	"	   "	5,000 00	
"	4.	Paid S. Poultney, trustee,	12,676 45	
"	9.	Bal. E. P. Bank,	16,972 99	
"	"	Bal. from Mountenay farm,	3,145 42	
"	10.	N. Williams' note paid in Bank Md.	2,000 00	
"	22.	   ch.	204 51	
May	6.	   ch.	5,610 00	
"	"	   ch.	476 85	
"	23.	   ch.	1,561 16	
June	21.	35 shares Bank of Maryland stock,	17,500 00	
"	"	   "   "	2,950 00	
"	25.	Sundries,	35 48	
Aug.	14.	   ch.	15 00	
Sept.	3.	   "	25 00	
"	4.	   bill,	5 00	
Oct.	10.	   ch.	20 00	
Dec.	8.	Loss on Farmers' and Merchants' Bank	
		  Stock,	3,500 00	
"	22.	Interest on his account,	12,438 30	
1835.	
Feb.	23.	   do.   do.	121 33	
March	4.	Paid Bank of Maryland on account	
		  of B. W. Hewson,	895 51	
"	26.	Sundries,	585 81	
"	"	To sundry accounts as per journal	
		   entry in check-book P.	238 74	
		To transferred to new account,	188 93	
1834.	
March	31.		100 00	
"	"	Bal. of Bank of Baltimore Stock,	176 00	
April	2.	Cash,	4,213 03	
"	5.	Ch.	15,000 00	
"	9.	 "	7,000 00	
May	6.	 "	2,000 00	
"	"	 "	3,000 00	
"	"	1447,	4,969 17	
"	8.	Cash,	6,965 32	
July	5.	 "	9,226 95	
Dec.	12.	Balance of B. W. Hewson's account,	4,591 94	
"	"	Balance of S. L. Fowler & Co's acct.	2,933 09	
"	"	Balance of B. Poultney's account,	843 17	
"	22.	Part of certificate 1046 and interest,	6,200 00	
"	"	Bal. Mountaney Farm and interest,	3,278 03	
1835.	
March	26.	By sundry accounts as per journal	
		   entry, in check-book P.	9,517 05	
March	26.	Balance of Bank Note account journal,	
		   Ch. Bk. P.	85 00	
"	"	Bills payable,	400 00	
"	"	Transferred to new account,	4,970 24	
"	"	Sundries as per journal Ch. Bk. P.	188 93."	
________________________________________________________________________________

 [**19]  

Also, by the entires from the general leger of the said Poultney, Ellicott & Co. containing the account of special deposites due by that house on the 22d of March, 1834, when the Bank of Maryland stopped payment; that on that day said Evan Poultney had, to his individual credit, on special deposite with that house, $ 170,000, and as trustee $ 138,144 95, and that said account did not show who were the cestui que trust of said last deposite. And here the plaintiffs rested their case.

The defendants, to support the issue on their part, offered in evidence to the jury, after the plaintiffs had given all the above evidence, as herein before set forth, a letter dated June 30th, 1834, from the defendants to the plaintiffs, which letter it is admitted was duly received by the said plaintiffs, and is admitted by them as legal and competent evidence in this cause, which letter, it is admitted, contained a copy of the resolution of the bank of the 30th June, hereinafter set forth, as a part of the proceedings of the bank. And also offered in evidence the following extract from the minutes of the defendants, which, it is agreed, shall be received in evidence in the cause, which minutes [**20]  contain the proceedings of the board of directors on the 30th June, the 3d and 5th of July, 1834, and shew that they consulted counsel as to their liability under the communication made by the plaintiffs to them on the 2d June, and that the said sum of $ 5,000 collected on the draft (the discount being deducted) was actually, and in fact, paid over to the said Poultney, Ellicott & Co. on the 5th July, in pursuance of the opinion of counsel:

"Extracts from the minutes of the Union Bank of Maryland.

"1834, June 30. On motion, resolved, that the cashier be directed to ask from said parties (Messrs. Johnson and Glenn) the deeds of trust under which they make the claim set up in the said letter (letter of June 2d) on or before Thursday next."

"1834, 3d July. Ordered, that this board request the opinion of George Winchester, Esq. as to the right of the bank to hold the sum of five thousand dollars, collected for account of Poultney, Ellicott & Co. and claimed by Reverdy Johnson and John Glenn, by their letter of 2d June last, and that the board meet on the morning of the 5th instant, at eight o'clock, to receive the said opinion."

"1834, July 5th. The president laid before [**21]  the board the following opinion, obtained in pursuance of the minute of the 3d of July, 1834, viz.

"My opinion is asked by the Union Bank of Maryland upon the following statement of facts. Poultney, Ellicott & Co. private bankers in the city of Baltimore, on the 7th of April last, deposited with the Union Bank of Maryland, for collection, on account of said P. E. & Co. Maclay & Asher's draft on H. W. & S. Hill, of New York, for $ 5,000, the draft was forwarded in the usual way, became due on the 11th of June, and was duly paid. In the meantime, viz: on the 2d June, the Union Bank were informed by Messrs. Johnson and Glenn, that they claimed this draft as part of the property of Evan Poultney, who had transferred all his estate to them as trustees, by two deeds, one dated 23d March last, and the other on the 8th of May last. Upon examination it appeared, that no deed of the 23d March could be found on record; the deed of the 8th of May was executed and recorded on the day of its date. The deed of the 23d March, has since, viz: on the 30th June, been put on record." The question upon this statement is, has the bank a right to hold the money thus collected, and refuse to pay it over [**22]  to Poultney, Ellicott & Co. on their order? I think not, and that in justice it cannot be properly withheld from them. As a general principle, which is essential to the regulation of banking and commercial operations, the Union Bank could know no one in this transaction but Poultney, Ellicott & Co. from whom the draft was received, and to whom alone the bank was accountable. Such is the universal practice, and this, like all other cases, must be governed by it. Or, a contrary principle, if adopted, must be equally general in its operation, and thus establish an inquisition into the private concerns of all persons who had dealings with the bank. The bank cannot recognize any other person as having an interest in a bill or note, but he who appears as the holder of it; any other course would involve them in interminable litigation. Courts of justice are the proper tribunals for the decision of all such questions. But even if the bank were at liberty to exercise a discretion in the matter (which I do not think they are) it would not alter the case. It appears that the bill was deposited for collection by P. E. & Co. on the 7th of April, 1834, and that the deed of trust (which was duly [**23]  executed and recorded) was made on the 8th May following, a month after. Now the title of P. E. & Co. under the legal operation of this deed, could not be affected to the bill itself, in their hands as endorsers, or will the bank undertake to step over these facts, and institute an inquiry, as to how and when, and from whom, and upon what consideration, P. E. & Co. received this bill, and to determine to retain the funds to meet what, in their view, may be the proper mode of distribution. According to the deed, the trustees have clearly no right to the bill, as it was passed away before the deed was made in the ordinary course of commercial operations. Whatever the claim of the trustees may be, is a matter between them and Poultney, Ellicott & Co. to be decided in the ordinary way, and before the proper tribunals, and no where else. The production of the private deed of the 23d March, and putting it in record long after the bill was paid, and the funds in the hands of the Union Bank, as agents of Poultney, Ellicott & Co. does not alter the case; why this deed has been kept back, and why it is now produced, will, no doubt, be a subject of investigation elsewhere; certainly the bank [**24]  have nothing to do with it. Can the bank undertake to say how far it is valid; whether it was not revoked by the subsequent deed, and so understood by all the parties, or in one word, how can they undertake to decide any question about it? The state of the case is simply this--the bank finds itself in the possession of the proceeds of a bill collected for one of its customers, in the ordinary course of business, who requires it to be paid over to him; another person interposes a claim and says, I am entitled to it under a deed made to me at such a time, and here it is--it turns out to be a month after this bill was transferred to the present holder--but, says the claimant, here is another deed of an earlier date, which it did not suit me to make use of, but which I bring forward now, as showing me to be entitled to it, and I pray you to hold this money until the validity and effect of this deed shall be established by law. Under such circumstances there would seem to be no difficulty as to the course of the bank. There is another view of this subject, which shows that the bank ought not to interpose to arrest these funds, to the injury of their acknowledged principal in the business.  [**25]  It appears by Mr. Johnson's letter, dated 2d June, that he had corresponded with the acceptors of the bill in New York, and knew at what bank the bill was placed for collection, it was in the power of the trustees then (if they had a legal or equitable right) to have instituted legal proceedings in New York, and have arrested the funds from passing into the hands of Poultney, Ellicott & Co. and thus have placed the controversy where it ought to stand, between the trustees of E. Poultney, and Poultney, Ellicott & Co.--having failed to avail of this remedy, the natural, and proper, and legal one, is it to be expected that the bank will consent to interpose itself between the litigants, after the money has been collected and is virtually in the hands of P. E. & Co. I would again remark, that the clear remedy of the trustees is against Poultney, Ellicott & Co. who are responsible for whatever claim may exist against them, in the courts of law or equity.     GEORGE WINCHESTER, 4th July, 1834."

When, on motion, it was resolved, that the cashier be directed to pay to Poultney, Ellicott & Co. the sum of $ 5,000, mentioned in the said minute of the 3d inst."

And the plaintiffs,  [**26]  on their part, offered in evidence to the jury, that in reply to the letter herein before set forth and described, as addressed to them by the defendants, dated 30th June, as aforesaid, they sent to the defendants a copy of the deeds of the 23d March, and 8th May, 1834. And the plaintiffs further offered in evidence, from a book of Poultney, Ellicott & Co. entitled "Personal Account Ledger," as herein before inserted. (It is understood that the defendants reserve to themselves all legal objections to the testimony herein above set forth in this statement of facts, so far as the same is offered to prove that Poultney, Ellicott & Co. or Thomas Ellicott, had knowledge of the deed of the 23d March, 1834.) It is admitted by the plaintiffs, that up to the 7th of April, 1834, and for some time afterwards, they were not obliged to pay, nor had they paid any moneys, or suffered any loss, on account of the said Evan Poultney, against which the said deed was intended to indemnify them; but that the said plaintiffs have, from time to time, since the 7th of April, collected and paid over various sums of money, received from divers persons, under and by virtue of said deeds of 23d of March, and [**27]  8th May, 1834, all of which was paid to the defendants, under and in pursuance of the said deed, and was known by defendants to have been received by plaintiffs under said deeds of 23d of March, and 8th May, 1834. It is also admitted, that no measures were taken at law or otherwise, except such as is herein before set forth by the plaintiffs, to arrest or suspend the negotiation of the draft for $ 5,000, nor that the same was ever delivered to them, nor its delivery demanded by them from any of the parties into whose hands it had passed. It is further admitted that they were under liabilities for the said Evan Poultney to the defendants, as security for him, at the date of the said deed of 23d March, to the amount of $ 80,000, and these are the only liabilities of said plaintiffs for said Poultney. Whereupon, the defendants, by their counsel, prayed the court, upon all the evidence above set forth, to instruct the jury, that if they believe the evidence in the cause as above set forth, the plaintiffs are not entitled to recover in this action.

1. Because the deed of 23d March, 1834, from Evan Poultney to the plaintiffs, not having been recorded until the 30th June following, did [**28]  not pass a title in the bill in question to the said plaintiffs, which was valid and operative in law against the title acquired by Poultney, Ellicott & Co. under the endorsement and delivery to them from Evan Poultney.

2. Because no title to the bill passed by the said deed to the said plaintiffs, the said bill never having been delivered to the said plaintiffs, either at the date of the deed or afterwards, and the said plaintiffs never having forbidden the negotiation of the said bill, by notice or otherwise, and the said bill being, in fact, negotiated by the said Evan Poultney, by endorsement to Poultney, Ellicott & Co. and by Poultney, Ellicott & Co. deposited with the defendants for collection.

3. Because the items of the deed do not comprehend or include choses in action, or bills, or promissory notes, and therefore conveyed no title to the bill in question to the said plaintiffs.

4. Because the deed of 23d March, being intended to save harmless and indemnify the grantees against liability, and to secure them for any payments they might be obliged to make on account of E. P. and the said Johnson and Glenn having neither taken possession of the draft in question,  [**29]  nor forbid its negotiation, nor resorted to any measures at law or otherwise, to obtain possession of the draft, or to arrest or suspend its negotiation, and the said Johnson and Glenn not having been obliged, up to the 7th of April, to pay any money for the said Evan Poultney, nor in other way having incurred loss against which the deed was intended to secure them, by reason of all which, the said plaintiffs acquired no title under the deed sufficient to invalidate the right of the defendants, to pay over the proceeds of the draft to the said Poultney, Ellicott & Co.

5. Because, although the said deed may have conveyed the interest of the said Evan Poultney, in the said draft, to the said plaintiffs, yet the said draft having been assigned, by endorsement and delivery, to the said Poultney, Ellicott & Co. and by them deposited with the defendants for collection, and by them collected and paid over to the said Poultney, Ellicott & Co. the defendants were bound to account for the proceeds of the said draft, and justified in paying over the same to the persons from whom they had received it.

6. Because that the said deed of the 23d March, although it may have conveyed the interest [**30]  of Evan Poultney in said draft to the said plaintiffs, yet the same not having been placed on record, or notice thereof given to the said defendants, when the said draft was deposited for collection in the Union Bank, and when the liabilities of said defendants, as agents in the collection of said draft, commenced to the said Poultney, Ellicott & Co. the subsequent notice given by the said plaintiffs to said defendants on the 2d June, could not alter or modify the obligation already existing on the part of said defendants, to account for and pay over to the said Poultney, Ellicott & Co. the proceeds of said draft when collected.

Which instructions the court refused to give--the defendants excepted.

The jury found a verdict for the plaintiffs for $ 5,000, and the defendants appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

On the 23d of March, 1834, E. P. conveyed to the plaintiffs all his estate, real, personal, and mixed, in trust to sell the same, and apply the proceeds to the indemnification of the plaintiffs and others, against certain responsibilities which they were under for him. This deed was duly acknowledged, on the day of its date, but not recorded until the 30th of June following.

On the 8th of May, 1834, the said E. P. in consideration of the said responsibilities, and of other debts due from him, executed another deed to the plaintiffs, conveying to them all his property and estate, rights, and credits; in trust to indemnify the plaintiffs and others, and for other purposes.

Certain agents of E. P. on the 24th March, 1834, remitted him by mail, a draft for $ 5,000, at 60 days, drawn on a mercantile house in New York, which was received by him in Baltimore on the 7th of April, following.

On the same day E. P. endorsed and delivered the draft to P. E. & Co. who deposited the same with the defendants for collection on the same day, in the usual course of business.

This draft was forwarded by the defendants to New York for collection, was paid there on the 11th of June, 1834, by the acceptors; the proceeds received by the defendants on the 14th of the same month, and on that day was passed to the credit of the depositors, P. E. & Co.

On the 2d of June, 1834, the plaintiffs apprised the defendants by letter, that they claimed the proceeds of this draft, under the before mentioned deeds, if it was received by E. P. subsequently to the 23d of March, or was in his possession on that day, and not discounted by others.

After the receipt of this letter, and after the receipt by the defendants of the money for the draft, to wit: on the 5th July, 1834, they, in conformity with the opinion of counsel, paid the same to P. E. & Co.

The plaintiffs offered evidence to show that P. E. & Co. were indebted to E. P. at the date of the deed of the 23d of March, 1834, and on the 7th of April following, when he endorsed the draft in question to them, and that they had knowledge of the execution of the deed.

It was in proof, that the plaintiffs up to the 7th of April, 1834, had paid no money, nor suffered any loss on account of their responsibilities for E. P. though after that date, they had collected and paid away various sums under the deeds.

Upon this state of facts, the plaintiffs instituted suit against the defendants on the 5th July, 1834, for the amount of the draft, and it was held, upon appeal, that they were entitled to recover.  

COUNSEL:
LATROBE, for the appellant:

There are but two main questions. 1. Is to ascertain the relations which subsisted between Poultney, Ellicott & Co. and the Union Bank, on the 7th April, 1834. What the obligation of the bank resulting from them? And 2. Was that relation modified or released by the notice of the plaintiffs below?

The relation in the [**31]  first case, was that of principal and agent. The obligations on the bank arose from its character as agent. What then is the effect of notice by a third party to an agent? How far are third parties empowered to release the bank from the obligation to pay Poultney, Ellicott & Co.? The agent cannot be liable to two principals; therefore if the notice made the bank liable to the plaintiffs, it must also release the bank from liability to Poultney, Ellicott & Co. Nor can there be a better test than whether the defendants are still liable to that firm. If responsible to them, they are not responsible to the plaintiffs. It is unnecessary to review the law of principal and agent. Paley on Agen. 289, lays down the rule, that where an agent names his principal, the principal and not the agent is the responsible person to third parties. Paley on Evid. 304. An agent receives money from his principal, and which may be recovered from the principal. As long as the agent has the money, the creditor has an election. But this is when the party paying the money seeks to recover it back. It does not apply to a third party. Butler and Harrison, Cowper. 3 Maul. and Sel. 344.

Again: An agent is liable [**32]  to a third party where he receives money specifically appropriated to a third party. There if he is expressly bound, he becomes liable to pay such third party. 14 East. 582. 3 Price, 58. 3 B. and Ald. 664.

An agent is only liable when there is privity either between the third party and the agent, or his principal. It is not pretended here, that the Union Bank received the money from the plaintiffs, nor any specific appropriation of the fund.

The plaintiffs contend that the draft in question was their property, and that a liability results from paying their money to Poultney, Ellicott & Co.

This involves two questions: 1. Can the plaintiff try title in an action against the agent, the bank? 2. Did the deeds show they had title?

That this title of plaintiffs cannot be tried in an action against these defendants, and that the agent cannot be converted into an implied trustee. See 5 Mad. C. R. 36. 9 Price, 269. 4 Eng. Ex. Rep. 89. 2 Bar. and Ald. 310. 7 Bing. 339. 2 Hall. N. J. 1. 9 Bing. 312. 23 Serg. and Low. 312.

The present case is distinguishable from that in 9 Bing. on the ground of fraud.

If the plaintiff intended to rely on fraud, the notice was not [**33]  sufficient. The notice relies on the deeds only; the first deed was not recorded, and was not evidence to the bank. It was not known to Poultney, Ellicott & Co. so as to make their conduct fraudulent; nor is there any proof of fraud on this record. The second deed was a substitute for the first. That deed did not convey the draft; it only conveyed $ 23,000 of Maclay & Asher's debt, while they on the 24th March still owed him $ 28,000.

If competent to make the bank an implied trustee, the plaintiffs exhibit no such title as will make the bank liable. What sort of notice is sufficient to effect this object? From whom may it come? Its effect upon the character and means of merchants and bankers would be ruinous. The rule is liable to great abuse. The stoppage of funds in the hands of a bank by mere notice, would be highly prejudicial, and the general rule, which requires privity of contract, is salutary.

Notice of all facts in possession of the claimant should be given, and it should state the facts necessary to make out the title on which reliance is placed. Here the facts of the title are displayed. It depends on the deeds alone, but no more. 7 Bing. 20 Serg. and Low. 426.  [**34]  Buller N. P. 133.

The action of a third party against an agent or collector, cannot be sustained if he can show the least colour of right in his principal; and here the bill of exchange was transferred at law.

R. JOHNSON, for the appellees:

The responsibilities of the appellees for the debts of the Bank of Maryland, were all in the hands of the Union Bank of Maryland. The record does not state the time of the failure of the Bank of Maryland, nor when the former dynasty of the Union Bank of Maryland terminated, nor show the prompter of the payment to Poultney, Ellicott & Co.; but the deed of March, 1834, was executed in the presence of William M. Ellicott, one of the firm of Poultney, Ellicott & Co. That deed was one of indemnity. The deed of May was not a substitute for the deed of March; it contains other stipulations; it gave security to the creditors of the Bank of Maryland generally. The ground of the second deed is greater than the first; the objects of the two were not the same. The latter called for more property, but did not abandon any thing which the first conveyed. It was no extinguishment of the deed of March.

The evidence shows that on the 23d March,  [**35]  1834, besides $ 80,000 in hand, due Evan Poultney, they, Poultney, Ellicott & Co. owed E. Poultney $ 170,000. This appears by their books, in all $ 250,000 due him, Evan Poultney, individually. And also, upon special deposite, in trust for some undisclosed principal, $ 138,000--making in all, nearly $ 400,000. The effect then, of the deed of March, known to P. E. & Co. was to convey all the funds in their hands, belonging to Evan Poultney. It was not confined to Maclay and Asher's debt.

The open account shows payments to Evan Poultney, or on his account, the whole sum of $ 80,000. And there is a piece of evidence, the letter of the 7th June, 1834, addressed to B. W. Hewson, pregnant with fraud. This letter was read at the trial without objection--read to show P. E. & Co's knowledge of the deeds of March and May, 1834, and that under the deed of March, the appellees, as trustees of Evan Poultney, claimed this property, and honestly suggested to Hewson, that as he was not officially advised of the deed, he might hold on to the property, though Poultney, Ellicott & Co. could not. Their notions of fraud being notified of the deed forbidding it. Maclay and Asher, from Apalachicola,  [**36]  1,000 miles off, mailed the draft for Evan Poultney on the 29th March. It reached him on the 7th April, 1834. On that day he endorsed it, delivered it to Poultney, Ellicott & Co. and they deposited it in the Union Bank for collection. On that day Poultney was a large creditor of that concern, and no evidence to show that P. E. & Co. had paid one dollar of consideration for this draft of $ 5,000. The draft was remitted by the Union Bank to New York for collection. The appellees hearing of this draft, inform Messrs. Hills, the acceptors of their property in it, and they notify the Union Bank not to pay--the draft not then being collected. The Union Bank, then not creditors of P. E. & Co. and the notice informed them that the claim was made under their deeds. The money was received on the 14th June, 1834, and the bill paid some twelve days after notice. From the 14th June until the 30th, 16 days, the bank rested on the notice, and then the deeds of trust are asked for. Being produced on the 3d July, the opinion of Mr. Winchester is asked for, and a special board of directors was called at 8 o'clock on the 5th July, which sanctioned the payment of the money we now claim--and we are told [**37]  we have no right.

As a general rule between principal and agent, the jus tertii cannot be tried. The counsel is in error, in supposing the jus tertii cannot be tried for want of privity of contract. The case in 23 Serg. and Low. 312, if the want of privity is the ground of the doctrine, cannot be sustained. In that case there was neither contract nor privity.

The case of 20 Serg. and Low. 153, certainly decides that the character of principal and agent, as a universal proposition, does not exclude from the agent the right of setting up the true owner, or prevent the true owner from recovering from the agent.

There is no rule of policy which throws the true owner on the principal, and forbids his proceeding against the agent himself. If he recovers against the agent, it is the judgment which is the protection of the agent against the principal.

As respects the agent, he is just as much protected in deciding the title between him and the true owner, as between him and his principal.

The case then, in effect, decides that the agent can only protect himself against the true owner, by setting up a better title in his principal.

The action of ejectment furnishes [**38]  an analogy. Why should circuity of action be sustained? The true owner must have his remedy against somebody. The argument on the other side concedes we could recover from Poultney, Ellicott & Co. upon the deeds. The objection is not a want of title in the plaintiffs, but a want of title as against the agents of P. E. & Co.

If the rule applies at all, it applies to an agent who does not pay over. The plaintiffs then would be bound to wait until the principal recovered from his agent. This is delayed and increased litigation.

All the cases relied on, are cited in Hademan vs. Wilcox, 23 Serg. and Low. 312. That case is a decisive authority here. It proceeds on the ground that the plaintiff and an insolvent by collusion, put goods into the hands of the plaintiff's agent, and yet the agent set up the title of the insolvent's assignees as a defence.

In this case there is abundant evidence of collusion, and the proof is left without explanation, which authorized the rejection of the defendants' prayers below.

Upon their doctrine the fraudulent collusion might be found, and this court is asked, despite of that, to say the plaintiff cannot recover here, because of no privity [**39]  between plaintiff and defendant.

The counsel attempts to distinguish this case, on the ground that in the decision in 23 Serg. and Low. the agent was informed of the fraud, and here the agent was only notified by implication. He thinks that notice of fraud is essential to maintain the action against the agent, and that on such a notice, and proof of fraud, the recovery may be had. They say we can recover from the New York Bank, or from the acceptor. The one being agent, and the other having only contracted with the legal owner of the draft. This in truth, is a surrender of the case.

The notice is no part of the cause; it is a caution to the agent, who, if he pays without notice, is justified; but if he pays after notice, he is liable if the fund belongs not to his principal. A suit against the agent operates as notice.

Independent of all notice, so long as the fund remains with the agent, the true owner may sue at once. The suit is no allegation of fraud, nor notice of fraud. Fraud, in fact, sustains the action. The whole object of notice is to protect the agent from an innocent payment to his principal. The want of privity is not sufficient to defeat the true owner.  [**40]  Either the proceeds of the draft, or the draft, may be recovered. If fraudulent collusion does not divest the plaintiff below, who can doubt but that trover would have lain for the draft.

Then the nature of the notice given to the bank, and the deeds of Poultney laid before it. The bank knew of his endorsement; the dates of the transaction. They knew the draft not endorsed prior to 23d March, and when he endorsed it, that he parted with funds not his own. They knew the transfer was a fraud on the deed.

The opinion in 23 Serg. and Low. places the right on the fraud in fact, and not on the notice.

If Poultney had himself given the draft to the defendants, there could be no doubt about the action; and the intervention of Poultney, Ellicott & Co. can make no difference. They claim by a fraudulent collusion with Evan Poultney, which cannot fortify their right.

The prayers here were erroneous, because they took the case from the jury--fraud or no fraud. They were intended to take from the jury the very ground on which the right to recover existed, and on which the jury found.

Then as to the operation of the deeds, the recitals of the deed of 24th March gave notice [**41]  to three parties. It was valid as respects Poultney. When he received the draft in April, he knew he was receiving what he had no title to. The deed passed all he had. On the 11th June, when the fund was received by the bank, it was known the plaintiffs were entitled to it; they were the equitable owners of the sum--the proceeds of the draft. The moment the Union Bank received this fund it belonged to the plaintiffs, was for their use, and they can recover in this action. The act of 1829, ch. 151, would enable them to sue in their own names.

J. P. KENNEDY, in reply:

It is difficult to imagine a more perplexing position than that of our banking institutions generally, if the counsel for the appellees is correct. An institution daily concerned with the collection of paper belonging to numerous parties; a business requiring despatch and promptitude in its administration; that such a body should be liable to be placed in an attitude of litigation, called on to exercise her judgment between conflicting parties, and incur penal responsibilities for errors of decision, is an evil greatly calculated to diminish its utility. If a bank charged with the collection of negotiable paper [**42]  is in the predicament supposed, it equally concerns both its customers and the community. If the credit, standing, and fortune of a trader is to be questioned upon a mere notice, he would often be forced to suspend payment, and await the determination of the question of right, shadowed forth by any claimant, and at the same time the bank refusing to pay, would be liable to damages to one party or the other.

What rule of conduct shall the courts establish for the government of agents? Can notice from any person suspend the payment of your notes? Must the notice establish title? Who is to be the judge of the title? Is the opinion of the astute to prevail? But this rule is not admitted.

It is said the notice is compulsory on the bank, to hold the fund at the high peril of all the consequences before stated. The amount is immaterial. If an agent submits to such a demand, he is responsible in damages.

In all cases, the agent ought to turn the party over to his principal, and be discharged. This ought to be his course of business. The other party may proceed by attachment or by injunction. To intercept the fund, he should be forced to resort to his legal or equitable remedies;  [**43]  adopt compulsory remedies as to the agent. This should be the general rule as to commercial agencies, that he may acquit himself by paying over, and so transfer the controversy.

The exceptions to the general rule are founded on fraud; the knowledge of that fraud should be carried home to the agent, that he may determine how far his case is within the exception. Being satisfied of fraud, he ought to hold up the property.

Then, do the facts show any fraud between these parties, known to the agent?

At the time of the execution of the deeds, there was no design of fraud.

The court must determine on some grounds, that the agent is authorized to hold up the fund, or pay it over. No subject is more difficult to handle, and none more delicate, than the establishment of rules applicable to such subjects.

As to the facts; information of the failure of the bank was received on the 23d March. Various parties were bound by heavy liabilities for her. The deed was drawn up rapidly by the grantor, to secure them from responsibility. The 23d was Sunday; the character of the transaction is legible on the face of it; there is no reference to payments, nor any enumeration of the [**44]  property conveyed--a broad conveyance of all the grantee had to cover all his debts. That done, the parties were secured and free from attachments. On the 8th May a deed was prepared more at leisure; a new deed was executed. The first deed was not recorded; the second deed was prepared and executed. No reason now existed for recording the first deed, which could give no vitality to the subsequent deed. In the letter of the 29th March, a draft arrives at Baltimore on the 7th April. The Union Bank finds it lodged for collection. No knowledge of the deed nor any fraud. Their duty was to send it forward. The trustees of Poultney come to the knowledge of this draft, and they give the notice in the record. No information of fraud is communicated to the bank. The notice is only a hypothetical statement. The Union Bank called for the deeds, and they had no reference to the transaction.

The misconduct of Poultney, Ellicott & Co. is not to be imputed to the Union Bank; the bank did not know that Evan Poultney was a creditor of that house, nor was the monstrous letter of Poultney, Ellicott & Co. known, which showed a priori that they intended to fill their pockets. The Union Bank knew not [**45]  of these things, but was left to act and decide upon its naked rights.  

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

OPINION:

 [*324]  By the Court:
JUDGMENT AFFIRMED.  

18 of 47 DOCUMENTS 

JOHN GLENN, TRUSTEE OF M. DORSEY, vs. ANN CLAPP, EXECUTOR OF AARON CLAPP.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 1; 1839 Md. LEXIS 22 

December, 1839, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the equity side of Baltimore County Court.

On the 21st March 1832, Thomas Morris and William Egerton exhibited their bill of complaint, suggesting that a certain Michael Dorsey being indebted to them on the 5th November 1831, in the sum of $ 312.90, to secure the same, executed a mortgage of certain property in the city of Baltimore; that two days before the execution of said mortgage, that is to say, on the 3rd November 1831, the said Michael Dorsey executed another mortgage of the same property to one Aaron Clapp. The bill prayed for a subpoena for Clapp and Dorsey, and a sale of the property and payment of complainant's debt. The mortgage of the 5th November 1831, was exhibited with the bill. The defendants answered the bill, and on the 3rd April 1832, Baltimore county court decreed a sale of the property, and directed the proceeds to be brought into court for distribution. On the 19th March 1834, the trustee reported a sale made on the 13th of that month, for $ 490 to Thomas Harwood, and the court passed the usual order of ratification nisi. Before the time expired under this order, to wit, on the 28th March 1834, John Glenn, trustee of the said Michael Dorsey,  [**2]  filed in said cause the following exceptions, and prayed that the sale made and reported by R. Purviance, junior, may not be ratified and confirmed, for the following reasons.

1. That a bill was pending to vacate the deed and decree, under which said sale took place, when the same was made.

2. Because the price paid for the property did not exceed half its value.

And he prays that the trustee may state, whether he does not consider the property worth nine hundred dollars, or nearly that sum.

Afterwards, on the 23rd of March 1837, Robert Purviance, junior, the trustee aforesaid, filed in said cause his answer to the exceptions aforesaid, viz: that the lot by him sold was a front lot, with the improvements of a small dwelling erected upon it, it being the same that is described in the mortgage deed filed in the cause, but this lot had connected with it another lot held by Michael Dorsey, under some agreement, or contract of lease from the Baltimore Water Company, which other lot extended within a few feet of the back steps of the said front house, and was absolutely essential to the comfortable enjoyment of the front house by the tenant; said Dorsey having possession [**3]  of both; but the back lot not being included in the mortgage, trustee had no right to sell it, and the same being claimed by Mr. John Boggs, under a levy, or an actual sale made on a judgment against said Michael Dorsey. Trustee has enquired about the date of said levy and sale, but has not been able to obtain the same, not knowing the name of the magistrate who rendered the judgment, or the constable who levied the execution, and the trustee not deeming it proper to refer to Mr. Boggs upon the subject. With regard to the value of the property, trustee is not prepared to speak positively, he certainly would consider it worth much more than $ 490, but does not think it worth nine hundred dollars, the back yard being partially cut off, as above mentioned. Something either was mentioned about the title to the property, or some impression prevailed among the company, that there would be a difficulty--trustee after this long interval of time not recollecting precisely what was said, or whence the impression was derived, but it was this impression, or the cutting of the yard as above, which caused the lot to be sold for less than its intrinsic worth; the property is liable for the dower [**4]  of the wife of Michael Dorsey.

The said Glenn then filed the following petition, to wit: The petition of John Glenn, permanent trustee of Michael Dorsey, humbly shows, that since the decree obtained in this cause, Michael Dorsey has become an insolvent debtor, and your petitioner has been appointed his permanent trustee, and duly given bond as such. That since the decree was rendered in this cause, the amount for which the same was rendered, has been fully satisfied and paid, which fact this petitioner has only ascertained this day. He also states that both Morris and Egerton are dead, that Egerton was the surviving partner, and that the executors of his last will and testament are Archibald Stirling and Franklin Anderson, and that both said complainants died before the sale was made by the trustee, and that both defendants are dead. That the property sold was disposed of largely below its value. He therefore prays, that the sale reported may not be ratified, and that the decree may be entered satisfied, and that the executors of said surviving partner may answer the allegations of this petition, and he will pray.

And on the same day Ann Clapp, executrix of the said Aaron [**5]  Clapp, appeared and suggested the death of Aaron Clapp, and filed her letters testamentary as executrix aforesaid.

The cause thus standing, on the 29th March 1837, the court (MAGRUDER, A. J.) passed the following order:

In the matter of the exceptions to the ratification of the sale, reported by the trustee on the 19th March 1834--exceptions filed by John Glenn, permanent trustee of Michael Dorsey, set down for hearing on the 23rd March 1837, and argued same day--I do not think that either of the exceptions can be sustained, nor that there is any thing in the answer of the trustee filed 23rd March 1837, nor in the petition of John Glenn, permanent trustee of M. Dorsey, filed same day, to interpose any obstacle to the ratification of the sale. The rights of claimants to the fund in court, are subject to be enquired into before the auditor, and proper parties may be made at any time, for the purpose of settling those rights. In relation to the fact set forth in the petition of the permanent trustee of Dorsey, that the mortgage debt due to Morris & Egerton has been fully paid, and that the decree ought, therefore, to be entered satisfied--I am of opinion that if there were an [**6]  answer to the petition admitting that fact, it could not avail to prevent a ratification of the sale, because I consider the decree to have passed as well for the benefit of Clapp, the first mortgagee, as for that of the complainants, looking at the statements to that effect set forth in the bill of complaint, and in the answer of Clapp. It is therefore, this 29th day of March 1837, ordered by the court, that the said exceptions be, and the same are, hereby overruled. No order for the final ratification of the sale can be made at this time, because it does not appear from the papers, or from any of the proceedings, that there has been publication of the order of ratification nisi, passed on the 19th March 1834, in a newspaper, as thereby prescribed. When that is shewn to have been done, by the filing of the certificate of the printer, in the usual way, a final order will be made.

And afterwards, on the twenty-third day of September 1837, the said Robert Purviance, Jr., trustee as aforesaid, filed in said cause the proof of the order nisi, ratifying the sale made by him in 1834, and the court (MAGRUDER and PURVIANCE, A. J.) passed an order finally ratifying the sale made by the [**7]  trustee. Glenn, the trustee of Dorsey, appealed from this order, and also from the order dismissing his petition.  

DISPOSITION:
ORDERS REVERSED AND CAUSE REMANDED.  

HEADNOTES:

It is a clear proposition, that a suit in equity abates by the death of any of the parties materially interested, and the insolvency or bankruptcy of a plaintiff or defendant makes it necessary, that the trustee, or assignee, should be brought before the court.

When the complainants in a bill for a sale die, before the sale, but after a decree, the proceedings should be revived, before any thing further is done.

An admission or agreement, by the surviving parties to the suit, that the interest of the deceased party has been extinguished or satisfied, will not dispense with the necessity of bringing his representatives before the court.

When a suit has abated after decree, it is settled, that the defendants, or either of them, where more than one, may file a bill and revive and prosecute the decree.

The abatement of a suit, before the sale, when relied on as an exception, and made before final ratification, is a sufficient reason for setting aside the sale.

After however setting aside a sale upon that ground, as formally irregular, the court may revive the terms of the contract with the same purchaser, if advantageous to the parties concerned, who would then be in court, prepared to protect their interests.

It is no objection to a sale made under a decree, that a bill was depending at the time to vacate the decree, where the grounds for impeaching it are not stated, and it does not appear that any order was passed to restrain the proceedings of the trustee.

The court will not set aside a sale, in all other respects unexceptionable, for inadequacy of price, unless so grossly inadequate, as to indicate a want of reasonable judgment and discretion in the trustee.

But if any other just cause appears to doubt the propriety of the sale, inadequacy of price would be a consideration very proper to be viewed in connexion with it.

That a cloud rested upon the title at the time of the sale, which might probably with some exertion be removed, is a ground for ordering a second sale.

If, after distribution of the purchase money, the purchaser should be evicted by a superior title, he must submit to the loss; but if while the fund is yet in court, the purchaser is disturbed in his possession, or exposed to be disturbed, by one having a clear title to the estate, which was unknown to the purchaser at the time of the sale, the sale should be rescinded, and the money restored.  

COUNSEL:
By McMAHON for the appellant, and

By T. S. ALEXANDER for the appellee.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*5]  CHAMBERS, J., delivered the opinion of the court.
It is a clear proposition, that a suit in equity abates by the death of any of the parties materially interested. The books of practice also inform us, that the insolvency or bankruptcy of a plaintiff or defendant, renders the suit so far defective, 

 [*6]  that the trustee, or assignee, must be brought before the court.
That Morris and Egerton, the complainants in the bill, died before the sale by the trustee, is expressly alleged in the petition filed by the appellant; when the defendants died, is not stated by the petition, although it states the fact of their death. There is nothing in the record to show the period at which Michael Dorsey, one of the defendants, became insolvent, but it does appear that the sale was made by the trustee on the 13th March 1834, and that on the [**8]  28th of the same month, the trustee of said insolvent appeared in court and filed exceptions to the sale.
It is admitted in the argument, that the proceedings should have been revived before the sale, but it is alleged, that the abatement was only technical, inasmuch as the claim of Morris & Egerton had been discharged, and that the subsequent proceedings ought not to be set aside now for this cause. The evidence of this payment to Morris & Egerton is to be found alone in the petition of the appellant, and it is said by counsel on both sides, that as the court below has acted upon the petition, assuming its facts, because it has not allowed the opportunity to sustain them by proof, we are to receive this evidence as conclusive.
To whatever extent this may be the case, so far as regards the respective interests of the parties now before the court, we cannot admit that the rights of Morris & Egerton's representatives are concluded by allegations made in the cause after they had ceased to be parties to it. It is precisely upon the ground, that great injustice will result by permitting the rights of absent and ignorant claimants to be finally decided by the evidence of other [**9]  and often interested persons, that the rules have been adopted, regulating the abatement of causes, and requiring proper parties to be brought before the court. The first principles of justice demand that, before the court shall finally and conclusively adjudicate upon the rights of the representatives of a deceased party, an opportunity shall be afforded them to vindicate those rights, quite as much as they demand, that all other persons shall have the opportunity to 

 [*7]  defend their property before its title is decided upon by the court. The necessity then of affording to the legal representatives of Morris & Egerton an opportunity to contest this question of payment, illustrates the propriety of bringing them into court.
The claim of the appellant in this case, to the surplus of sale, after discharging whatever may be due on Clapp's mortgage, depends upon the payment or non-payment of the Morris & Egerton debt: that is to say, these two parties are adverse claimants, so far as we have any information in the cause, derived from Morris & Egerton, or any one authorised to speak for them. The interest of A. Clapp's representatives, is not in the smallest degree [**10]  affected by a confession, that the debt of Morris & Egerton is paid. Can we then, in this condition of the case, assume the fact of payment to Morris & Egerton as established by the assertion of the adverse party, admitted by a stranger, who has no interest, (unless indeed it be to expedite the payment of his own debt by the admission,) because it shows the objection to be merely technical, and thereby avoids the delay of making new parties?
We cannot consider the payment to Morris & Egerton, so far proved, as to consider it a mere matter of form, to bring in their representatives, to admit or deny it. Every party must be considered a material party, whose interest, as claimed by him on the record, is material, so far as respects the question of abatement.
It is settled law, that where a suit has abated, after decree, the defendants (or either of them, where more than one,) may file a bill, and revive and prosecute the decree; and it is urged hence, that the failure to file such a bill by the appellant, has been the occasion of all the difficulty complained of in the cause, and is a sufficient reason to refuse his application to reverse the proceedings below. While we [**11]  admit the right of the appellant, as the proper representative of Michael Dorsey, to file a bill of revivor, we are by no means prepared to say he was compelled to do so. He came into court under the invitation impliedly, if not expressly given, by the order of 

 [*8]  confirmation nisi, and objected to the ratification. His petition may be regarded in the same character as a further exception to the sale. This was sufficient to put the court in possession of the fact. After a suggestion of the death of a material party made by one who is competent to make such suggestion, the court cannot proceed in the cause until satisfied the suggestion is unfounded in fact, except only to take the necessary steps to bring proper parties before them.
If, however, there was a necessity imposed upon a defendant, to revive the proceedings abated by a plaintiff's death, in any case, it would be a difficult matter to sustain the pretensions of the present appellee in this respect. Her intestate was a defendant also. She too had the same privilege to revive the proceedings. She demands further proceedings, and the confirmation of the sale, and payment of her claim. So her counsel insists before [**12]  us, she is entitled to demand; and this for the reason that the appellant, who represents a co-defendant, and who only claims that all proceedings shall be arrested till proper parties are made, will not file a bill to revive, and thereby make it necessary for her to do so.
These considerations lead us to the result, that the court below should have suspended its proceedings upon the suggestion of the death of the complainants in the cause, until new parties were made, and their subsequent orders must be reversed.
The making of new parties will necessarily bring before the court the questions affecting the sale, and whether it must be set aside, either on account of the previous abatement of the suit by the death of the complainant, or for the reasons alleged in the exceptions first filed.
We think the abatement of the suit before the sale, where that circumstance is relied on as an exception, and made before final ratification, is a sufficient reason for setting aside the sale. But it is to be considered, that the true character of such a sale is, that it is a transaction between the court and the purchaser: that a private sale may be made, as well as a public sale, if the court [**13]  deem it advantageous, and that after 

 [*9]  setting aside the sale as formally irregular, the court might revive the terms of the contract with the same purchaser, if no other objections existed, and those terms were deemed advantageous to the parties who are thus in court, prepared to protect their interests in this, as in every other respect.
Without intimating, therefore, even a conjecture, as to the course which in this case may be pursued, it is apparent that a contingency may occur, in which it may be necessary that our views be expressed in regard to the other objections taken to this sale.
The first exception, to wit, that a bill was pending at the time of the sale to vacate the decree, and the deed upon which it was founded, has not been relied on. The fact that such a bill was pending, without disclosing the grounds upon which it proceeds, and without stating that it had resulted in any order to restrain proceedings under the decree, could furnish no reason for setting aside the sale.
The second exception, is the inadequacy of price. The trustee was called upon to answer this objection, and says he considers the property certainly worth more than $ 490, the [**14]  sum at which it was sold, but less than $ 900, the value alleged by the petition, and the trustee alleges that he is not prepared to speak positively of its value. The court will not set aside a sale in all other respects unexceptionable, for inadequacy of price, unless the sum reported by the trustee, is so grossly inadequate as to indicate a want of reasonable judgment and discretion in the trustee. But where any other just cause appears to doubt the propriety of the sale, it is a consideration very proper to be viewed in connexion with it, that the sale has been also made at a reduced price. The answer of the trustee in this case discloses, we think, sufficient grounds, when taken in connexion with the fact, that the sum bid is confessedly below the real value of the property, to justify the court below in ordering another sale. The title was evidently clouded, "an impression prevailed among the company that there would be a difficulty," and the adjacent lot "absolutely essential to the comfortable enjoyment" of the lot sold, was involved in 

 [*10]  still more doubt, as to its title, in consequence of an alleged judgment and execution, which the trustee might probably with some [**15]  little exertion be able to explain.
It is true, as alleged in the argument, that in chancery sales in this State, there is no examination into the title by an officer of the court, as in England, and if after distribution of the purchase money, the purchaser should be evicted by a superior title, he must submit to the loss, and has no redress; but if while the fund is yet in court, the purchaser is disturbed in his possession, or exposed to be so disturbed, by one having a clear title to the estate, which title was entirely unknown to the purchaser at the time of sale, we think the plain principles of justice require the sale to be rescinded, and the purchase money to be restored. As between the parties to whom the proceeds of sale are ultimately to be paid, and the purchaser, the transaction is so far in fieri, that a total failure of consideration, should prevent them from receiving the stipulated price.
The court should not therefore in this case be restrained from setting aside the sale, from any apprehension, that a defect in the title might be exposed at another sale, and a less sum be realized. The trustee should use reasonable efforts to disembarrass the title of any [**16]  supposed difficulty. If the title is not good, fair dealing requires it to be known, if the knowledge of it is conveniently to be acquired; if it be good, the parties entitled ought to receive, and the purchaser to pay a just equivalent; and bidders will then be placed on more equal terms, as well those who may have had the means to investigate the title fully, as those who have not.
Entertaining the opinion, that the court below was wrong in dismissing the petition, which suggested the death of the complainant, and in proceeding to ratify the sale, we must reverse the orders passed in respect thereto; and remand the cause for such further proceedings, as the parties may pursue, consistently with the foregoing views. The costs in this court to be paid by the appellee.
ORDERS REVERSED AND CAUSE REMANDED.  

19 of 47 DOCUMENTS 

HENRY S. SANDERSON vs. RICHARD E. ALCOCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 164; 1837 Md. LEXIS 24 

December, 1837, Decided 

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

The appellee in this cause obtained judgment against one Benjamin Brady, and on the 11th May, 1836, sued out a fi. fa. thereon, returnable to September term, 1836. The sheriff not returning the writ, was laid under a rule to return it, on or before the 10th September. On the 17th October, the sheriff (the appellant) having still failed to return the writ, the plaintiff (now appellee) moved for a judgment against him, under the act of 1794, ch. 54, sec. 1.

The appellant resisted the judgment upon the following grounds:

1. Because, whether the plaintiff be entitled to the proceeds of the execution against Brady, is a question now depending in this court.

2. Because a motion is still pending to quash the execution in this cause.

3. Because the defendant offered, if the plaintiff would indemnify the said Sanderson, to pay him over the proceeds of sale.

4. Because the said Sanderson is sued for taking said goods, and a bill in equity is also filed against him.

The appellant then filed his petition in Baltimore county court, admitting the issue and levy of the execution--that the proceeds of the goods were subject to [**2]  the order of the court that suits at law, and in equity had been brought against him by various parties for the same proceeds, and he prayed to be allowed his expenses and counsel fees.

At May term, 1837, the sheriff informed the court that other suits had been brought against him by Erskine and Chapman for the whole proceeds, and then moved the court for a rule on the plaintiff, to show cause why the motion for a judgment against the sheriff should not be extended until the next term, suggesting the reasons before relied on and the further one, that the property was under mortgage at the time of the levy; and produced the mortgage.

The appellee then moved the court for a judgment against the sheriff under the act of 1797, ch. 43, and filed the answer of Sanderson to one of the equity causes depending against him, showing the amount he had received under the fi. fa. against Brady, and it was now admitted that the mortgage on Brady's goods was satisfied. The proceedings in the several causes against Sanderson were agreed to be received as evidence upon the plaintiff's motion for a judgment.

At October term, 1837, Baltimore county court (Archer, Ch. J. Magruder and Purviance,  [**3]  J's) decided, that the motion for a judgment in this case against the sheriff be overruled, and also the motion to enlarge the time for the sheriff to make return of the fi. fa. in this case. But it appearing to the court from the evidence in the cause, that the sheriff has made on the fi. fa. the sum of $ 8,158.95, being the net proceeds admitted by the sheriff to be due, after deducting the amount of the judgment obtained by the mortgagees of Brady's goods and costs, which amount is by consent of the plaintiff's counsel deducted. It is ordered by the court this 4th October, 1837, that the late sheriff forthwith on the service of this order on him, bring into court the amount thus made, and when brought in, the court will on application stay the money in court, until a bond of indemnity shall be tendered to the sheriff, to be approved of by the court, or one of the judges thereof.

From which order the said Henry S. Sanderson, late sheriff, appealed.

At this term the appellee moved to dismiss the appeal.  

DISPOSITION:
APPEAL DISMISSED.  

HEADNOTES:

An appeal will not lie by the sheriff, from an order of the county court, directing him to bring into court money which he has received upon an execution.  

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

OPINION:

 [*166]  JAMES M. NICHOLSON, for the appellee,  [**4]  moved,
For dismissal of the appeal, on the ground that the subject of the decision below, was not of that nature from which an appeal lies.
The appellant, as sheriff of Baltimore county, had served and levied an execution of fi. fa. issued by the appellee on a judgment in his favour, but had made no return. The appellee moved for a judgment against the appellant (the sheriff) for having failed to make a return, and the appellant moved for an enlargement of the time to make his return. The court refused both motions, but ordered the appellant to 

 [*167]  bring the proceeds of the executions into court to abide their further disposition. The appellant declined obeying this order, and took an appeal; and the question now presented is, whether an appeal lies from such a decision. In Jessop vs. Brown, 2 G. & J. 404, a motion was made (apparently in the court of Appeals) by a sheriff for the enlargement of a rule on him to make a return to a writ of fi. fa. and the court there say, that there is no general rule in such cases, but that each must depend upon its own circumstances. Does not this necessarily imply, that the decision in such cases is wholly in [**5]  the discretion of the court before whom the motion is made; that being the only tribunal before whom all the circumstances can fully and fairly be brought. If so, no appeal can be taken from the decision of the court below. In Wall vs. Wall, 2 H. & G. 79, the court say that where the subject decided by the inferior court is left by law to their discretion, as in the refusal to grant a new trial, it has been adjudged, that a writ of error will not lie. But apart from the authority of Jessop vs. Brown, it stands to reason, that a motion by the sheriff for the enlargement of his time in which to make a return to a writ, is a motion to the favour and discretion of the court. The law is imperative, that he shall make a return within a specified time; and our acts of assembly direct, that judgment shall be entered up against him if he fails to do so. There is no express law authorizing him to obtain from the court an enlargement of that time. The interference of the court in his behalf is matter of practice, and not of positive law, and the practice originated from the fact that as the sheriff was the officer of the court, bound to obey its decrees, is, if at any time,  [**6]  peculiar hardship would be experienced by his carrying out those decrees, it was allowed as a favour for him to ask the interposition of this court, and either compel an indemnity bond to be given, or exempt him from further action. This power, the discretion of the court is appealed to. Their own officer seeks for their protection from the rigour of the law, and if in their opinion they ought to interfere 

 [*168]  they are competent to do so. But if they think their interference is not necessary, there is no law enabling the sheriff to compel their interference by appeal or in any other way. In the present instance the sheriff, as was proved beyond doubt, (his own admissions,) had sold property under execution and was in possession of the proceeds. He was ruled to make a return of the writ, which he failed to do, but moved the court for an enlargement of his time, assigning for reason that the property sold was claimed by third parties who had sued him. The court thought that under all the circumstances that he was entitled to an indemnity bond, but not the possession of the money which he had been keeping for a twelve month and upwards without interest. They accordingly order [**7]  him to bring the money into court to be invested, unless the plaintiff chose to indemnify the sheriff. The sheriff would not abide the decision, but by filing an appeal bond, retains possession of the money. The question is will the appeal lie? If the interference of the court below was a matter which he could demand as a right, then he can appeal from their decision. If their interference is a mere favour to be exercised by the court in their discretion according to the peculiar circumstances of each case, then their determination is final, and the sheriff must submit without delay.
R. JOHNSON, for the appellant.
The only question now is whether an appeal will lie from the order. It is a command to the sheriff to bring in the money, and may seriously injure him. The money is to be brought into court. But to what situation is the sheriff reduced? Here are four claimants for the same fund. None can tell who has the right. How is he to defend himself? May he not rightfully keep the funds to secure himself?
An appeal has been sustained by a defendant, ordered to bring money in by the court of Chancery? Thompson vs. M'Kim, et al, 6 H. & J. 302. This order settles nothing.  [**8]  The appeal is taken, and money retained by the 

 [*169]  sheriff because of its consequence to him. There is no distinction between orders at law and in equity. And the appeal is allowed, not because the order is final, but because it professes to be final, and may do great practical injustice, if erroneous.
APPEAL DISMISSED.  

20 of 47 DOCUMENTS 

WILLIAM LAMAR VS. JONATHAN MANRO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 50; 1838 Md. LEXIS 12 

December, 1838, Decided 

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

THIS was an action of assumpsit, commenced on the 16th October, 1835, by the appellee against the appellant. The declaration contains five counts.

1st count. That on the 29th April, 1816, the said Lamar, by his bill obligatory bearing date, &c. ten months after date promised and obliged himself to pay to a certain Benoni S. Lamar the sum of $ 350, and after several specific payments in part satisfaction of said bill, and on the 1st January, 1822, the said B. S. Lamar, by a written order on said bill endorsed, and by him subscribed, ordered and directed the said defendant to pay to the said plaintiff the full amount unsatisfied by said defendant, and delivered the said bill, with such order thereon, to said plaintiff--of all which the said defendant had notice--that after some other payments in part satisfaction of said bill, a certain statement, in writing, in the nature of a calculation of the amount due and unsatisfied upon said bill was presented to the said defendant, and by him carefully overlooked, examined and understood, and by which there was due $ 182 10; the said defendant then admitted the said statement to be just and correct,  [**2]  but then insisted that he was justly entitled to a further credit upon the said last mentioned bill, in part reduction of the same, to the amount of the proceeds of the sales of a certain quantity of tobacco before that time sold by the said defendant, and which proceeds had been received by the said plaintiff on account of, and as part payment of the said last mentioned bill. But the said defendant in consideration of the premises, and in further consideration that the said plaintiff assented and agreed, at the special instance and request of the said defendant, to come to a fair and final settlement with the said defendant, touching and concerning the said debt by the said last mentioned bill testified, and of all payments so as aforesaid made in part satisfaction and reduction of the same, and touching and concerning the net proceeds aforesaid of the above mentioned sales of tobacco, &c. afterwards, on, &c. at &c. undertook, and then and there faithfully promised, and upon himself assumed to come to a fair settlement with the said plaintiff, whenever he, the said defendant, should be thereunto afterwards requested, touching and concerning the said debt, by the said last mentioned [**3]  bill obligatory testified, and of all payments so as aforesaid made in part satisfaction, and in reduction of the same, and touching and concerning the amount of the net proceeds aforesaid, of the aforesaid sales of tobacco, so as aforesaid asserted to have been received by the said plaintiff as an additional and further credit in part deduction thereof, and upon ascertainment of the balance due upon and on account of said last mentioned bill obligatory, upon such settlement as aforesaid, to pay such balance to the plaintiff, when the said defendant should be thereunto next afterwards requested, and the said plaintiff in fact further saith, that upon the making of such fair settlement as aforesaid, there would be found to be due and owing upon and on account of said last mentioned bill obligatory, and the said plaintiff expressly avers, that there is still due and owing, and unsatisfied, after all payments made as aforesaid, and after crediting the net proceeds of the sales of tobacco, so as aforesaid asserted to have been received by the said plaintiff, and over and above all credits, and over and above all matters of set-off and discount, a large sum of money, to wit, the sum of [**4]  five hundred dollars current money, to wit, at Frederick county aforesaid, and the said plaintiff avers that from the time of the making of the said promise of the said defendant herein before last mentioned, and thenceforth, hitherto he the said plaintiff hath been ready and willing, and prepared at all times, and was then and there well known to the said defendant, and hath in fact from time to time, and ofttimes since the making of the said last mentioned promise and undertaking of the said defendant, last before mentioned, and before the commencement of this suit, invited, requested and solicited the said defendant to come to a fair settlement with him the said plaintiff as aforesaid, and to pay to him the said plaintiff, such balance as upon such fair settlement should be found to be due, to wit, at Frederick county aforesaid. But the said defendant, not regarding his said promise and undertaking, hath hitherto wholly omitted, neglected and refused to come to such settlement with the said plaintiff, and still doth neglect and refuse to come to such settlement with the plaintiff, to wit, at Frederick county aforesaid, and the said defendant in like manner hath refused, although [**5]  thereunto often requested, and still doth refuse, to pay to the said plaintiff the balance due and owing upon and on account of said bill obligatory, to wit, at Frederick county aforesaid.

2d count. This count alleged that the plaintiff in this action was the equitable holder of the said single bill--that it was barred by the statute of limitations--that certain payments had been made thereon, and counted on an express promise of the defendant to pay the plaintiff the balance due upon said single bill.

3d count. For matters and things properly chargeable in account, &c.

4th count. Was the general count for work and labour, &c. and the money counts, &c.

5th count. Was upon an accounting together.

The defendant pleaded non-assumpsit, on which issue was joined.

1st EXCEPTION.--At the trial, the plaintiff proved by Thomas Lamar, a competent witness, that Drucilla Lamar, the subscribing witness to the single bill herein after set forth, is the wife of the defendant, and the signature, "William Lamar," as the obligor in the said single bill, is in the hand-writing of the defendant. The same witness proved that the obligee mentioned in the said single bill, is [**6]  the brother of the defendant, and lives in the Western country. The plaintiff proved further by Jonathan Manro, a competent witness, that the writing on the back of the said single bill in these words following:

"BALTIMORE, June 18, 1822.--Rec'd of William Lamar, fifty dollars of the within note.     N. A. MANRO," is in the hand-writing of the said Nathan A. Manro; that the said Nathan A. Manro is dead, and that he was the clerk of the plaintiff, and transacted his business and cash concerns. The plaintiff further proved by Perry Hilliary, a competent witness, that he called on the defendant, at the instance of the plaintiff, in April or May, 1833, and presented to him the following statement:

________________________________________________________________________________

William Lamar, in account with Jonathan Manro.	
To note dated 29th June, 1816, at 10 months,	$ 350 00	
Interest from 29th April, 1817, to 30th March, 1819,	40 31	
	
	$ 390 31	
By cash paid on note, 30th March, 1819,	164 00	
	
	$ 236 31	
Interest from 30th March, 1819, to 18th June, 1822,	
  is 3 years 2 months and 19 days,	45 65	
	
	$ 281 96	
By cash, 18th June, 1822, received,	50 00	
	
	$ 231 96	
Interest from 18th June, 1822, to 25th May, 1824,	
  is 1 year 11 months and 24 days,	27 60	
	
	259 56	
May 25, 1824. By cash received this day,	40 00	
	
	$ 219 56	
Interest from 25th May, 1824, to 12th Sept. 1826,	
  is 2 years 3 months and 18 days,	30 22	
	
	$ 249 78	
By cash, 12th September, 1826,	50 00	
	
	$ 199 78	
To 3 years interest from 12th September, 1826, to	
  September, 1829,	36 00	
	
	$ 235 78	
By cash for tobacco, on the 12th September, 1829,	92 23	
	
	$ 143 55	
Interest from 12th September, 1829, to 12th Sep-	
  tember, 1833, is 4 years,	34 32	
	
Balance due J. Manroe,	$ 177 87	
2 months interest to 12th November, 1833,	1 88	
	
12th February, 1834, amount of $ 181 02.	$ 179 75	
________________________________________________________________________________

 [**7]  

And asked the defendant for the balance of the money which appeared to be due on the said statement, and said that he had promised the plaintiff to remit it to him by mail. The defendant took the paper, and on looking over it, said he did not think he owed so much on the note, as appeared on the said paper. The defendant said that he had sent a crop of tobacco to Baltimore, for the purpose of paying upon that note, and he did not think that he had been allowed the credit. The defendant said further, that upon a fair statement, he would pay whatever was justly due; but said it was not convenient for him to pay the money at that time, and further added that he did not think there was as much due as appeared upon the statement. The same witness proved that the defendant admitted there was a balance due on the note, and that the same ought to have been paid before, and that the plaintiff had been indulgent to him. Witness understood defendant to further say, that the plaintiff held the said note, and that it had been assigned by his the defendant's said brother, to him the said plaintiff. The same witness proved upon cross examination, that the defendant at the same time, and in the [**8]  same conversation, said he had placed fifty dollars in his brother's hands, to be paid to Manro, and credited on the note, but said that upon the statement above mentioned, it appeared that he, defendant, had not received the said last mentioned credit; defendant did not say whether the said fifty dollars had been placed in his brother's hands, before the said note was assigned, or otherwise; but said it was to be paid to the plaintiff, and credited on the note. The plaintiff then offered the said single bill in evidence to the jury.

"Ten months after date I promise and oblige myself, my heirs, executors or administrators, to pay or cause to be paid unto Ben. S. Lamar, his heirs or assigns, the just and full sum of three hundred and fifty dollars, for value received, as witness my hand and seal the 29th day of June, 1816.

$ 350.     WILLIAM LAMAR. [Seal.]

Witness--Drucilla Lamar."

Which is thus endorsed--"March 30, 1819. Received of William Lamar, one hundred and forty dollars of the within note, by me.     BEN. S. LAMAR."

"April 17, 1819. Also credit to William Lamar, for 24 dollars.

BEN. S. LAMAR."

"BALTIMORE, June 18, 1822.

"Received [**9]  of William Lamar, fifty dollars of the within note.     N. A. MANRO."

"Pay Jonathan Manro, or order.    BEN. S. LAMAR."

To the admission of which said last mentioned evidence, the defendant by his counsel objected on two grounds.

1. Because the supposed assignment of the said single bill, by the obligee to the plaintiff, ought to be proved, either by the assignor, or by proof of his hand-writing as assignor.

2. Because the said single bill is above twelve years standing, and is not admissible in evidence against the defendant, under the act of assembly of 1715, chapter 23.

But the court (A. Shriver and T. Buchanan, A. J.) overruled both of the said objections, and admitted the said single bill to be read in evidence, to the jury.

The defendant excepted.

2d EXCEPTION. The plaintiff then read in evidence the following affidavit, taken by consent, and admitted to be read as if the affiant were in open court to testify to the same.

Samuel H. Whittington deposes, that the paper marked A, is in his hand-writing, and contains a true and correct statement of the weight and prices of two hogsheads of tobacco, sold for Mr. William Lamar, of Frederick [**10]  county, by Messrs. Starr & McCormick, of Baltimore, in the month of July, 1829--that the deponent then lived with said Messrs. Starr & McCormick as a clerk--that he does not now recollect whether Mr. Lamar brought the tobacco, or brought samples in the first instance; but recollects very well that he was there about the said tobacco--that it was sold by Messrs. Starr & McCormick, as commission merchants, for said William Lamar, and that said paper A, contains an accurate statement of the quantity of said tobacco, and the price; and that the net proceeds was $ 92 23, and no more--that said net proceeds were paid over to Jonathan Manro, of the city of Baltimore, in virtue of the order dated 25th July, 1829, contained in the paper marked B, purporting to be signed by William Lamar--that he does not know the hand-writing of said Lamar--that the receipt below said order, dated 29th July, 1829, and signed by said Jonathan Manro, was signed by said Manro on receipt of said sum of $ 92 23, and which was paid to him in virtue of said aforesaid order--that this deponent continued to live with said Starr & McCormick, until March, 1831, and that said Messrs. Starr & McCormick at no time sold any [**11]  other tobacco for said Lamar; nor does this deponent know that he, the said Lamar, had any other tobacco at any time in the city for sale.

And thereupon, and also upon the whole of the evidence stated in the first bill of exceptions, which is to be taken and considered as if stated in this bill of exceptions, the defendant by his counsel prayed the opinion of the court, and its instruction to the jury, that if they shall believe from the evidence, that the defendant did not make any promise to pay any balance on the said single bill, other than a promise that upon a fair settlement he would pay whatever balance was justly due thereon, then the plaintiff is not entitled to recover, unless he shews that a settlement was made between himself and the defendant in relation thereto, and a balance remaining due upon such settlement, or unless he shows at least an offer on his part to make a settlement, and thereby to ascertain the balance due on said single bill. But the court (Schriver and T. Buchanan. A. J.) refused to grant the said prayer or to give the said instruction to the jury.

The defendant excepted.

3d EXCEPTION.--The defendant by his counsel then prayed the opinion [**12]  of the court, and its instruction to the jury, upon the whole of the evidence stated in the preceding bills of exceptions, which is to be taken and considered as if stated in this bill of exceptions, that the promise as proved in this case, is not a sufficient promise to enable the plaintiff to recover; and that he cannot be permitted to resort to other evidence than the mere promise itself. But the court refused to grant the said prayer, or to give the said instruction to the jury.

The defendant excepted.

4th EXCEPTION.--The defendant by his counsel then prayed the opinion of the court, and its instruction to the jury, that upon the whole of the evidence stated in the preceding bills of exceptions, which is to be taken and considered as if stated in this bill of exceptions, if they shall believe that the defendant at the time of the promise as aforesaid, or in any part of the conversation to which Perry Hilliary testified, did not admit or acknowledge a specific or particular, or what balance remained unpaid on the said single bill, then the plaintiff is only entitled to a verdict for nominal damages. But the court refused to grant the said prayer, or to give the said instruction,  [**13]  and told the jury that the plaintiff was entitled to recover whatever balance he could show to be due.

The defendant excepted.

The jury found a verdict for the plaintiff, and the defendant prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The object of the legislature in passing the act of limitations of 1715, ch. 23, was not in all cases to prohibit the giving in evidence of a bill or bond, where it might be above 12 years standing, or in any case where it was not itself the foundation of the action.

When an express promise is proved, to pay the balance, which might appear to be due upon a single bill, the bill itself, though over 12 years standing, may be offered in evidence, as furnishing the inducement to, or legal basis of the promise.

And when the action is brought in the name of the assignee of the obligee in the bill, proof of the assignment is not necessary, when the defendant has treated with, and recognized the assignee as the holder.

The jury from such conduct may infer, that the assignment was in the hand writing of the obligee.

When a party says, upon being called on to pay a debt, give me all the credits to which I am entitled and I will pay the balance, the plaintiff need only at the trial, show what is justly due. A preliminary settlement of the claim is not necessary to a recovery. There is no difference between the right of the obligee in a bond, and the assignee, though the latter may have only an equitable title, to recover upon the promise of the obligor to pay the money.

When the promise to pay the bill or bond is sufficiently proved, whatever aids and supports it, and tends to shew what is justly due, is as admissible as the bill or bond itself.  

COUNSEL:
PALMER, for the appellant.

1. Upon the first bill of exceptions, contended that the admissibility of the evidence depended on the construction of the act of 1715, ch. 23. It is a question peculiar to the Maryland law. The first clauses of the statute relate to lapse of time producing a loss of the remedy. The 6th section, however, destroys the right. The bond is no longer to be admitted in evidence. If the bond were in evidence, a debt is thereby admitted, and a good foundation for a promise. If the case rested on admissions, it would present one question, and the character of the admission would depend on the character of the proof. The admission of the bond might prejudice the defendant. It is not admissible without violating the statute, but it is said to be admissible as inducement to a promise.

2. This action is not sustainable, because not founded on a legal consideration. A moral foundation will not suffice. Manro,  [**14]  the plaintiff, has no legal interest in the note. He has a mere equity, and could never have sustained a suit in his own name; and though on a new promise of the obligor to the obligee, who unites in himself the legal and moral obligation, may sue, yet here, as this union exists not, the action cannot be maintained. The act of 1829, ch. 51, demands a written assignment, and a blank endorsement does not assign a specialty. 2 Kent, 465. 7 Cox Rep. 57. Wennall vs. Adney, 3 Boss. and Pull. 249, note (a.) Edwards and Wife vs. Davis, 16 John. Rep. 281. Pennington vs. Gittings, 2 Gill and John. 208. Lee vs. Muggeridge, 5 Taunt. 36.

The cases of bankruptcy and infancy, as furnishing sufficient consideration for an assumpsit, are founded on legal obligations.

A court of law will not sustain a claim, where there is an equitable remedy.

3. The undertaking in this case, if any, was accompanied with declarations repelling the idea of a promise. The defendant claimed credits not allowed. He declares that on a fair statement he will pay what is due. The statement there referred to was one to be made by defendant with the plaintiff. The prayer is hypothetical. The promise is qualified [**15]  and conditional. He did not promise to pay a specified sum. It is a promise to pay a balance not ascertained, and no offer ever made to ascertain it. There is nothing in the evidence to explain the disputed points, nor what was left open by the proof. Compliance with a conditional promise must be shown; but this was taken from the jury. Clementson vs. Williams, 8 Cranch, 72. 1 Chitt. Plea. 337, 8. Oliver vs. Gray, 1 Harr. and Gill, 204, 216. 2 Stark, new ed. 479. Bell vs. Morrison, et al, 1 Pet. S. C. Rep. 361. Bush vs. Barnard, 8 John. 408. Danforth vs. Culver, 11 John. 146.

The word statement means settlement between the parties.

4. It is a question for the court to decide whether the promise in this case, as proved, is a sufficient promise to enable the plaintiff to recover. Oliver vs. Gray, 1 Harr. and Gill, 219.

5. The evidence offered to the jury varies from and does not support the material allegations in the declaration. 1 Chitt. Plea. 335. Pittam vs. Foster, et al, 1 B. and Cres. 248. Tanner vs. Smart, 6 B. and Cres. 603.

6. There must be a promise to pay a specific sum, or the plaintiff can only recover nominal damages.

WM. SCHLEY, for the appellee.  [**16]  

A single bill, barred by limitations, is not excluded as evidence for every purpose. If the distinction contended for be true, the defendant under this special declaration, could have craved oyer and demurred, and need not have pleaded the statute in bar. It comes to that question, could the party have demurred on oyer? If not, then the bond is not absolutely worthless.

There are many cases in which this bond might come in as evidence--as in an indictment for forgery; as collateral proof; as evidence of a credit after the day. The true meaning of the statute is, that it shall not be evidence of the debt, so as to enable the holder to sue independently upon it; but the paper remains as a muniment of what was transacted.

The theory of the statute is to protect defendants who may have lost evidence of payment. 8 Law Lib. 3. 2 Stark. Evid. 772. The point relied on was an open one at the time the cause in 7 Harr. and John. was decided. But that case settles that the suit may be brought on a new promise, and the bond thus barred by lapse of time, offered in evidence. Indeed, the bond must be offered; the cause could not proceed without it.

On the second point, the general [**17]  doctrine is, that a moral consideration is sufficient to maintain an express promise, though not an implied promise. A moral obligation is sufficient for an express promise, though no legal obligation ever existed as in case of infancy. Wetzell vs. Bussard, 11 Wheat. 314.

A promise to an assignee of a specialty will maintain an assumpsit in his own name. Allston vs. Contee, 4 Harr. and John. 357. Barger vs. Collins, 7 Harr. and John. 213. There is no foundation for a new distinction arising out of the act of limitation. Owings vs. Owings, 1 Harr. and G. 490. The assignee has as much natural equity as the principal creditor.

On the third point, the insufficiency of the promise in the view now taken of it, was not raised below. There it was admitted to be a conditional promise to pay what was to be afterwards ascertained; now it is said no recovery can be had unless a statement was made. The difference is between settlement and statement. A settlement comprehends all transactions; a statement may be made by any body. The point raised below was not warranted by the proof. The promise was in effect to pay what was justly due.

The third exception was contrary to Veasy and [**18]  Bassett. It demands that the promise should be co-extensive with the cause of action as pleaded. 1 Law Lib. 135.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*61]  ARCHER, Judge, delivered the opinion of the court.
The plaintiff relying for recovery upon a promise, as he alleged, to pay the balance due upon a single bill, offered in evidence to sustain his action, and to furnish a proper foundation for the promise, a single bill, which bears date upwards of twelve years before the institution of the suit; and the admissibility of the single bill in evidence, is resisted, upon the ground that the act of limitations of 1715, ch. 23, sec. 6, declares that no bill, bond, &c. shall after twelve years be pleadable or admitted in evidence, except, &c.
The object of the legislature in the enactment of this section, was not to prohibit the giving in evidence of a bill or bond in every case where it might be above twelve years standing, or in any case where it was not itself the foundation of the action. Anterior to the act of assembly, no law was in existence limiting the time of bringing suits upon [**19]  single bills or bonds; but to defeat recoveries on ancient bonds, defendants were obliged to resort to a presumed payment from lapse of time.
But the legislature of 1715 deemed it necessary to prescribe a period of time within which suits should be instituted on bonds, as well as a period within which other actions should be brought. This is shown as well by the title of the act, which is an act for the limitation of actions, for avoiding suits at law, as by the preamble, which declares that, for as much as nothing can be more essential to the peace 

 [*62]  and tranquillity of this province, than the quieting of the estates of the inhabitants, and for the effecting of which no better measures can be taken than limitation of time for the commencing of such actions, &c. from the time of such action accruing: and such has been the uniform construction of the act, it having been considered necessary to plead the statute in defence to a bond, which would have been wholly unnecessary if the construction attempted to be placed upon the law conformed to the legislative intention. 4 Harr. and John. 541.
In this suit no action has been instituted on the single bill, but it is [**20]  an action of assumpsit, upon an express promise to pay whatever balance might appear to be due on the single bill; and the bill is introduced, not as the cause of action, but as an inducement to, as explanatory of, and as furnishing the legal basis of the promise; and in this point of view, we think the court were clearly right in receiving it as evidence.
Nor could it be objected that the evidence was inadmissible, without proof of the assignment by the assignor, or proof of his hand-writing, when the defendant had admitted that the plaintiff had held the note, and that it was assigned to him, and had recognized his ownership of the note, by making payments thereon to him, acknowledging his indulgence, and promising upon a fair statement of the balance, to pay what might be due thereon. These were all facts, from which the inference might legitimately be drawn, that the assignment or order endorsed thereon to pay to the plaintiff, was in the hand-writing of the obligee.
The prayer contained in the second bill of exceptions, supposes that a conditional promise had been made by the defendant to pay, and that the condition was, that he would pay whatever upon a fair settlement [**21]  should be justly found to be due; and on this construction of the evidence, the court are desired to say, that there could be no recovery unless the condition had been complied with, or there had been an offer on the part of the plaintiff, to make a settlement. But according 

 [*63]  to our views of the evidence, there is nothing to warrant the prayer. The evidence has no reference to a settlement between the parties, nor do we believe the promise conditional in the sense in which the appellant's counsel insist it is. The defendant did not think as much was due as the statement indicated; supposed he was entitled to other credits, and said upon a fair statement he would pay whatever was justly due; but that it was not at that time convenient for him to pay, which we consider in effect a promise to pay whatever was justly due on the bill. Nothing has been offered in evidence to impeach the statement in the first instance presented to the defendant, except his impressions; and to suppose that he meant as a condition of his payment, that the statement should be copied and again presented, would be imputing to the defendant a folly which he could not have intended, and which the general [**22]  tenor of the evidence would not justify. Give me all the credits to which I may be entitled, and I will pay you the balance, is in substance the evidence. The defendant does not say, they are to come to an agreement, or settlement, in relation to the credits, or that he should be the judge of the credits to which he was entitled; but that he would pay what was justly due, and when the plaintiff has shown at the trial what was justly due, he has done all that was necessary to entitle him to recover. We therefore consider there was no error in the second bill of exceptions.
From the preceding view which has been taken of this promise, it would be sufficient to sustain the action at the suit of the assignor of this bond, had the promise been made to him, because a good and valuable consideration once existed, which becoming inoperative by positive law, always furnishes a sufficient foundation for an express promise. This position is not denied; but it is insisted that as the assignee held only an equitable interest in this bill, and could maintain no suit in his own name, without the use of the name of the assignor, that an express promise made to him will not enable him to maintain [**23]  this action. Without meaning to determine 

 [*64]  whether since the act of 1829, ch. 51, he could or could not have sued in a court of law upon this bill in his own name, we must be permitted to say that the distinction attempted to be taken between express promises made to him who held the legal obligation, and to one who merely holds the equitable right to such an obligation, is unsupported either by reason or authority. The assignee takes the place of the assignor, and being invested with all his beneficial rights, is protected in them, both in courts of law and in equity, against all interferences by the assignor, prejudicial to his interests; and if the obligor was in conscience bound to pay the assignor, notwithstanding the legal impediment interposed by the statute of limitations, is he not equally bound to pay him who is equitably invested with all the rights of the assignor, and ought not the express promise to be as binding in the one case as the other? Had this been an open account assigned, an express promise to the assignee, with notice of the assignment, would have enabled the assignee to have recovered at law in his own name. 1 Harr. and John. 114. The antecedent [**24]  legal obligation furnishes the consideration for the promise, and having been assigned, the equitable holder may enforce the promise at law. The cases cited by the appellant's counsel, do not in our opinions maintain or countenance the distinction attempted to be taken; but the third bill of exceptions embraces another proposition equally untenable.
It is supposed in the prayer that the plaintiff could not be permitted to resort to other evidence than the promise. The prayer is very general in its terms, and if granted as an independent proposition, would have excluded all other evidence offered by the plaintiff, than the promise itself, which proposition is entirely inadmissible. The other evidence offered as inducement to the promise, we have seen, was admissible, and the promise being sufficient, whatever might aid and support it, or tend to show what was justly due on the bill, was just as competent as the bill itself. But this was offered, probably, as a proposition connected with that which had preceded it, and if we could have believed the promise had 

 [*65]  been insufficient to sustain the action, other evidence could not be resorted to, as the acknowledgment of the [**25]  defendant, that a balance was due on the bond, for that would not have sustained the action. 3 Gill and John. 491. We are therefore of opinion the court were right in their refusal to grant the defendant's prayer, as contained in the third exception.
It will follow from the preceding opinion, that the court were also right in refusing the defendant's prayer in the fourth exception, and agreeing with the county court in all the opinions by them expressed, we affirm the judgment.
JUDGMENT AFFIRMED.  

21 of 47 DOCUMENTS 

LUKE TIERNAN and others vs. PETER RESCANIERE'S adm'rs.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 217; 1838 Md. LEXIS 22 

December, 1838, Decided 

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

THE bill in this cause was filed on the 21st September, 1827, by Peter Rescaniere, against the appellants, alleging that on or about the 15th January, 1813, John Hanna, John Craig, Dutton Williams and Charles Malloy, became the purchasers of the brig Swallow; that in the year 1814, by the order of the United States authorities, she was sunk at the entrance of the harbour of Baltimore, for the defence of that port; that while sunken, on the 25th February, 1815, she was sold by her then owners, together with the benefit of all claim of her said owners against the United States for damage or otherwise, on account of said sinking, to the complainant, and a certain Matthew Pascal, for $ 6,200, which was paid--that Pascal is dead, that the vessel remained sunk until April, 1815, when she was raised; that in 1816, the congress of the United States appropriated a large sum of money for the indemnification of the owners of the vessels sunk at Baltimore, for damage sustained by said vessels, a due proportion of which was received by the said Rescaniere and Pascal; that in the year 1822, a further allowance was made by congress for the detention of said vessels from [**2]  the 15th February, 1815, to the time of their delivery to their respective owners, that there was adjudged to the owners of the brig Swallow, $ 1,003 75, that Rescaniere purchased the claim from Pascal, and demanded the whole sum from the United States, and expected to receive the same without any opposition from the former owners of the said brig--but that the said Hanna and Craig fraudulently designing to deprive the complainant of said compensation for detention in violation of the terms of sale, under colour of their original purchase, (in conjunction with the said Malloy and a certain Richard Williams, who with said Malloy, had since became the executor of Dutton Williams,) did fraudulently receive from the government of the United States, on the 18th July, 1822, the sum of money awarded for the detention of the said brig Swallow. That the United States finding the right of the said Hanna and Craig to be questioned, obtained from them a bond, with one Luke Kensted as surety, conditioned that they would refund to the United States, if it should be judicially decided, that the said Pascal and Rescaniere have the better right to the said sum of money; and the said Craig and his associates,  [**3]  or either of them, shall well and truly indemnify and save harmless the said United States from making the said payment. The bill then alleged that Hanna and Craig had ever since kept the money, and refused to admit complainant's claim, or make any such declaration or release of their right as would entitle the complainant to be paid his claim by the United States, and that by reason thereof the United States have hitherto failed to pay complainant his just demand, that he without decree in his behalf in the premises will be unable to secure to himself the equitable satisfaction due to him from the United States: that Craig is dead, and Luke Tiernan is his administrator. The bill then proceeded to pray, that the said Hanna, Malloy, R. Williams, and Tiernan as administrator of Craig, may be compelled to pay complainant the said sum of $ 1,003 75, with interest; that the defendants may be compelled to declare to or on behalf of the complainant, that he is entitled to said sum of money, or execute a release or renunciation of all claim thereto, in order to establish complainant's right to the satisfaction of the United States, and for general relief, &c.

The bond of Craig, Hanna [**4]  and Kenster, was exhibited with this bill, and contained the following recital and condition: Whereas, the sum of one thousand and three dollars and seventy-five cents, has been awarded under the act of congress, passed on the 26th day of April last, for the detention of the brig Swallow, of which John Craig, Charles Mallow, John Hanna and Dutton Williams were owners at the time the said brig was sunk by order of the government, at the mouth of Baltimore harbour, and so continued until the 25th day of February, in the year 1815, on which day she was sold at auction, and bought by Pascal and Rescaniere, and the said Craig, Malloy and Hanna, in their own right, and the said Malloy and Richard Williams, as administrators of the said Dutton Williams, claim the said sum of money on the ground of ownership during the period aforesaid, and the said Pascal and Rescaniere also claim the same on account of their subsequent ownership; and whereas, it seems to the United States, that the said sum of money ought in law to be paid to the said Craig, and those claiming with him, the same has therefore been paid to George Hay, as attorney in fact for the said Craig and his associates: now the condition [**5]  of the above obligation is such, that if it shall be judicially decided that the said Pascal and Rescaniere have the better right to the said sum of money, and the said Craig and his associates, or either of them, shall well and truly indemnify and save harmless the said United States, for making the payment aforesaid to the said Hay, then this obligation to be void, otherwise to remain in full force and virtue.

The answer of Luke Tiernan declared that he was a stranger to all the transactions mentioned in the bill, and left the complainant to his proof.

The answer of Charles Malloy denied that he had ever received any part of the sum claimed in the bill, and alleged that in 1822, he sold his claim for damages to John Hanna, one of the original purchasers of the brig. He also claimed the benefit of all defences of his co-defendants.

The answer of John Hanna showed that Pascal and Rescaniere, in 1824, had sued him, John Craig, Charles Malloy, and Richard Williams, at law, in Baltimore county court, for the same sum and claim; that a verdict and judgment was rendered against them in that action; that the claim was also barred by limitations; that nothing was sold to complainants [**6]  but the hull and appurtenances of the brig Swallow; that no claim for damages and detention was sold to complainants. The bond to the United States, the claim made upon the government for detention and the payment by the United States were admitted, but the claim of the complainants either at law or in equity was denied.

Upon this bill and answers the parties proceeded to take proof, and the Chancellor (BLAND) decreed that the complainant was justly entitled to have and receive the sum of $ 1,003 75, awarded under the act of congress of 26th April, 1822, for the detention of the brig Swallow, as the legal assignee and representative of the owners of the said vessel; which said sum of money having been erroneously paid over by the United States under misrepresentation made to them, to the attorney in fact of John Craig, John Hanna, Charles Malloy, and Richard Williams as administrator of Dutton Williams, deceased, and having passed from their hands, as in the proceedings mentioned, into the hands of others, in such manner, that these defendants are now liable for the payment thereof, it is therefore ordered that the defendants Luke Tiernan, executor of John Craig, William Hanna,  [**7]  administrator of John Hanna, deceased, forthwith pay or bring into this court, to be paid out of any assets now in their hands, or which may hereafter come into their hands, or into the hands of either of them, unto the plaintiff Peter H. Turner, as administrator of Peter Rescaniere, the sum of $ 1,003 75, with interest, and costs to be taxed by the register, and

From this decree the defendants in equity appealed.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

An act of congress awarded damages for the detention of a vessel sunk for the purpose of military defence, which were claimed by two distinct parties. The government paid one of them and took a bond, conditioned that if it should be judicially determined that the other claimant had a better right to the sum paid, that the party receiving the money should well and truly indemnify and save harmless the United States for making the said payment. Upon a bill filed to compel the defendant, who had received the money, to pay the complainant, or declare that he was entitled to the fund, or execute a release or remuneration of all claim and for general relief. It was held,

1. That the government might have filed a bill of interpleader between them to have their rights adjudicated.

2. That she could not after payment institute that proceeding, but must then rely upon her bond alone.

3. That to recover on the bond, she must show a judicial determination, that the claimants who were not paid had the better right to the fund.

4. That on the ground of substitution, the complainants' rights were not more extensive than those of the United States in a proceeding upon the bond.

5. If the United States had taken a bond to indemnify only, she might have gone into equity upon a good and valid claim on her for the money against the respondents, to compel them to pay the money, instead of the United States.

6. When such a determination of the right as the condition of the bond called for was had, the United States on a principle of quia timet, and might have obtained a decree for specific performance of the stipulation, by coercing the obligors to pay back the money by them received, to the person rightfully entitled.

7. Had the right in this case been judicially determined so that the United States could have claimed indemnity, the question of the right of substitution would have arisen; and if it were possible, to have proceeded by way of substitution, in a case where the government (who could not be made a party to a suit) is the real debtor, as the government would not have been barred by limitations, so neither would the complainant.

When two persons claim the same sum of money from a third party, a payment to either does not invalidate the right of the other claimant.

When the relief sought in equity is not more comprehensive than that which might have been obtained in an action for money had and received, the complainant is barred, as he would have been at law, by the statute of limitations. 

COUNSEL:
GLENN, for the appellant, contended:

1. That the bill did not present a case within the jurisdiction of a court of equity. The claim might have been recovered at law--no obstacle there. Adair vs. Winchester, 7 G. & J. 114.

2. That it was barred by limitations--five years had elapsed. Angel on Lim. 349. Hawley vs. Cramer, 4 Cow. 718. 3 Littell, 381. 3 Yerg. and Young, 201.

3. That the judgment at law was conclusive in the case.

4. The decree is erroneous in making each party liable for the whole claim.

5. If not thus erroneous, the decree should have been against the representatives of the surviving owner of the brig.

6. The evidence does not sustain the bill in its facts.

7. No proof of complainant's title to [**8]  the property.

MAYER, for the appellees, cited:

1 Stor. Eq. 471, 48. 2 Ib. 34, 35, 144, 145, 225. Williams vs. Mayor of Annapolis, 6 H. & J. 529. Spring vs. S. Car. Ins. Co. 8 Wheat, 268.

GLENN, in reply, cited:

Murphy vs. Barron, 1 Har. & Gill, 258. 1 Stor. Eq. 89. Karthaus vs. Owings, 2 G. & J. 430, 435.  

JUDGES:
The cause came on to be argued before STEPHEN, ARCHER, CHAMBERS and SPENCE, Judges.  

OPINIONBY:
ARCHER 

OPINION:

 [*223]  ARCHER, Judge, delivered the opinion of the court.
According to the allegations contained in the bill of complainant, filed in this case, the complainant is seeking to recover of the respondents, a sum of money paid to them by the United States, which did not belong to them, and which in equity and good conscience they could not hold against the complainant.
So far as regards the recovery of the money received by the respondents, the complainant might have had redress by an action in a court of common law, in which tribunal it would have been barred by the statute of limitations, more than three years having elapsed between the receipt of the money and the filing of the bill.
Without therefore, deciding any thing upon the question of jurisdiction,  [**9]  unless the bill is more comprehensive from its peculiar allegations and the relief sought, than an action for money had and received, the complainant is equally barred in equity as at law; a court of equity adopting by analogy the statute of limitations.
It appears from the bill of complaint that at the time of the payment of the money by the United States to the respondents, a bond was taken by the United States, payable to that government from the respondents as obligors, the condition of which was that "if it shall be judicially decided that the said Pascal and Rescaniere have the better right to the said sum of money, and the said Craig and his associates, or either of them, shall well and truly indemnify and save harmless the United States, for making the payment aforesaid, to the said Hay, (attorney for the obligors,) then the obligation to be void, otherwise to remain in full force and virtue," and the prayer of the bill is, that the respondents may be compelled to pay the complainant, the money by them received, together with interest thereon, and that they may be compelled to declare to, or in behalf of the complainant, that he is entitled to said [**10]  sum of money, or execute a release or renunciation of all claim to said sum of money, in order to establish his claims to the satisfaction of the United States, and concludes with a prayer for general relief.

 [*224]  In the attitude in which this case stood when the parties were presenting their conflicting claims to the United States, that government might have filed a bill of interpleader against them, in which an adjudication might have been had, as to their respective rights; but she could not, after the payment of the money to one of the parties, institute such a proceeding, but must when she seeks redress, look alone to the bond which she has taken, and her power to recover upon that bond could only exist upon her showing a judicial determination, that Pascal and Rescaniere had the better right to the money, and if the complainant had a right to be substituted to the United States, he could only have the remedies to which the United States would have been entitled, which would amount to nothing, as there has been no judicial determination that Pascal and Rescaniere has the better right. If the United States had taken a bond to indemnify only, she might have [**11]  gone into equity upon a good and valid claim by the complainants upon her, for the money against the respondents, to compel them to pay the money instead of the United States, but she has not taken a bond to indemnify her, unconditionally, but upon the condition that there shall be a judicial determination of a superior right elsewhere existing. When such a judicial determination shall be had, then upon a principle of quia timet, the United States might have obtained a decree for a specific performance of the stipulation, by coercing the obligors to pay back the money by them received to the person rightfully entitled thereto; and had the right of the party been judicially settled, so that the United States might have claimed indemnity, the question of the right of the complainants to be substituted would have arisen, and as in such a case the United States would not have been barred by limitations, so neither would the complainants, if it were possible for them to proceed upon the principle of substitution in a case where the government, which cannot be made a party to the suit, is the real debtor. A bill in the nature of a bill of interpleader, could not be filed. As to the [**12]  United States, she is embarrassed with no conflicting claims; 

 [*225]  she has undertaken to decide the right by paying the money in controversy, to the defendants, who upon one contingency alone, can be called upon to refund. And the complainant could not treat his proceedings in that light, as there are no conflicting rights between third persons to be adjusted, for as between the United States and the defendants, there could only exist conflicting rights when the condition of the bond was forfeited. Indeed insuperable difficulty would be found in treating the bill as one of that character, from the circumstances that the United States would not be a party to the suit; if the defendants, wrongfully, or by fraud, procured payment to be made to them of the funds in controversy, it would be still such a claim as could be reached by a suit at law, and the case being barred at law, is equally barred in equity.
It is not perceived that the complainant's claim against the government is at all weakened or impaired by any mistaken payment of the money, which he was justly entitled to receive, nor does the contract entered into with the defendants, or the payment of the money,  [**13]  furnish the slightest impediment to the complainant's recovery of the government. In the case of a payment made to an individual under the same circumstances, it clearly would not. It is true the sovereign power has an immunity from suits, but that very immunity is grounded on the maxim, that the sovereign power is always ready and willing to do justice, and the same justice it is to be presumed, would be rendered by the United States upon a presentation of the claim with well authenticated proofs, as would and could be coerced from an individual under the like circumstances, although they had, under a mistaken idea of the rights of another person, paid the money to him, to compel the defendants to declare in the language of the prayer, that the complainant is entitled to the money, and to release or renounce all claim to it, if a court of chancery possessed the power, could not place the defendants' claim on the government upon any stronger ground than it now stands; as a payment by a debtor to a wrong person could in one manner release him from his obligations to pay the person justly entitled thereto.

 [*226]  But if the object of the complainant be in fact, by obtaining such [**14]  a decree, a settlement of the right to the funds in dispute, it must be followed by a decree for the money against the defendants, upon the ground either of substitution to the rights of the United States, which we have seen cannot be done, or upon the same principle he could in an action for money had and received, recover at law.
But viewing the case in this light, limitations operate as a bar, wherefore, we are of opinion, that the decree of the chancellor should be reversed with costs.
DECREE REVERSED.  

22 of 47 DOCUMENTS 

FREDERICK L. E. AMELUNG AND OTHERS vs. ALBERT SEEKAMP.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 468; 1838 Md. LEXIS 5 

June, 1838, Decided 

PRIOR HISTORY:
 [**1]   THIS was an appeal from the equity side of Baltimore county court, from an order granting an injunction, and an order continuing the same on the motion to dissolve.

On the 4th December, 1837, Albert Seekamp exhibited his bill, alleging that he was seized in fee of several parcels of land situate in Baltimore county, together with all and every the rights, privileges and advantages to the same belonging; that the said parcels of land are improved with valuable grist and saw mills; that at the time his title accrued, to wit: in 1828, and for more than twenty years, and immemorially theretofore and since, the owners and occupiers thereof were used, and accustomed to have and enjoy, and did have and enjoy, a certain ancient private road or way therefrom to the old Liberty road in the county aforesaid, through and over the tracts or parcels of tracts of land, situate between said old Liberty road, and the pieces or parcels of ground aforesaid; that within the present year a certain F. L. E. Amelung, Joseph Jamison, and James L. Ridgely, being jointly or severally in possession of the tracts or parcels of land over and upon which lieth the said ancient road or way, have hindered and [**2]  obstructed him in his use of the same, to the said old Liberty road, from his property aforesaid; so that he, the complainant, hath been obliged to institute his action of trespass on the case against them to recover damages for said obstruction and hindrances; that notwithstanding complainant's action at law, and his ancient right, the said appellants do still hinder and obstruct, and threaten wholly to hinder and obstruct his said exercise of the right of passage over and upon said way, from, &c. as aforesaid, whereby great and irremediable damage will accrue to him, his mills aforesaid being thus wholly cut off from their ancient and accustomed outlet, and forasmuch as complainant is remediless at law. Prayer for injunction and subpoena, &c.

This bill was accompanied with a certified copy of the docket entries in the action at law, and thereupon the court (Magruder, A. J.) ordered, that upon the filing of a bond with security, to be approved by this court, or a judge thereof, in the penalty of $ 1,000, with the usual condition to prosecute with effect, and with the further condition to pay all damage which may arise or happen from the issuing the injunction now about to be [**3]  ordered--that an injunction issue as prayed, with the usual liberty for the defendants, or any of them, to move at any time, upon one day's notice, either for a new and additional bond, with a larger penalty, or for additional security, or both, and that the defendants be served with a copy of this order with the writ of injunction.

The complainant filed his bond, and a writ of injunction issued, prohibiting the defendants from obstructing the said road.

The defendants answered this bill, after which testimony was taken; but the view finally taken of the nature of the writ of injunction by this court, renders, in the opinion of the reporters, the insertion of either answer or proof unnecessary.

Upon the motion to dissolve, Baltimore county court (Magruder, A. J.) passed the following order:

The only doubt which I have entertained in this case, has been, whether the complainant ought not, in conformity to the established principles of law in England, to settle his right at law, where his title is controverted by the defendants' answer. There it is necessary that the individual complaining of the injury, such as is alleged by the complainant in this cause, should [**4]  have had his rights first established at law, but here in Maryland, where an action or proper proceeding has been instituted in analogous cases, to try the right, an injunction is always granted, and according to the decisions of the court of chancery for a long time passed, ought to be continued until the right has been determined at law, or in some other regular mode, as by an issue directed out of chancery. In Maryland it seems to be settled by the decisions of three successive chancellors in cases analogous in my judgment, to the case now under consideration, that contrary to the usual rule in all other cases of injunction, it is no sufficient answer for the defendant to deny positively, the validity of the complainant's title. The injunction will be continued, notwithstanding such denial. It is sufficient that the complainant claims under colour of title--the injunction will be continued in such case pending the proceedings at law to try the right.

I cannot perceive the distinction attempted to be drawn by the arguments of counsel between the cases of ejectment, (where injunction to stay waste pending the suit at law instituted to try title and location was granted,) and [**5]  that now under consideration. The complainant sets up an uninterrupted adversary user of an ancient private way across the lands of defendants, for a length of time, which (if the fact be so) gives him as complete a title to the road as if he had obtained a deed therefor, and as an easement of that description is susceptible of, and he sets up possession of that road as far as he can, from the nature of his title, have possession--he alleges that he will, if not relieved by the interposition of a court of equity, be subject to all the mischiefs and injury to which a party claiming land would be, pending an ejectment brought by him to try the title, and asks relief adapted to his case, pending the proceedings at law, which he has instituted to try his right. I think he is entitled to it. The court may in the interim, upon a proper foundation being laid, make some provision, the best that can be, for the parties. If further indemnity is asked by the defendants, as, for instance, an increase of the penalty of the injunction bond or additional security, it will be considered, on a proper application being made, supported by affidavits. Upon the whole, the complainant's title being positively [**6]  averred in his bill, although denied by the answers, and he having brought his action at law to have that title authenticated and sustained, must, as I think, under the practice in Maryland, have relief from this court as a court of chancery, by the continuance of the injunction issued in this cause, until the right to the road is decided at law, or at least until further order. It is therefore, this tenth day of March, 1838, ordered and adjudged, by Baltimore county court, sitting as a court of equity, that the injunction heretofore issued in this cause, be, and the same hereby is continued until the further order of this court.  

DISPOSITION:
ORDER REVERSED WITH COSTS.  

HEADNOTES:

The principles and powers of the court of chancery in England at the time of the revolution, not altered by our legislation, nor inapplicable to our political institutions, are the same by which the court of chancery of Maryland is governed.

An injunction will not be granted in England to restrain the commission of a mere trespass; nor will an injunction for that purpose be granted in Maryland, pending proceedings at law to try the right, except in cases of irreparable mischief, or to prevent a multiplicity of suits, or where peculiar circumstances imperatively demand such a conservative remedy.

The mere allegation of a complainant, that irremediable damage or irreparable mischief will ensue, is not sufficient; but to entitle the party to an injunction, the facts must be stated, to shew that the apprehension of injury is well founded. 

COUNSEL:
MAYER and GLENN, for the appellants, cited:

3 Bro. Chan. Rep. 481. 2 Stor. Com. 204. 6 John. C. R. 19. 9 Wendell, 577. 1 Mad. C. P. 157. 8 Con. Eq. Rep. 336. 3 Paige Rep. 213. 1 Hopk. 347. 7 Serg. & Low. 528. 6 Serg. & Low. 524. 3 Saund. R. 175. (d) 3 East. 294. 5 Taunt. 125. 4 Law Lib. Woolrick, 12, 70. 17 Mass. 448. 9 Serg. & Low. 324. 5 Pick. 421. 8 Pick. 504. 2 Swan. 338. 1 Taunt. 206. 5 Har. & John. 478. 2 Gill & John. 173. 7 John. C. R. 332.

J. MASON CAMPBELL and R. JOHNSON, for the appellee, cited:

1 [**7]  Serg. & Low. 118. Beam. Plea. Eq. 217, 218. 18 Ves. Jr. 186. 1832, ch. 302. 3 Paige, 213. 9 Wend. 577. 6 John. C. R. 439. 8 Cowen, 334. 1835, ch. 380. 8 Pick. 509. Wright and Freeman, Har. & John. 3 Saund. 175. (d) 27 Serg. & Low. 192. 5 Pick. 421. 8 Pick. 504.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*472]  DORSEY, Judge, delivered the opinion of the court.
In Snowden vs. Noah, 1 Hopkins' Ch. 353, it is stated as a general principle, that the writ of injunction is a most important remedy; but it is only used to protect rights which are clear, or at least free from reasonable doubt. And in 1 Madd. Ch. 157, it is asserted, in like manner, that in the case of a private nuisance, it seems necessary that a judgment at law, ascertaining the rights of the parties, should be obtained previous to an injunction. And the same principle is recognized in 8 Con. Eq. Rep. 336, except in cases where the injury is irreparable. But it is insisted that an injunction is always granted and continued in Maryland, to stay trespass, pending litigation at law to try the title to land; and [**8]  that the same remedy should be applied for the protection of the right now in controversy.
Before we admit the truth of this conclusion, let us inquire whether the premises upon which it is founded be true. The principles and powers of the court of chancery in England, at the time of the revolution, not altered by our legislation, nor inapplicable to our political institutions, are the same by which the court of chancery of Maryland is governed. Is such a preventive power exercised by the English court of chancery is then the first question to be examined?
For the exercise of such an abstract power, not an English authority can be produced; whilst the authorities there, are uniform and numerous, that no injunction will lie to restrain the commission of a mere trespass. That a simple trespass by a stranger or person claiming title, unless productive of irreparable mischief or ruin, or to prevent a multiplicity of suits, or required by some peculiar circumstances, is no ground for the issuing of an injunction; see the cases collected in the note to 2 Desaus. Eq. 437, and also the case of Jerome vs. Ross, 7 Johns. Ch. 315.
The next inquiry [**9]  is, is it the established chancery doctrine in Maryland to restrain the repetition of a mere trespass, pending proceedings at law to try the right? For such a departure from a well settled principle of equity, as much a 

 [*473]  part of the chancery jurisprudence of Maryland as of England, no satisfactory reason can be assigned. The early cases decided in the chancery court of Maryland, which have been regarded as warranting an injunction in all cases of trespass, pending litigation at law, do not establish the doctrine attempted to be deduced from them. They are either cases where fraud in regard to title is the ground of controversy in the chancery court; and where, in the language of the chancellor of New York, in Apthorpe vs. Comstock, 1 Hopkins 148, the court in which equitable relief is sought, and which alone can give that relief, takes the whole controversy under its own control, and prevents any litigation, excepting that which itself directs, as conducive to its own decision: or they are cases in which the complainant's title being purely equitable, he could maintain no action at law, and was remediless, but for the interposition of a court [**10]  of equity. Such are the cases of the Attorney-General vs. Norwood, and Cole vs. Garretson, cited in 1 Bland's Chan. 581, or they are cases, in which it may be supposed, consistently with the facts stated, that the chancellor regarded the mischiefs resulting from the trespasses threatened, as irreparable. If then acting under a misconception of the early cases referred to, the modern doctrine contended for has been, as is asserted, introduced into the chancery court of Maryland, it has never received the sanction of the appellate tribunals of the state, and will not be sustained by this court. The powers of the court of chancery are sufficiently comprehensive and extended, when in cases of mere trespass, their preventive interference, by injunction, is restricted to cases of irreparable mischief; to the prevention of a multiplicity of suits; or to cases where peculiar circumstances imperatively demand the interposition of such a conservative remedy.
We fully concur in the views expressed by Chancellor Kent, upon this subject, in Jerome and others vs. Ross, 7 Johns. Ch. 315, "that an injunction is not granted to restrain a mere trespass, where the injury [**11]  is not irreparable and destructive to the plaintiff's estate, but is susceptible of perfect 

 [*474]  pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. It must be a strong case of trespass, going to the destruction of the inheritance, or the mischief is remediless to entitle the party to the interference by injunction;" and of Judge Story, who, in his commentaries on equity jurisprudence, 2 vol. 207, states, "that courts of equity interfere in cases of trespass, that is to say, to prevent irreparable mischiefs, or to suppress multiplicity of suits, and oppressive litigation."
Assuming then the existence of that analogy, (as respects the issuing of injunctions) between obstructions to rights of way, and trespasses, no benefit will result to appellee before this court in attempting to invoke to his aid this modern doctrine of the chancery court of Maryland, ought the injunction to have issued or been continued on the ground of irreparable mischief, is the next inquiry? It is true the appellee in his bill alleges, that by the obstruction complained of, "great and irremediable damage will accrue to him, his mills [**12]  aforesaid being thus wholly cut off from their ancient and accustomed outlet:" but the reasons are not given, the facts not stated, which shew to the court that this great and irremediable damage would result by the continuance of the obstruction, until the right of the appellee should be established at law. It is not charged that he has no other reasonably convenient outlet from his mills, that by this obstruction a valuable portion of the customers of his mills will be driven from them. The mere allegation of a complainant, that irremediable damage or irreparable mischief will ensue, is not sufficient. To satisfy the conscience of the court, the facts must be stated, to shew that the apprehension of injury is well founded. Without such a statement of facts, no injunction should have issued. And the defect in the bill, if such a remedy were applicable to such a case, is not cured by the testimony taken in the cause. So far from its exhibiting a case where the continuance of the outrage complained of would work great and irremediable damage, it shews one which warrants the inference, that the loss or injury 

 [*475]  resulting would be trivial, and susceptible of adequate compensation [**13]  in damages at law. But if it were otherwise, the default of the appellee in standing by and permitting the appellant, Amelung, to enclose the land affected by the way in question, and to cultivate and improve the same for four years, would interpose a strong, if not an insuperable barrier to any interference in his behalf by way of preliminary injunction.
Believing that county court erred, both in the order granting, and in the order refusing to dissolve the injunction, this court will sign a decree reversing both those orders with costs in this court.
ORDER REVERSED WITH COSTS.  

23 of 47 DOCUMENTS 

NATHAN H. OWINGS vs. JAMES OWINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 267; 1838 Md. LEXIS 25 

December, 1838, Decided 

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

THIS was an action of assumpsit, commenced by James Owings on the 3d October, 1833, against the appellant. The declaration was for sundry matters and articles properly chargeable in account; for work and labour, money lent and advanced, paid, laid out and expended, had and received, and upon an account stated. The defendant pleaded non-assumpsit, on which issue was joined.

At the trial, the plaintiff, James Owings, offered in evidence the record of an action of assumpsit, brought by Nathan Owings against Samuel Owings and James Owings, as executors of Richard Owings, commenced on the 21st March, 1823; in which it was so proceeded in, that the plaintiff recovered judgment for $ 795 60, with interest and costs, on the 21st October, 1824.

The plaintiff then further offered in evidence, the record of a certain bill in chancery, commenced on the 8th February, 1830, by Thomas Beale Owings and wife, and Nathan Owings, and Henry Stevenson and wife, against James Owings, surviving executor of Richard Owings; upon this bill it was so proceeded, that Nathan Owings recovered a decree on the 13th April, 1830, against the said James, as executor [**2]  of Richard, for $ 944 83. The other complainant, Stevenson, recovered a like sum. An execution was sued out on the 30th April, 1830, and returned satisfied, 7th July, 1830. On the 14th July, 1830, James Owings prayed an appeal from the decree of 13th April, upon which appeal the decree of the chancellor was reversed, and the bill dismissed, without prejudice.

He further offered in evidence, that on the 30th day of April, 1830, a ca. sa. was issued by order of the chancellor, of that date, against the now plaintiff, James Owings, the defendant in that cause, which was directed to William Ball, then sheriff of Baltimore county; that the said James Owings was arrested under said ca. sa. on the second day of May, 1830; and thereupon paid to said sheriff, under said ca. sa. the sum of $ 1927 79, besides poundage fees, which said sum was subsequently paid by said sheriff, on the 7th day of July, 1830, to J. J. Speed, Esquire, one of the solicitors for the complainants in said suit. That the said J. J. Speed, on the same day, paid the sum of $ 1890 90, in full of said decree and execution, except the sum of $ 36 89, costs, retained by him as costs in chancery, to said Henry Stevenson.  [**3]  

That at the time of such payment, and just before the same was made, the said Stevenson exhibited to said Speed, the following contract in writing, made by and between the said Stevenson and the defendant in this case, the due execution of which was admitted.

Articles of agreement made and concluded this 28th day of April, 1830, between Henry Stevenson, of Baltimore county, in the state of Maryland, of the one part, and Nathan H. Owings, of Frederick county, in the state of Maryland, of the other part, witnesseth,--the above named Henry Stevenson agrees to deed to the above named Nathan H. Owings, in fee simple, clear of dower, his part or half of a tract of land, on Morgan's run, in Baltimore county, Maryland, for the consideration hereinafter mentioned, at any time when called upon for the deed, and the said Owings agrees to assign all his right to a claim now in the court of chancery, against the executors of Richard Owings, deceased, in lieu of the above recited land. Witness our hands and seals this 28th day of April, 1830.

Signed,

HENRY STEVENSON,

N. H. OWINGS.

The plaintiff also offered in evidence the last will and testament of Richard Owings,  [**4]  deceased; by which he devised certain personal property, inter olea, to Beale Owings, father of the plaintiff in this action.

The plaintiff then offered his various accounts, No. 1 to 10, settled by him as executor of Richard Owings, with the orphans court of Anne Arundel county, from 1829 to 13th February, 1833, on the last of which he claimed (and it so appeared by the accounts) to have over paid the estate $ 4,731 86. The accounts were voluminous, and comprehended a great variety of items, both of debts and credits.

The defendant then proved by Harriett Ijams, a competent witness, that Mary Stevenson, Nathan H. Owings, the defendant, and herself, were the only children and heirs at law of the said Beale Owings, and that they were all under age at the time of her said father's death, and that her said father left her mother, Cordelia Owings, his widow at the time of his death. That after the death of her said father, Beale Owings, her said mother, whose right it was to administer on the personal estate of her said husband, the said Beale Owings, at the instance and request of the said Richard Owings, the plaintiff's testator, agreed to let him administer on her said husband's [**5]  estate, in consideration whereof the said Richard Owings agreed with her said mother, to pay her all the commissions which might be allowed him by the orphans court of Anne Arundel county, for administering on said Beale Owings' estate. That after the said Beale Owings' estate had been settled up by the said Richard Owings, the said Cordelia Owings gave to her, the witness, her claim to one-third of the amount of said commissions on said Richard Owings. That witness, some time in the year 1815, called on said Richard Owings for the same, and that he paid her the sum of five hundred dollars, and took her receipt for the same. That at the time the said Richard Owings so paid her, he told her that it was one-third of all the commission allowed him for administering on the estate of her deceased father, the said Beale Owings, and that he had agreed with her mother to pay her, for the use of her children, all the commission that should be allowed him by the orphans court for administering on the estate of the said Beale Owings, in consideration of her said mother's permitting him to administer on the same.

He also proved by competent testimony, that Richard Owings left a large real [**6]  estate at the time of his death, much more than sufficient to pay all his debts, including the said sum, if the same can be considered a debt, so paid over by his said executor to the sheriff as aforesaid, and which is now sought to be recovered back by the plaintiff in this case. And that a decree in the chancery court has passed, ordering the same to be sold for the payment of the debts of said Richard Owings, deceased, and is now in full force.

1st. The defendant by his counsel thereupon prayed the court to instruct the jury, that if they believed from the testimony in the cause, that defendant did on the 28th day of April, 1830, sell and assign his interest to Henry Stevenson, as set forth in the agreement offered by the plaintiff, in evidence aforesaid, and that he received the said land, mentioned in said agreement, as the consideration for said transfer of his said interest, and that the said money received by J. J. Speed from William Ball, the said sheriff, was paid over by him to said Stevenson, and not to the defendant in this cause, and that the said Stevenson receipted to him, the said Speed, for the same, as herein before proved by said Speed, that then the plaintiff [**7]  is not entitled to recover, on the ground that the defendant did not receive the said money from said William Ball, the sheriff, or from said Speed, or said Stevenson, or the plaintiff in this case, which instruction the court (Shriver and T. Buchanan, J.) refused to give, being of opinion that the transfer of the said land by said Stevenson to the defendant, as the consideration of the assignment of his said right, as set forth in said agreement, is sufficient in law to entitle the plaintiff to maintain this form of action, to recover the amount so paid to him; to which refusal and opinion, the defendant by his counsel prayed leave to except, and that the court would sign and seal this his bill of exceptions, according to the form of the statute in such case made and provided, and which is done accordingly this 1st day of March, 1837.

2d. The defendant then, by his counsel, further prayed the court to instruct the jury, that if they believed from the whole of the evidence given by the plaintiff and defendant, as set forth in the first bill of exceptions in this case, and which evidence is to be taken and considered as forming a part of his second bill of exception, that the money [**8]  paid by the plaintiff, and which he seeks to recover in this action, was paid on a ca. sa. issued on said decree passed against him in the court of chancery, and afterwards reversed in the court of Appeals, and that the fact of such payment appeared to the court of Appeals on the said record of said case before them, as now offered in evidence by the plaintiff, that then the plaintiff is not entitled to recover, because the court of Appeals had the power, on the application of the plaintiff, to have ordered a restitution to him of the said money, and because the plaintiff cannot recover his claim in this court as a court of law, founded as it is upon the said judgment of reversal of said decree by the court of Appeals; that court being competent to give the plaintiff all the relief to which he was entitled, if any, as against this defendant; but which instruction the court (Shriver and T. Buchanan, J.) refused to give, being of opinion, and so instructed the jury, that the plaintiff may sue in this court as a court of law, in the present form of action adopted by him in this case; to which opinion, refusal and instruction, of the court, the defendant, by his counsel, prayed leave to [**9]  except, and that the court would sign and seal this, his second bill of exceptions, according to the form of the statute in such case made and provided, and which is accordingly done this 1st day of March, 1837.

3d. The defendant further to support the issue on his part joined in this case, in addition to all the evidence offered by him and the plaintiff, as set forth and contained in the first bill of exceptions, signed in this case, and which is to be taken and considered as a part of this, his third bill of exceptions, proved by competent evidence, that defendant in this case was born on the 10th day of March, 1801. The defendant also proved by competent testimony that the sum of $ 1987 22, for which the plaintiff, as executor of said Richard Owings, claimed and obtained a credit in his ninth account, passed in the orphans court of Anne Arundel county, as money paid to said William Ball, as the sheriff of Baltimore county, on execution issued in Chancery, at the suit of Thomas B. Owings and others against the deceased's estate, is the same money, a part of which the plaintiff is seeking to recover from the defendant in this action. The defendant then, by his counsel, prayed [**10]  the court to instruct the jury, that if they believed all the aforegoing testimony, that then the plaintiff is not entitled to recover, because it is not contrary to equity and good conscience, for the defendant to retain the money that is sought to be recovered of him in this action; which instruction the court refused to give, and were of opinion, and so instructed the jury, that the facts and circumstances proved as aforesaid, do not constitute any defence for the defendant in this case; to which refusal and instruction given by the court, the defendant, by his counsel, prayed leave to except, and that the court would sign and seal this his third bill of exceptions, and which is accordingly done this first day of March, eighteen hundred and thirty-seven.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

An action for money had and received, may be maintained, to recover back money paid under a decree, which is subsequently reversed by the court of Appeals, and to support the action, it is not necessary to prove, that the complainant recovering the decree, (the defendant in the action at law,) actually received the money. If he assigns the decree before payment to another for property, and the payment is made to his assignee, he is still liable in this form of action.

And it is no objection to the right to recover, that the record before the appellate court, at the time of reversal, shewed the previous payment of the money, though it was insisted that seeing such payment, the latter court might itself have ordered restitution.

But if the decree, under which the money was paid, was against the plaintiff at law as executor, and he claimed and obtained a credit for such payment in his accounts in the Orphans court, and the defendant at law, who was the complainant in Chancery, was a creditor of the plaintiff's testator, the latter should not be permitted to recover the whole sum paid by him under the decree, though the accounts in the Orphans court settled by him shewed a large over payment. It should have been left to the jury to determine from the evidence, what amount of the assets of the estate of the plaintiff's testator, were applicable to the defendant's claim against his testator. 

COUNSEL:
By J. Johnson and Speed for the appellant, and

W. Schley for the appellee.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*273]  ARCHER, J., delivered the opinion of the court.
Differing in opinion with the court on the third exception, the judgment is reversed. This court is of opinion, that it should [**11]  have been left to the jury to determine from the evidence what amount of assets were in the hands of the executors of Richard Owings, applicable to the payment of Nathan H. Owings' claim against said Richard Owings' estate. To the extent of any assets found by the jury, applicable as aforesaid, James Owings had no right to recover in this case.
JUDGEMENT REVERSED AND PROCEDENDO AWARDED.  

24 of 47 DOCUMENTS 

WILLIAM POWELL, et al vs. JOSIAH BRADLEE & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 220; 1837 Md. LEXIS 31 

December, 1837, Decided 

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

This was an action of Replevin sued out on the 26th April, 1833, by the appellees trading under the firm of Josiah Bradlee & Co. for 510 barrels of flour, and 4424 1/2 bushels of corn, the property of the plaintiffs taken and detained, &c. by William Powell, Henry B. Fiddeman, John Boggs, and Alexander L. Boggs, the defendants. The property was returned by the sheriff replevied, and delivered as per schedule, which bore date on the 29th April, 1833, and the receipt of Andrew Hall of that date for both, was filed by the sheriff--the defendants severed in their pleadings. Powell and Fiddeman pleaded non cepit, and property in themselves in all the goods, and J. and A. L. Boggs also pleaded non cepit and property in themselves and all the goods taken, &c. The plaintiffs joined issue on the first, and replied, property in themselves in bar of the second plea, on which, issue also was joined.

At the trial the plaintiffs offered in evidence a bill of lading, for the corn and flour, bearing date 24th April, 1833, shipped by Tyson & Norris, of Baltimore, on board the brig Joseph, Frisbee, master, bound to Boston, consigned to the appellees, endorsed [**2]  as follows: "Boston, 12th May, 1833. Accepted to deliver the within named corn and flour to Messrs. Josiah Bradlee & Co. the consignees. James Frisbee." And also the following letters from Tyson & Norris to the plaintiffs, dated 18th, 19th, 23d, and 24th April, 1833, marked B, C, D, and E, and the following letter from the plaintiffs to Tyson & Norris, dated 20th April, 1833, marked F.

(B.)

Josiah Bradlee & Co. Boston. Baltimore, 4th mo. 18th, 1833.

Annexed you have bill lading for 3613 1/2 bushels splendid yellow corn on board the brig Patapsco. The Patapsco did not take the quantity agreed, on account of other freight received, and wet weather prevented completing cargo as soon as expected. This is truly a handsome lot, and well selected, about 1000 bushels in bottom of cargo very heavy and sound--2096 bushels choice sample, can be had in afterhatchway; the balance similar to that on top-forward-hatch we requested insurance in former letter. If you cannot get 85 cents for this cargo on board, put it into store; think you will find it equal to the northern corn, remarkable for its cleanness, and heavy; it may be best to sell in lots of 500 bushels--72 cents offered [**3]  and refused for the fellow-cargo to the 2096 bushels on board Patapsco to arrive, 75 asked.

Enclosed you have bill lading for cargo corn, 2683 bushels on board the schooner Howard, all white and yellow mixed, except about 650 bushels good yellow. If you cannot get at least 80 cents, wish it put into store; requested insurance in a former letter--are about to load the brig Joseph with a cargo of corn to your address. Please keep us advised of markets. We draw on you to-day at 30 days for N. Tyson, for $ 2,000, which please honour.

Yours respectfully,     TYSON & NORRIS.

N. B.--Since writing the above we have your esteemed favour of the 15th inst. before us, and contents particularly noted. Should you be under the least apprehension of the corn we have sent you, not keeping, wish you to effect sales of such, of which we submit entirely to your better judgment. We have some in store for several weeks, and thus far keeps well--and exercise your judgments also in sales of the two cargoes here sent--will examine into accounts and take due care that the shipment now making will fully cover amount of your drafts as mentioned.

Respectfully, yours,     T. & N.

(C.  [**4]  )

Josiah Bradlee & Co. Boston.     Baltimore, 4th mo. 19th, 1833.

RESPECTED FRIENDS:

We advised you in ours of yesterday of having taken up brig Joseph to load for your address. A vessel offering after writing to you yesterday, which we liked better, and the captain of the Joseph preferring a freight offered him to Portland, we took the schooner Sarah and Priscilla, Chesapeake built, a good vessel of 900 bbls. burthen, and will have her despatched without delay--please get insurance effected on receipt of this, on flour, to amount of $ 3,000, and on corn to amount of $ 2,200. Insurance on corn at the lowest rate of average. We have examined our accounts since receipt of yours of 15th, at hand yesterday afternoon, and find we have drawn much closer than we had any idea of--you shall be amply covered without delay. We have no fear of the corn we have sent you respecting its keeping, as we have been exceedingly careful--corn brought to market in February and 1st March, was damp--since, it is more generally in good condition; however, leave you free to act with any we have sent, as in your better judgments, our interest may be promoted; will, however, repeat our full reliance [**5]  on very high prices for the article next month, and high in June; our idea was to sell next month, should you have any doubts of its keeping, sell such parts at least, without delay. Fresh flour will be high also in May and June, from the unusual scarcity of wheat, and we look for better price; it may be dull for a while; sales from the wharf may be best, of which, leave you free to act. Should suitable prices be offered--corn is scarce--we have bought as low as 65 a 66 cents first of this week, and put into store, no vessels being here to load; and a good supply caused a slight re-action; it is again scarce, and sales, white at 69 cents, yellow, 71 cents; considerable bought for the Madeira market.

Your esteemed friends,     TYSON & NORRIS.

N. B.--Since writing the above, yours of the 16th at hand, and regret that you should have had cause to complain; shall of course take better care in future."

(D.)

"J. Bradlee & Co. Boston.     Baltimore, 4th mo. 23d, 1833.

RESPECTED FRIENDS:

Yours of the 20th at hand, and regret to learn of your having refused acceptance to our draft of the 15th. We shall proceed without delay, as advised in our two last, to [**6]  make shipments sufficient to satisfy you fully, and hope you will then protect the drafts drawn. The Sarah and Priscilla is unavoidably delayed at the ship yard, undergoing some repair to her cabin. Shall despatch her with all possible speed. The flour has been in waiting to go on board for several days--no other vessel to be had to load sooner. We wish you to exercise a wholesome discretion in effecting sales of our corn and flour.

Your esteemed friends,     TYSON & NORRIS."

(E.)

"Josiah Bradlee & Co. Boston. Baltimore, 4th mo. 24th, 1833.

RESPECTED FRIENDS:

We wrote you yesterday, since which we find the Sarah and Priscilla will not get from the ship yard for two or three days, and having completed the loading of the brig Joseph, originally destined to Portland, concluded to send her to you--bill lading you have herewith annexed for 205 bbls. Howard street super, marked C and H, and 100 bbls. super marked S, and 100 bbls. fine flour, Susquehanna, marked F. This is a handsome parcel of flour: also 101 bbls. of best first middling, marked M; also, 2760 bushels heavy yellow corn, and 1664 1/2 bushels white--the yellow can nearly all be got out separate, the [**7]  white being on bottom of forward hold. This will be found a very superior cargo corn, in handsome condition. Please get insurance effected on flour to amount of $ 2,700, and on corn to amount of $ 3,100. We hope you will now have no hesitation in protecting our drafts. We regret you did not await our reply to your first intimation, that we had drawn too close. Exercise your better judgment in the disposition of our flour and corn. Flour is in better request to-day, and several sales of Susquehanna at 5.31 1/4, for export, City Mills 5 1/2, and corn retains its price.

Your esteemed friend,     TYSON & NORRIS."

(F.)

"Messrs. Tyson & Norris, Baltimore. Boston, April 20, 1833.

GENTLEMEN:

Your favour of the 15th inst. is before us, advising that you were loading the schooner Howard with corn, and had drawn another draft at 45 days for $ 2,500, which we have permitted to be noted for non-acceptance, and regret being obliged to do so; but we find it necessary to come to a stand. You have already drawn for nearly or quite the value of the property shipped, which is mostly corn, an article that may injure by keeping, particularly at this season, as it is said to [**8]  be not well dried. We feel that there will be considerable risk in holding corn, and are of the opinion, that we ought to proceed in the sales unless you will refund one-quarter of the amount advanced.

Respectfully, your friend,     JOSIAH BRADLEE & CO.

P. S.--Since closing the within, the schooner Darius has arrived--the corn is heated, and we shall have to sell it on board."

The plaintiffs then proved that the goods mentioned in said bill of lading, were shipped by Tyson & Norris on board the brig Joseph, in the port of Baltimore, on or before the 24th of April, 1833.

The plaintiffs further offered in evidence, a writ of replevin issued at suit of the defendants, A. & J. Boggs, and also a writ of replevin issued at suit of the defendants, Powell and Fiddeman, out of Baltimore county court, which were admitted to have been issued, the first on the 25th, and the other on the 26th April, 1833, and for the recovery of part of the flour and corn respectively, which had been so shipped by said Tyson & Norris.

The plaintiffs then proved by     Wilson, that on the 25th of April, 1833, the said writ of replevin of the said A. and J. Boggs, was placed in the [**9]  hands of him, the witness, as the deputy of the sheriff of Baltimore county, and that in order to the execution of said writ, he, the witness, went down on the evening of that day to the brig Joseph, and that not finding the captain there, he went to the shore, met with the captain, and went with him to the office of an agent of the plaintiffs, when it was agreed that the vessel should remain until 12 o'clock the next day, to see whether any amicable arrangement of said action could be effected; that on the next morning, no arrangement having been made, the said writ of replevin at the suit of Powell and Fiddeman was issued, and put into his hands, as deputy as aforesaid, and that having discovered that the said vessel had got under weigh before the time agreed upon; the witness having said writ of replevin in his possession, and with a view to the execution of the same, employed a vessel to pursue the brig, and bring back the property to which said replevins respectively related. That said witness accordingly went in said vessel with said replevins, and in company with J. Boggs, and the agent of Powell and Fiddeman, in pursuit of the said brig, and overtook her, and that being about [**10]  to execute said replevins, the captain of the said brig Joseph proposed to come back to Baltimore, to enable the witness to execute said writs there, to which the witness assented. That accordingly said brig returned, and the witness, after she came to the wharf, in the execution of said writs, began to unload the flour and corn, to which they related. That on the morning of the 27th of April, and whilst the witness in the execution of his duty under said writs, as deputy sheriff, was engaged in so unloading said flour and corn, Mr. Murray, another deputy of the said sheriff, came down to the wharf when he was so engaged, with the writ of replevin issued in this action, which is admitted to have been issued, for the recovery of the whole of said property, so replevied under the said writs of A. & J. Boggs and Powell and Fiddeman. That witness then proceeded no further in the execution of said last mentioned writs, but had then unloaded about two hundred barrels of the flour, and about one thousand bushels of the corn. That immediately afterwards, the said Murray executed the said writ of replevin in this action. The said witness further proved, that the said flour and corn, so taken [**11]  by him under the said several replevins of the defendants, A. & J. Boggs, and of Powell and Fiddeman, were never in fact delivered to them, the said defendants, nor ever appraised by him before the writ in this case was served; and that he had no knowledge of any agreement on the part of the defendants, or any of them, before the said property was replevied under the writ in this action, dispensing with the delivery to them of the corn and flour respectively, under those said writs of replevin, or agreeing to acknowledge delivery. The plaintiff then offered in evidence the following schedules and receipts of A. & J. Boggs, and of Powell and Fiddeman. "A schedule of the goods and chattels of William Tyson and Lloyd Norris, seized and taken at the suit of John Boggs and Alexander Boggs, by virtue of a writ of replevin, issued out of Baltimore county court to the sheriff thereof, described and appraised by us the subscribers, who first being duly summoned and sworn for that purpose. Given under our hands and seals this 29th day of April, 1833.

296 barrels of flour marked F and S, at $ 5 19, $ 1,536 24

E. Dorsey, [seal.] Alex. Cummins, [seal.] Jacob Myers, Jr. [seal.]

April [**12]  29th, 1833, received from the sheriff of Baltimore county, the above appraised flour.    JNO. BOGGS & CO."

"A schedule of the goods and chattels of Frisbee, seized and taken at the suit of William Powell and Henry B. Fiddeman, by virtue of a writ of replevin, issued out of Baltimore county court, to the sheriff thereof directed, and appraised by us, the subscribers, who first being duly summoned and sworn for that purpose. Given under our hands and seals this the 29th day of April, 1833:

2,036 bushels of corn at 65c.     $ 1,323 40

E. Dorsey, [seal.] Alex. Cummins, [seal.] Jacob Myers, Jr., [seal.]

April 29th, 1833. Received of the sheriff of Baltimore county the above appraised corn.

POWELL & FIDDEMAN."

Which were admitted to have been executed by the said defendants respectively, or their authorized agents, and for the property to which these said replevins related: And also proved, by the said witness, that the body of said receipts was in his, witnesses hand writing. The said witness also proved that, when he first found the brig Joseph in the evening, she was lying abreast of the powder house, about one hundred yards from the shore, in [**13]  the stream, and about half a mile from Spears' wharf, and that the captain had gone ashore for wood. That he understood from Mr. Murray at the time, that there was some agreement with J. Boggs, about the delivery of the flour under Boggs' replevin before the replevin in this action was served, but has no personal knowledge of any such agreement.

The plaintiffs further proved, by Matthew Murray, that the writ of replevin in this action, was placed in his hands as deputy sheriff for execution, on the morning of the 27th of April, 1833, and that he went with Mr. Hall the agent of the plaintiffs to the wharf, where the witness Wilson was engaged in unloading the corn and flour under the defendants' said several writs of replevin. That a considerable portion of the corn and flour was then unloaded, and that J. Boggs, one of the defendants, was then there; that it was then and there agreed between the witness and said J. Boggs, that Wilson might cease delivering the flour, and that he, Boggs, would consider it delivered, and receipt for its delivery; and that immediately after said agreement, and not before, he the witness, executed the plaintiff's replevin in this action; that he made [**14]  no agreement except with Boggs, and that the corn and flour never were in fact delivered under the said previous writs of replevin, and that it was his the witnesses impression, that at the time of said agreement, he drew a receipt for the flour to be signed by Boggs, which Boggs then signed on board the vessel. The witness being then directed to the receipt of Boggs for the said flour, offered in evidence in this cause, then proved, that that was the receipt to which he alluded, and that it was not in his hand writing, but in the hand writing of the witness Wilson, and that he was not positive as to the time or place at which said receipt was given, but that the said agreement between him and J. Boggs, was in fact made before the plaintiff's replevin was served.

The defendants to support the issue on their part joined, then proved by Edes that he was the clerk of the defendants A. & J. Boggs during the month of April, 1833; that on the 22d of said month, the said defendants sold for cash, to Tyson & Norris, 296 barrels of flour, of which it was admitted that, the two hundred barrels replevied by the plaintiffs in this action was a part; that before this sale, the said Tyson &  [**15]  Norris had several times applied to the said A. & J. Boggs to sell them, Tyson & Norris, flour on credit, and that the said A. & J. Boggs had refused to sell to them on a credit; that the said flour so sold for cash was sold on the 22d and delivered on the 23d of April, and delivered as witness supposed for shipment. Tyson & Norris carried on business at a place about five doors from the place of business of the said A. & J. Boggs, and on the same wharf; that A. & J. Boggs had frequently sold flour before to Tyson & Norris for shipment, but had for some time refused to sell to them on credit; said witness further proved, that it was then, and is now, the general usage amongst flour dealers in the city of Baltimore, when flour is sold for cash, to deliver the flour before the cash is called for, and that by the delivery, the seller is not under said usage considered as waiving his right to the cash payment. The defendants further proved by Dorman, that Tyson & Norris stopped payment on the morning of the 25th of April, 1833; that some few days afterwards, witness attended a meeting of the creditors of Tyson & Norris, at which William Tyson of said firm was present, and addressed the [**16]  meeting. That Tyson then stated to the meeting, that he and his partner had examined their affairs, and that the utmost they would be able to pay their creditors, was twenty cents in the dollar. That Tyson then proposed to give their creditors twenty cents in the dollar, and to give the notes of Tyson & Norris (themselves) for that amount, in three equal instalments, payable one, two, and three years after date, without security; and in reply to the inquiries of some of the creditors, Tyson said, that they were unable to give security even for the twenty cents; and that Tyson required of the creditors a release of their claims, upon the giving of said notes by himself and partner. The defendants also proved by Keller, a competent witness on their behalf, that he was present at several meetings of the creditors of Tyson & Norris, and heard several propositions made by the latter to their creditors. That the first meeting took place within three or four days after the failure of Tyson & Norris, and that their first offer was, to pay twelve and a half cents in the dollar. That at a subsequent meeting held a few days afterwards, they offered to give twenty cents in the dollar by their [**17]  own notes for that sum, without interest, and made payable by instalments, in one, two, and three years, and that said Tyson then stated, that the said sum of twenty cents was the utmost which they could pay. The defendants further proved by Prentiss, that he knew the brig Joseph, on board of which, the flour and corn to which this action relates was shipped, and that said vessel was commanded by captain Frisby. That on the 24th of April, 1833, the vessel was lying at the lower end of Spears' wharf. That on that day, the said captain had applied to him for the stores of said vessel, and told witness he would get them next morning. That on the next day, the vessel was about to drop down, and did drop down from the said wharf without her stores. The defendants here offered to prove by said witness, that at the time when said vessel was so dropping down without her stores, witness asked captain Frisby why his vessel was going away without her stores, and that Frisby replied that Tyson & Norris had ordered him to get out as fast as possible; but the counsel for the defendants objected to the evidence so offered, and the court sustained their objection. The said witness further proved,  [**18]  that after the vessel had dropped down from the wharf at which she had loaded, her boat was sent back for the stores, which were supplied; that said vessel had been in the habit of getting her stores of the witness, and that she had never before left the wharf without her stores and sent back for them, as in this instance.

The plaintiff then, by consent, called William Sealy, a competent witness, on their behalf, and proved by him, that he was the mate on board the brig Joseph when the cargo was shipped in her by Tyson & Norris, to part of which this action relates--that she took in her cargo at Spear's wharf and dropped down on the morning of the 25th of April to take advantage of the tide, the vessel not being able to get out at common tide. That the wind was then to the eastward, and light, that she dropped down about half a mile, where she anchored and remained until the next day at 11 o'clock. That they had not got their stores or caulked the hatches of the vessel when they left Spears' wharf, in consequence of the necessity of dropping down to take advantage of the tide, and that it did not require more than an hour in all to get their stores and fix their hatches; that [**19]  on the evening of that day after the vessel came to anchor, they sent back for their stores, and got their wood; that the vessel was very heavily loaded, having on board two hundred and ten barrels of flour and forty-two hundred bushels of corn. That on the evening of the day the vessel dropped down, Wilson, deputy sheriff, came on board, and not finding the captain, then went to shore and made some arrangement with the captain about the vessel's waiting until the next day, but what the arrangement was, the witness did not know, except from the information of the captain, who stated to witness, that he was to wait until 12 o'clock the next day, or longer if Mr. Whitridge should consider it necessary, and that on the next day the vessel got under weigh, when she was pursued and overtaken by Wilson, and the captain agreed to go, and accordingly went back to the wharf. The plaintiffs further proved by Fowler, a competent witness, on their behalf, that he was the clerk of Tyson & Norris for about six weeks immediately before their failure, and kept their leger and cash book, and that on the 22d of April, 1833, as appeared by their books, they (Tyson & Norris) bought 300 barrels of flour [**20]  from A. & J. Boggs: that from the 18th to the 25th of April, their purchases amounted to about $ 16,000, and their payments to about $ 15,000, of which latter, about $ 5,000 was paid for purchases during said week; that on the 24th of April, 1833, the day before their failure, they (Tyson & Norris) drew in all, their checks for about $ 14,000, of which, about $ 7,000 was paid, and the remainder was returned unpaid on the 25th. That none of these checks were to the witness' knowledge dishonoured before the 25th, and that witness never had the slightest notice that Tyson & Norris were about to stop payment until the morning of the 25th of April; that on that morning they had sent a deposite of $ 4,100 to the Union Bank, and had just despatched another messenger with a further deposite of between three and four thousand dollars to said bank, when Lloyd Norris, one of the firm, came in and said he was sorry that they would be obliged to stop payment; that the Union Bank had refused to take checks on deposite, and they would be unable to go on. That a messenger was accordingly despatched after the deposite, then on its way to the Union Bank, the deposite recalled, and the notes and money [**21]  borrowed, which made up that deposite, were immediately returned to the persons from whom they were borrowed. That witness was not particularly in the confidence of Tyson, but never heard either of them before the morning of the 25th, intimate that they were about to stop payment, or express the least apprehension of it. Said witness further proved that he filled up the bill of lading of the brig Joseph; that of the flour, in part composing said cargo, there was in all five hundred and ten barrels, of which, one hundred and one barrels were from the mills of Tyson & Norris, and the residue was not paid for: and of the corn, there was in all forty-four hundred bushels, of which, eight hundred and sixty-eight bushels were paid for, and the residue was not paid for. That the immediate cause of their stopping was the noting of their draft for non-acceptance by the plaintiffs, of which they, Tyson & Norris, were notified by the plaintiffs' letter of 20th April, offered in evidence. That his, the witness' impression up to the time of their failure, was, that Tyson & Norris were solvent, and that immediately after the failure, Tyson said he was quite confident they would pay all their debts,  [**22]  and that nobody would lose by them. Same witness further proved, that he examined the books of Tyson & Norris after their failure, for the purpose of making an estimate as the basis of their proposition to their creditors, and advised them, after this examination, to offer twenty cents certain to them, and to dispose of the property to the best advantage, and give them, the creditors, any surplus over twenty cents which it might yield; that in making this estimate he took into view the probable losses from their consignments in Boston, and the reduced price which their whole property would bring, which latter was subject to a mortgage to the Union Bank for twenty-five thousand dollars, and which they, Tyson & Norris, valued at sixty thousand dollars, but which was in fact, afterwards sold for forty thousand dollars--that the whole amount of Tyson & Norris' consignments to the plaintiffs, from the 8th of March to the 22d of April, 1833, at the invoice price here, was $ 29,206, and that there was due to the plaintiff exclusive of the drafts noted by them for non-acceptance, $ 24,000 for drafts of Tyson & Norris, accepted by them previously to the consignment by the Joseph, and $ 6,000,  [**23]  a balance on the old account. That the consignment by the Joseph was on the account, and at the risk of Tyson & Norris, and that before the receipt of the plaintiffs' letter of the 20th of April to Tyson & Norris, the cargo consigned by it was intended for Portland, and that its destination was changed in consequence of the receipt of said letter. Said witness further proved that the defendants, A. & J. Boggs, made no demand for the cash before the failure, or witness would have paid it; that such demand was always promptly met; that he does not know whether Tyson & Norris ever applied to purchasers to give them credit on their purchases; that where purchases of corn and flour, &c. were made, the bills must first have been submitted to, and approved by one of the firm, and orders given by one of them to pay them; that he recollects a purchase of two lots of corn made by Tyson & Norris of     Dorman, on the 22d and 23d of April, 1833, and that Dorman brought in his bills for them on the 23d, and called for the cash, and that Tyson & Norris then gave him all the cash he asked for: that Dorman's bill, first lot, was for $ 808.50, and the second, for $ 1,524.60, and that for the first,  [**24]  they gave Dorman their check on the 24th, which was not paid, and on the second, they gave him their check on the same day for $ 750, which was paid, that he recollects also a purchase of corn from Mr. Crawford on the 18th of said April, which was paid by Tyson & Norris' check on the 24th of that month.

The defendants then proved by Dorman, the witness before examined, that he sold the two parcels of corn as stated by the witness Fowler, to Tyson & Norris on 22d and 23d of April; that he sent his boy to Tyson & Norris with the bills for the cash three times in the course of that morning, and was unable to get it; that he then went in person and asked for payment, when Norris, one of the firm, begged witness not to press for payment at that moment; that witness insisted upon having the whole of the money, and Norris then agreed that they, Tyson & Norris, would give witness their check for the whole amount of his two bills if he, witness, would agree to deposite their check so that it would not come round for payment until the next day in the regular course of exchange between the banks, and would also lend them his check for $ 800, which the witness refused to do; that the conduct [**25]  of Norris on that occasion, produced an impression in witness' mind unfavourable to their credit; and witness still insisted on payment, and at length they gave witness one check for $ 800 and upwards, which witness was to deposite, and which he did deposite, and which was returned next day unpaid, and another for $ 750, which he was at liberty at once to present, and which was presented, and the money received upon it on same day: Said witness further proved, that at the meeting of the creditors of Tyson & Norris at which he was present, he never heard either of them make any offer of the surplus which their effects might produce over and above their offer of twenty cents; but on the contrary, understood that they required a release as the condition of their offer; and also proved, that about the 22d, 23d, and 24th of April, he understood from purchasers that corn was selling for more in Baltimore than in Boston; that purchasers complained that Tyson & Norris kept the price too high, and that in fact Tyson & Norris were then giving more than other purchasers. The defendants further proved by Robert Mickle, a competent witness on their behalf, that he was in April, 1833, and still [**26]  is the cashier of the Union Bank of Maryland; that for some time before the failure of Tyson & Norris they had been in the habit of over-checking, and that their checks upon said Bank have frequently been refused; that it had been their daily practice for a long time to over-check there; and they had been indulged in this practice to a great extent, and made their over-drafts good; that the advances by the Union Bank to Tyson & Norris under their mortgage of their real property to the Bank, amounted to about twenty thousand dollars; that it was the practice of Tyson & Norris to draw drafts upon their shipments, and particularly upon their shipments to the plaintiffs, upon which they got the cash at the Union Bank as soon as they were drawn, and before acceptance; and that this was the case with the two drafts noted for non-acceptance by the plaintiffs, and that Nathan Tyson, the brother of one of the firm, was the endorser upon one of those last mentioned drafts. Said witness further proved, that on the evening of the 23d of April, 1833, after the intelligence was received by Tyson & Norris of the noting of their draft for non-acceptance by the plaintiffs, by the plaintiffs' letter [**27]  of 20th April, Tyson, one of the firm, called on witness, and stated that they, Tyson & Norris, were just about to dispatch a cargo of corn and flour to the plaintiffs by the brig Joseph, and that they had no doubt that upon the receipt of it, the plaintiffs would honour their drafts, and that the noting for non-acceptance might be kept secret; and that witness in reply to Tyson's inquiries then gave him to understand, that if the plaintiffs accepted their drafts, the noting would not injure their credit; and that on the 20th of April, after the failure of Tyson & Norris, witness wrote to plaintiffs, urging them to accept the drafts of 16th and 18th April, which they had previously refused to accept, to prevent attachments being laid on the proceeds of the cargo of the Joseph in their hands.

The defendants then offered in evidence, the said drafts of Tyson & Norris, with Nathan Tyson endorser, which had been cashed by the Union Bank for Tyson & Norris before acceptance, and which had been noted for non-acceptance by the plaintiffs; and also offered in evidence the following accounts current rendered by the plaintiffs to Tyson & Norris of the sale of all the consignments by Tyson [**28]  & Norris to the plaintiffs, including the cargo of the Joseph.

1. Sales of flour and corn received per brig Joseph per account and risk of Tyson & Norris. Sales made 20th and 22d May, 1833, for cash, $ 3,140 01; at 4 months, $ 2,832; off charges, $ 690 39, including freight; nett proceeds $ 5,332 63 to credit of T. & N. Dated Boston, 11th July, 1833.

J. B. & CO.

2. Dr. Tyson & Norris in account with J. Bradlee & Co. Debits from 6th August, 1832, to 10th July, 1833, including balance of interest, $ 33,336 35. All the debits were drafts, except balance from old account, $ 2,488 95; $ 451 74 interest. $ 16,500 accepted between 2d and 16th April, 1833.

Credits from 14th August, 1832, to 10th July, 1833, $ 3,042 99. Sales of flour and corn, balance due $ 3,293 36 on interest.

11th July, 1835. Cr. Sales per Joseph, $ 5,332 62.

3. An interest account from 6th August, 1832, to 10th July, 1833, balance due J. B. & Co. $ 451 74.

The defendants further proved by William Crawford, a competent witness, on their behalf, that he, as the agent of the defendants, Powell and Fiddeman, sold to Tyson & Norris, on the 23d of April, 1833, the corn for which this action [**29]  is brought; that on that day he had called to get payment of Tyson & Norris for corn sold them on the 18th, which he had called for several times before without getting it; that Tyson & Norris then told him they could not possibly pay it on that day, as they had already given more checks than their funds on that day would meet, but that they expected to be in funds next day, and would then pay him: that they then entered into a negotiation with witness about the sale of the corn of Powell and Fiddeman, and wanted witness to sell it to them on sixty days credit, which witness refused to give, but agreed to let them have it on a short credit, the time of credit not being specified; that on the 24th, the next day, the witness sent three times to Tyson & Norris for the money on the sale of the 18th, and they at last gave him a check for the amount, under a promise to deposite it, and that witness accordingly sent it up to the United States Branch Bank in Baltimore, where he kept his account, from which place, without his knowledge, it was immediately, and on same day, sent up to the Union Bank, and the money paid; that the delivery of the corn sold on the 23d April was completed on the [**30]  24th, and the bill of parcels sent round by him on that day to see if it was correct, and was returned with a note for the amount, at thirty-two days, which was in the hand-writing of witness' clerk; and which witness did not see until after the failure of Tyson & Norris; that after the failure, and on the morning of the 25th April, witness went to the store of Tyson & Norris, who told him they could not tell him any thing about their situation: and that they had been obliged to stop because Nathan & J. Tyson had told them that they could not get any more discounts--that witness then asked them to give him back the corn, as they knew they were broken on the 24th, and that Tyson & Norris then said they would return it if they could, and expressed their regret that they had forwarded the bills of lading for it the evening before: and also then told the witness that the vessel was gone; that on the 26th April witness discovered that the vessel was still in the port of Baltimore, and went again to Tyson & Norris and apprised them of it, to which they replied, that they thought she was gone, and Tyson said that he had assisted in getting her out; that soon afterwards, the owners of the [**31]  corn and flour sued out their writ of replevin offered in evidence in this cause, and witness went down to the Point, when the Joseph was under weigh, and was beating out at the fort, with the wind dead ahead; that the witness then went with the deputy sheriff in pursuit of her and overtook her, when the captain drew a pistol and threatened them, but at last proposed to come back to Baltimore to enable the deputy sheriff to execute the writs of replevin in his hands, which was agreed to. Defendants further proved by said witness, that according to the usage amongst sellers of corn and flour in the city of Baltimore, those articles when sold for cash are delivered before the cash is called for, and that the vendor by the delivery does not waive or vary his right under his sale for cash; that he has been in business in the city of Baltimore for fifteen or sixteen years, but does not recollect any case like this; that in his opinion, according to the usage, if flour, &c. is sold for cash, and the cash not paid, the vendor would have a right to take his property back, but that in such a case, if the property was destroyed, or the price fell whilst it was in the vendee's possession it would [**32]  be the vendee's loss; said witness further proved, that during the spring of 1833, Tyson & Norris usually gave two or three cents a bushel more than other purchasers in the city of Baltimore, and that at the time of their purchase of witness on 23d of April, witness understood from purchasers here, that the price of corn was declining to the eastward. The defendants further proved by Keller, a witness previously examined, that at the meetings of the creditors of Tyson & Norris, at which he was present, he never heard any offer made by them to give their creditors any surplus which their property might yield, over and above the offer of twenty cents: but that on the contrary, Tyson, one of the firm, very emphatically stated, that if the offer was accepted, they, Tyson & Norris, must be entirely released. Defendants also proved by said witness, that in sales for flour for cash in the city of Baltimore, it is the general and constant usage for the seller to deliver the flour before the cash is asked, and that the seller is not considered by the delivery to have changed the contract, or to have waived his right to the cash payment under the contract; that a purchaser of flour for cash [**33]  is not bound to hold the flour until the cash is paid, but that whilst it remained in the hands of the party to whom it was sold for cash, witness would consider, that under the usage in the city of Baltimore, he would have a right to retake his property if the party refused to pay the cash after the delivery, unless some credit had been given to the party after the delivery, or the seller had done some act amounting to giving the purchaser a credit.

The plaintiffs then proved by Lloyd Norris, that he was one of the firm of Tyson & Norris, and bought the flour in question for said firm of A. & J. Boggs, that his impression was, that the sale, although entered in their books, and the books of A. & J. Boggs, as made on the 22d, was made on the 19th of April, and that it was to be paid for on the 26th or 29th of April; that he recollects that at the time of sale, when one of those days, but which the witness does not recollect, was, as he thinks, agreed upon as the time of payment; that Boggs stated his reason for wishing to have the money on that day that he had large payments to make on that day, and showed witness his bill book referring to the payments then to be made: that at [**34]  the time of the purchase, neither he nor his partner had the least notice of being compelled to stop payment; that on the evening of the 23d April they received the plaintiffs' letter of 20th April, advising them that the plaintiffs had noted their drafts for non-acceptance, and Mr. Tyson, one of the firm, went to see Mr. Mickle, and apprised him that they were then shipping a cargo of corn and flour by the Joseph to the plaintiffs, and that they had no doubt that the plaintiffs upon the receipt of it would honour their drafts, and that Mr. Mickle then stated to him that the noting for non-acceptance might be kept secret, and that if the plaintiffs accepted their drafts the noting would not injure their credit; that they accordingly continued their arrangements for the shipment by the Joseph, and that on the 24th April she completed her loading and dropt down, and witness on the 25th supposed she had actually sailed: that on the 24th they continued to meet their engagements and gave a great many checks, to meet which, on the morning of the 25th they made a deposite of $ 4,100, and had gone out and borrowed several thousand dollars more to deposite, when they were for the first time [**35]  apprised that the Union Bank refused to take checks on deposite, and he and his partner then after consultation, came to the conclusion that they would be obliged to stop, and accordingly, about 11 o'clock on the morning of the 25th, they resolved to stop, and recalled a messenger who had been sent by them to make a further deposite in the Union Bank, and restored the money and checks which they had borrowed to make said deposite, to the persons from whom they had borrowed them. That until that morning they had not the slightest notion of stopping, and did not know or believe before their failure, that they were insolvent, or that they would not be able to meet their engagements, or any of them; that immediately after their failure they returned some flour which they had bought, and were shipping for Savannah, to the persons from whom they had purchased it, including one hundred barrels which they bought of the defendants, A. & J. Boggs, on the day before their failure, and which they, Tyson & Norris, returned to them; that at the time of their failure their debts amounted to about $ 90,000, and they had large quantities of produce in the hands of the plaintiffs, and of another house [**36]  in Boston to a still greater amount; and that they had drawn upon the latter before their failure for several thousand dollars more than their consignments to them produced, so that they (Tyson & Norris) are still largely indebted to the latter. That the offer of twenty cents in the dollar to their creditors was made some eight or ten days after their failure, and after Mr. Fowler had examined into their condition; and that it was as much, as upon that examination it was thought, their property would produce; that they sustained heavy losses by their shipments to Boston, not less than twenty thousand dollars, and a small loss of two or three thousand dollars by their shipments to New York; and that their whole property, which they estimated at sixty thousand dollars, did not produce near as much; that when the estimate was made with a view to the offer to their creditors, the losses by shipments, &c. were not ascertained, but they made allowance for the probable losses by them; that they had frequently had difficulties before their failure, and ever since the failure of Elisha Tyson, Jr. but had always been able to meet their engagements: that their purchases of corn and flour had [**37]  not generally been made as mere expedients to raise money, although they had sometimes raised money in that way. The plaintiffs further proved by William Tyson, that he was one of the firm of Tyson & Norris, that he had a conversation with his partner, Norris, shortly after the flour in question was bought by him of A. & J. Boggs, in which his partner told him that the flour had been bought on a short credit; that just before their failure witness met Mr. A. Boggs of said firm, and conversed with him in reference to this purchase. Boggs said to witness, "you know, Mr. Tyson, that our cash sales to you mean eight or ten days." Said witness further proved that he bought the corn in question of Crawford, and that it was bought on a credit of thirty-two days; that the cargo of the Joseph was originally destined for Portland, but was shipped to Boston because of the plaintiffs' letter of the 20th of April; and also, that he held the conversation with Mr. Mickle as stated by the witness, Norris; that he never assisted the captain of the Joseph in getting out from the wharf, and did not recollect telling Mr. Crawford that he had done so, and that he never gave the captain any direction about [**38]  getting her under weigh as quickly as possible, or hurrying her off before she was ready to sail; and that in fact on the morning of the 25th, when he conversed with Crawford, he thought she was gone; that he and his partner had no idea of stopping, until the morning of the 25th, when he himself advised it under the circumstances and for the causes stated by his partner, the witness, Norris; that at the time when the purchases of the corn and flour in question were made, they did not believe that they were insolvent or would have to stop payment, and that they did expect, and intend to pay for them according to their contract.

The defendant further proved, that the whole property of Tyson & Norris, which was under mortgage to the Union Bank, was also under a subsequent mortgage in 1827 to secure the sum of $ 6,000 to the wife of Lloyd Norris, which said Norris had received from her estate.

The plaintiff then prayed the court to instruct the jury as follows:

No. 1. That if the jury shall believe from the evidence in the cause, that the sale of the flour in question was made by John & Alexander Boggs to Tyson & Norris on or before the 22d of April for cash, and that it [**39]  was delivered on the 23d, and that from and after the delivery, the Boggses relied on the individual responsibility of Tyson & Norris for the payment of the purchase money, that then from the time of such delivery in the absence of fraud, the property in said flour was vested absolutely in Tyson & Norris.

No. 2. That if the said contract is in law such an one as may be explained by evidence of usage, there is no evidence of any such usage in this case in relation to the said contract, as to give it a different legal operation, than if no evidence of any kind had been offered in relation to the usage. Which prayers were rejected by the court, and the court informed the jury, that the usage offered in evidence, combined with the other facts in the cause, although said usage might not control or govern the legal operation of the contract, yet the same with said facts were evidence, from which the jury might infer, that there was not an unconditional delivery of the goods. That whether there was or was not an unconditional delivery of the goods, was a question of fact under the evidence, for the consideration of the jury.

The defendants excepted to said instructions.

These [**40]  1st and 2d prayers and instructions, are called the additional prayers in the arguments of the counsel.

The defendants then prayed the court to give the following instructions to the jury.

1. If the jury believe that the replevin issued in this cause was served before the completion of the service of the first replevin upon the same property, and while the property was in the custody of the sheriff, that plaintiffs cannot recover.

2. If the jury find that the replevin issued in this case, was for property not jointly owned or jointly taken by defendants, but part owned and taken by Messrs. John Boggs & Co. and part owned and taken by Powell & Fiddeman, then the plaintiff cannot recover in this suit.

3. If the jury believe that the sale made by John Boggs & Co. was for cash, to be paid on delivery, and that such sale was a conditional one, as against the vendor, and that said Tyson & Norris neither paid nor offered to pay said money to said John Boggs & Co. no title vested in them as against the vendor, and plaintiffs are not entitled to recover.

4. If the jury believe that at the time T. & N. made the purchase of Powell & Fiddeman and John Boggs & Co. they [**41]  were largely insolvent, and knew themselves to be so, and concealed such insolvency, and that said P. & F. and J. B. & Co. neither knew of such insolvency, nor had the means of knowing it, then the sale is void; unless the jury believe, that the plaintiffs are bona fide purchasers for value of said property, and there is no evidence of their being such purchasers.

5. If the jury believe that the property sought to be recovered in this suit, was bought and shipped by Tyson & Norris for their own account to the plaintiffs, and that neither the bill of lading nor the property ever came to the hands of the plaintiffs, at or before the institution of this suit, and that no orders for the purchase of said property was ever given to said Tyson & Norris by the plaintiffs, or either of them, the plaintiffs cannot recover.

6. That if the jury find from the evidence the facts stated in the defendants' second prayer, and also, that the said several replevins, of A. & J. Boggs, and of Powell & Fiddeman, were issued on different days, and without any concert between Boggs and P. & F. placed in the hands of said sheriff; that on the 25th of March, the said sheriff went with the replevin [**42]  of A. & J. Boggs to the brig Joseph, and there agreed with the captain of the said brig, that he, the captain, would wait until the next day to see whether some arrangements could be made for the adjustment of said replevin, that on the succeeding day, Powell & Fiddeman issued their said writ of replevin, and placed it in the hands of the said sheriff, and that said replevin being so in his hands, it was ascertained by the sheriff, that the said vessel was getting under weigh, and that the said sheriff took a vessel, and went with J. Boggs and the agent of P. & F. or either of them, in pursuit of said vesssel for the purpose of taking said property under and agreeably to said several replevins, and putting it on board the vessel so taken by the sheriff; that on arriving at the brig Joseph the captain of said vessel, voluntarily proposed and agreed, to come back to Baltimore to enable the sheriff to take the property under said several replevins, and in fact returned, and that A. & J. Boggs never in any wise interfered with the possession of the corn, nor Powell & Fiddeman, or their agent, with the possession of the flour, then the plaintiffs have improperly joined in this action, two [**43]  distinct causes of action against the said A. & J. Boggs, and the said Powell & Fiddeman, and therefore are not entitled to recover.

7. That if the jury find from the evidence, that before the bringing of this action, the defendants, J. & A. Boggs, had sued out their writ of replevin offered in evidence in this cause for the flour for which this action is brought, and the defendants, Powell & Fiddeman, had also sued out their writ of replevin offered in evidence in this case for the corn for which this action is brought; that under said writs, the sheriff of Baltimore county, before the bringing of this action, had seized and taken into his custody the said corn and flour, being then on board the brig Joseph, and that whilst the said sheriff, under and in execution of said writs, was engaged in taking said corn and flour out of said brig, the writ of replevin in this action was issued, and delivered to the said sheriff; and that under said last mentioned replevin the said sheriff, the said property being so in his custody, replevied and delivered the said property to the plaintiffs in this action, or their agent, without ever, in fact, having delivered the said corn or flour to [**44]  the said defendants respectively, under their said replevins, and without any acknowledgment of the delivery of the said flour, by the said A. & J. Boggs, or either of them, or of the said corn by the said Powell & Fiddemen, or either of them, before the said property was so replevied under the writ of replevin in this cause, then the plaintiffs are not entitled to recover in this action.

8. That if the jury find the facts stated in the preceding, the defendants first prayer, except only that they find, that before the execution of the writ of replevin in this action, there was an acknowledgment of delivery by the defendant, John Boggs, as stated by the witness, Murray, then the plaintiffs are not entitled to recover the corn for which this action is brought.

9. That if the jury find from the evidence that, before the bringing of this action, the flour for which it was brought, was obtained by Tyson & Norris from the defendants, A. & J. Boggs, and the corn for which it is also brought, was obtained by said Tyson & Norris from the defendants, Powell & Fiddeman, under several and distinct contracts with said defendants respectively, and that being so obtained, the said flour [**45]  and corn were shipped by said Tyson & Norris on board the brig Joseph, and that whilst there, and before the bringing of this action, the defendants, A. & J. Boggs, replevied the said flour, and the said defendants, Powell & Fiddeman, replevied said corn under their several writs of replevin offered in evidence in this cause, and that the said A. & J. Boggs, never claimed or took possession of said corn under their said replevin, or otherwise, and the said defendants, Powell & Fiddeman, never claimed or took possession of said flour under their said replevin, or otherwise, at any time before the bringing of this action, and that the plaintiffs or their agents, sueing out the replevin in this case, knew the facts above stated before this action was brought; that then the plaintiffs' causes of action, if they have any, against the said A. & J. Boggs, and the said Powell & Fiddeman, for the taking or detention of said corn and flour so obtained, under their said replevins, are wholly distinct, and independent causes of action, against the said A. & J. Boggs, and the said Powell & Fiddeman, and the plaintiffs have improperly joined them in this action, and are therefore not entitled to [**46]  recover.

10. That if the plaintiffs, upon the evidence in this cause, have any right of action for the recovery of the property for which this action is brought, their right and cause of action against the defendants, A. & J. Boggs, is wholly distinct from, and independent of their right and cause of action against the defendants, Powell & Fiddeman, and that the plaintiffs have in this action improperly joined such distinct and independent causes of action, against the said A. & J. Boggs alone, and the said Powell & Fiddeman, and are therefore not entitled to recover."

Which, and each of which instructions, the court (Archer, Ch. J.) refused to grant, but gave and granted to the jury the following prayers, directions, and instructions:

1. If the jury believe the contract for the sale of the goods in controversy was for cash, and that there was an unconditional delivery of the goods to Tyson & Norris, and that there was no fraud in the sale, then the legal title to the goods vested in Tyson & Norris, and it was competent for them to pass the title to the plaintiffs; although they had not complied with the terms of the contract in paying for the said goods.

2. If [**47]  the jury believe the sale was for cash, then Tyson & Norris acquired no title to the goods without the payment of cash, unless the jury should believe that the defendants waived the cash payment by delivery; and if the jury find they did waive the cash payment by delivery, then the title vested by the delivery in Tyson & Norris.

3. If the jury believe that it was the usage and practice among merchants and dealers, when articles of merchandise are sold for cash, to deliver the articles without demanding the cash at the moment of delivery, then the jury are at liberty to infer that the defendants were acting in reference to such usage, and from such usage and the evidence in the cause, that the delivery was not a waiver of the cash payment, and if the jury should find the delivery was not a waiver, then the delivery of the goods did not vest the title in the vendees, if the jury find that they did not make payment for the said goods. When the court in these directions speak of a conditional delivery, and of waiving cash payments, they mean to leave it to the jury to determine whether, in the delivery, the party meant to relinquish his right over the property, or meant to resume [**48]  it in case the cash was not paid; or, in other words, did the defendants, in the delivery, mean or not, to waive any of their rights under the contract of sale and delivery.

4. If the jury believe the contract was made by Tyson & Norris, when in point of fact they were insolvent and unable to pay their debts, and that Tyson & Norris were aware of their situation, and that they had no expectation of paying the sum contracted to be paid according to the contract, and that the defendants, by ordinary prudence, could not have known of the existence of such facts, and that such facts were concealed from the defendants by said Tyson & Norris, and that they did in fact stop payment on the 25th of April, 1833, and did shortly after apply for the benefit of the insolvent laws, and failed to pay for the said goods, then the contract of sale was fraudulent and void, and the delivery passed no title to Tyson & Norris; and in such case, the plaintiffs acquired by the bill of lading and transfer no title to said goods, unless they became creditors subsequent to the delivery of the goods to Tyson & Norris.

5. If the jury believe from the evidence that the sale and delivery of the goods [**49]  in controversy were made as stated in plaintiffs' first prayer, then the title to the goods vested by such sale and delivery in Tyson & Norris, notwithstanding they were insolvent at the time of such sale and delivery, and knew that they were so insolvent, unless the jury shall also find, that at the time of such sale and delivery said Tyson & Norris knew that they were not able to pay for the goods, and that they would not be able to pay for them, and neither intended nor expected to pay for them, and made said purchase, and obtained such delivery, with such knowledge, expectation, and intention.

6. If the jury find the sale and delivery as stated in plaintiffs' first prayer, and that at such sale and delivery, Tyson & Norris intended to pay for them, then the title vested in them in the goods, notwithstanding the said Tyson & Norris were then as greatly insolvent as they proved afterwards to be, and knew that fact.

These prayers were granted, provided the jury believe that the delivery of the goods was an unconditional delivery.

7. That if the jury find from the evidence that before the bringing of this action, the defendants, A. & J. Boggs, being the owners of the [**50]  flour for which this action is brought, sold it for cash to Tyson & Norris, and delivered it to Tyson & Norris under said sale, and that they, A. & J. Boggs, did not intend by said delivery to give credit for said flour to Tyson & Norris, or to waive their right to the cash payment under said contract--that after said delivery Tyson & Norris consigned it to the plaintiffs, on the account, and at the risk of them, the said Tyson & Norris, and that the plaintiffs never purchased said flour from Tyson & Norris, nor made them any advances, nor contracted for them any responsibilities upon said consignment; and also, that according to the general and known usage amongst flour dealers in the city of Baltimore, in sales of flour for cash, it is usual for the seller to deliver the flour before the cash is received or required, and that according to said usage, the seller, by its delivery, is not considered as waiving his right to the cash agreeably to the contract, and that there was no unreasonable delay on the part of A. & J. Boggs after the delivery of said flour in requiring the cash or the return of their flour under said contract, then the plaintiffs are not entitled to recover. When [**51]  the court in these directions speak of a conditional delivery, and of waiving cash payment, they mean to leave it to the jury to determine, whether in the delivery, the party meant to relinquish his right over the property, or meant to resume it in case the cash was not paid; or in other words, did the defendants in the delivery mean or not, to waive any of their rights under the contract of sale and delivery.

8. That if the jury believe, that at the time when Tyson & Norris purchased the corn, for which this action is brought, of Powell and Fiddeman, they, Tyson & Norris, were insolvent and knew themselves to be so, and had no reasonable expectation of being able to pay for said corn; and that knowing their insolvent condition, they concealed it from the said Powell & Fiddeman, and their agents who made said sale, and that Powell & Fiddeman, and their said agent, did not know the insolvent condition of Tyson & Norris, and had no means of knowing it, either at the time of the purchase or at any time before the delivery of the corn to Tyson & Norris, and that Tyson & Norris made said purchase for the purpose of getting possession of said corn without paying for it, and transferring [**52]  it to the plaintiffs, either to secure a previous debt due by them to the plaintiffs, or to protect their endorser, Nathan Tyson, against his previous responsibilities for them by endorsement, and that the plaintiffs never purchased said corn of Tyson & Norris, nor made them any advance, nor contracted any responsibilities for them upon said corn, then the said purchase and delivery of the corn, vested no title to it in Tyson & Norris, and the plaintiffs are not entitled to recover.

9. If the jury believe the goods were purchased on credit, and not for cash, and that the property was delivered them in the absence of fraud, the plaintiffs are entitled to recover.

10. If the jury believe that Mr. Boggs, one of the defendants, agreed to dispense with the actual delivery of the goods replevied by him, and to consider them as delivered, so that the plaintiffs' replevin might be executed in the same manner as it would have been if the replevin by Boggs had been first executed, and the goods delivered, then it is not competent for John & Alexander Boggs, or either of them, to object that the said goods at the time of the execution of this replevin, were in the custody of the law,  [**53]  and not liable to replevin.

11. If the jury find the agreement in the preceding prayer, and that the same was known to the other defendants at the time they signed the receipts of the 29th April for the corn, and that said defendants thereby meant to ratify and confirm what the sheriff had done, and to waive the irregularity which might have existed in serving the present replevin, then it is not competent for the defendants, or either of them, claiming to be the owners of said corn, to object that the said goods were in the custody of the law, and not liable to replevin.

To which refusal of the court to grant the above rejected ten prayers of the defendants, and to the refusal to grant each of them, and to the granting of which prayers and instructions by the court, and to the grant of each of which, the defendants, by their counsel, prayed the leave of the court here to except.

The jury found a verdict for the plaintiffs on both issues, with nominal damages; a motion for a new trial being overruled, the defendants brought the present appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The principle is unquestionable, that property in the custody of the law, cannot be replevied; but where property had been first replevied, and there was evidence to show that the plaintiffs in that suit, had waived the delivery of the possession to them under their writ, and it was then taken under a subsequent writ, the court will not instruct the jury, that the plaintiff cannot recover, if they find that such subsequent writ issued while the property was in the custody of the sheriff.

Whether two defendants can be sued jointly in replevin, for several parcels of property, severally owned, and separately taken and detained? Quere.

But the defect of such misjoinder, (if it be one,) may be cured, by putting the party to his election; or by the verdict of the jury, finding for the plaintiff on one count, and for the defendant on the other.

The court will not instruct the jury, that a sale for cash, payable on delivery, passes no title in the property sold to the vendee, if the cash is neither paid or tendered, where there is evidence of an usage to deliver the property without demanding the cash at the time.

It does not follow that a sale is fraudulent and void, because the vendees at the time of the purchase are insolvent, and know themselves to be so, and did not communicate that circumstance to the vendors, who were ignorant thereof, and known to be ignorant by the vendees.

The party to whom, by the terms of the bill of lading, the property is to be delivered, has the legal title, and is competent to maintain replevin therefor.

If a sale of goods be made for cash, the vendors may, by an unconditional delivery, without a concurrent demand of the money, waive the cash payment; and such delivery unaffected by fraud on the part of the vendees, would pass the property. But if a sale be made for cash, the purchaser will acquire no title without payment, unless that condition be waived by the vendor.

Where goods are sold upon terms of being paid for on delivery, and there is evidence of an usage in such cases, of delivering, without demanding the cash at the time; and the goods so sold are actually delivered without being paid for; it is proper that the court should leave it to the jury to say, whether the delivery was in reference to the usage, and no waiver of the cash payment; or without reference thereto, and unconditional, so as to pass the title.

If parties purchase goods knowing themselves to be insolvent, and without any expectation of paying for them, and in circumstances which preclude the vendor, by ordinary prudence, from becoming acquainted with the facts, which are concealed from him by the purchaser, who shortly afterwards fails, and applies for the benefit of the insolvent laws, the contract of sale is fraudulent and void, and passes no title.

But if under such a sale, the goods are delivered to the purchaser, and he transfers them by bill of lading to a third party, who bona fide, and upon the faith of such transfer becomes his creditor, the title does pass to such third party.

In order to invalidate a sale upon the ground of fraud, it is not necessary that the jury should find, that the purchaser knew he would be unable to pay. It is sufficient, in that respect, that he should be found by the jury to be in insolvent circumstances, and had no reasonable expectation of paying for the goods purchased.

An instruction, founded upon the hypothesis, that the jury may find that certain facts did not exist, of which there was no evidence, is erroneous, as tending to mislead them in forming their verdict.

If one of the plaintiffs in a previous replevin, agrees to dispense with the actual delivery of the property taken under it, and to consider it delivered, so that the plaintiff in a subsequent replevin may take it as if the delivery under the first writ had been consummated, it is not competent for the plaintiffs in such first writ, to object that the property when taken under the second, was in custodia legis.

But the objection that the property is in custodia legis may be made, unless there is an agreement, dispensing with the delivery prior to the execution of the second writ, although the defendants subsequently to its execution, may agree to waive the irregularity, and to ratify and confirm the proceedings of the sheriff.  

COUNSEL:
MCMAHON, for the appellant, contended:

1. That the goods for which this [**54]  replevin issued, were in the custody of the law when they were replevied under the writ in this case, and were therefore not repleviable; and that being so in custody of the law when they were replevied, the agreement of Boggs, and the subsequent receipts of the defendants for the delivery of the property under their respective previous replevins, did not preclude the defendants from making this objection; and especially not as to the corn replevied; and that, therefore, the court below erred in rejecting the defendants' 1st, 7th, and 8th prayers, and in granting their 10th and 11th instructions to the jury.

2. That upon the state of facts presented by the defendants' 2d, 6th, 9th, and 10th prayers, and sustained by the whole evidence in the cause, the plaintiffs had improperly joined in this action two distinct torts and causes of action, to wit, the tort of the defendants, A. & J. Boggs, in taking and detaining the flour, and the tort of the other defendants, Powell & Fiddeman, in taking and detaining the corn. That these torts being thus separate and distinct, and the defendants, A. & J. Boggs, having had no connection with or agency in the commission of the tort of Powell [**55]  & Fiddeman as to the corn, and so vice versa, the joinder of these distinct torts in one action, against the whole four, is a fatal misjoinder, and the court below therefore erred in rejecting the defendants' said 2d, 6th, 9th, and 10th prayers.

3. This arises under defendants' 3d prayer, and under the court's 1st, 2d, 3d, and 7th instructions, and additional instruction No. 2, added to the record by agreement, as to the force of the usage, under which the defendants' counsel will contend, that the court receiving the evidence of the usage as to delivery of goods on sales for cash, and admitting its application on the question, as to the nature of the delivery, as conditional or otherwise, erred in the said instructions as to the effect ascribed by them to such usage if found by the jury, and especially in directing the jury, that the usage did not control the legal operation of the contract, that if found, they were still to find that the parties acted in reference to it; and that even if usage found, and also that parties in the delivery acted in reference to such usage, in still leaving it with the jury to find the delivery conditional or otherwise.

4. This point arises [**56]  under defendants' 4th prayer, and the court's 4th, 5th, 6th, and 8th instruction, all relative to fraud in the sale founded on the known and proved insolvency of the purchasers, Tyson & Norris, by consignment from whom the plaintiff claims; and under this it will be contended, that there is no proof in the cause that the plaintiff was a purchaser of the goods for a valuable consideration, but is shown by all the proof to have merely obtained as a security for an antecedent debt, and that therefore the court below erred in rejecting defendants' 4th prayer, and in assuming in the instructions above mentioned that there was evidence on both sides of the question. And it will also be contended, that the insolvency of Tyson & Norris, at the time of the purchase, known to themselves and concealed from the defendants; and, at all events, if coupled with the additional fact, that they had not at the time of the purchase a reasonable expectation of being able to pay for the goods, was in law a fraud vitiating the sale; and that it was not necessary to make it such, to find the additional fact, that they did not intend to pay for them.

5. This is presented in the 5th prayer, and relates [**57]  to the plaintiff's title to the goods replevied at the time of suit brought. And the point is, that Tyson & Norris, having purchased and shipped them on their own account, and at their own risk, and not under any orders from the plaintiff, and the plaintiff at the time of suit brought not having received the property, nor even a bill of lading for it, he, the plaintiff, had not title to maintain the action in his own name.

In argument, I propose to consider the 1st, 7th, and 8th prayer of the defendants, with the 10th and 11th instructions given by the court. An erroneous practice has crept in, in rejecting prayers and granting instructions. Alternative propositions are often overlooked, and the jury thereby misled. The inquiry here is, was the instruction granted proper, was the 8th prayer properly refused. The case looks like contempt of the process of replevin. The plaintiffs were agents of Tyson & Norris. The property was shipped on the faith of expected acceptances. There was an implied pledge of acceptance of drafts, never performed. The plaintiffs claim and hold on for antecedent debts. They are not purchasers for a valuable consideration. They had no better equity than [**58]  Tyson & Norris have, and they are covered also with a breach of faith, in refusing to accept the bills drawn. Tyson & Norris could not maintain replevin; they could not institute the second replevin, even after delivery of the goods under the first. They could not reclaim the property; many States have settled this. The first action of replevin would have settled the right, and the property is under the protection of the law, by delivery under the first writ. The answer to this proposition, I suppose, is, that Bradlee is another party, with distinct rights from the defendant in the first replevin.

Then when does the plaintiff's right commence? In all actions, the plaintiff must have a right at common law, and when the liability of the defendant occurred, after the writ issued, the action was not maintainable. This is true as to torts and trespass prematurely brought. The replevin here only involves title. It is co-extensive with trover. Its elements are property in plaintiff,--detention by defendant, and if before suit, no detainer, then no right to sue. A subsequent detainer will not do. The property sold to Tyson & Norris was by them shipped, was brought back to the wharf by [**59]  the Boggs, and then for the first time delivered to the defendants. The possession of the officer is the possession of the law, and not of the defendants. The defendants acknowledged no possession until delivery to them; this was on the 27th, and had no existence, when the action was brought on the 26th. The custody of the law remains until its incidents are performed. The duty of appraising is one of them. The appraisement of the sheriff is an important part of his duty. No appraisement had been made under the first writ, when the property was taken under this writ. Boggs' act is relied upon to relieve the sheriff from this duty. He had no such power, and his consent to that effect is invalid. Powell & Fiddeman were owners of the corn. Boggs was owner of the flour. Crawford was agent for the corn. The agreement was with Murray, the deputy sheriff, and Boggs, alone. It could not affect the corn. The receipts are from both parties.

The 11th instruction if it assumes that the agreement with Boggs was made with the knowledge of all parties, is not founded on evidence. Motives of agreements are ascertained by reference to the parties; that with Murray merely related to Boggs' flour.  [**60]  

Has the plaintiff a right to take advantage of this constructive delivery; can he who has done wrong put one writ in conflict with another? can he cure his wrong by adopting the agreement to waive delivery? It was wrong in the sheriff to make it; he cannot thus put the defendant in possession of property, for the action of this replevin. This agreement cannot operate as an estoppel; estoppels in pais are reciprocal, and are so from the agreement of parties. This cannot apply here. Agreement was between the sheriff and one defendant; it cannot estop the plaintiff; it was not reciprocal as to him; the sheriff was not the agent of the plaintiff. This is not a technical estopel; the object of the agreement was merely to shield the sheriff from responsibility for a violation of his duty.

The 2d point involves the 2d, 6th, 9th, and 10th prayers of the defendants.

The plaintiffs have improperly joined two distinct parties. It is a misjoinder of rights. The torts were separate. This is a fatal misjoinder.

The 6th prayer presents all the material questions.

Distinct owners of corn and flour--distinct sales--each in the first instance took out a distinct replevin for [**61]  a different part--neither claiming an interest in the property of the other, and these facts known to the plaintiffs in this action.

Can the plaintiff unite two different claims against different parties in the same action?

Test this inquiry by analogy to trover and trespass. Replevin in a limited sense is like both. Trover for damages--replevin for the thing. But the rules of joinder are the same. Where there must be different verdicts and judgments, the claims cannot be united. Mixing of claims might confuse. Multifariousness is to be avoided. Misjoinder of persons is error; this is applicable to contracts, though not to torts. Misjoinder of persons in tort is not fatal. But this is a misjoinder of causes of actions and persons--both here are wrong. One writ cannot perform the appropriate duties of two suits. Distinct torts cannot be joined in the same cause. Gould Plea. 209. 1 Chit. Plea. 98. 1 Bac. Abr. 54, 55. Several distinct causes of action cannot be joined in the same writ. Jackson vs. Hagen, et al, 20 John. 438. 17 Mass. 185, 187.

If the position of the parties here were reversed, and the defendants had sued jointly, the action could not be maintained on the [**62]  proof of the goods merely being in the same ship. 1 Co. Litt. 145. 1 Chit. Plea. 73, 74, 187. Sprague vs. Kneeland, 12 Wendell, 164. The effect of such an action on the party wrong joined, as a witness in the cause, is a material consideration. Boggs could not be a witness for Powell. This practice breaks down the rules of evidence.

Then how is the verdict to be rendered. It must be general, not for Boggs for the flour, and Powell for the corn. There can be but one verdict and judgment. Its effect on the damages illustrates the rule.

The 3d point relates to the 3d prayer, and the 1st, 2d, 3d, and 7th instructions, and the additional instructions on the subject of usage. Delivery is an equivocal act, and it was left to the jury to determine its effect. But the evidence was of an usage known and uniform, and this usage enters into the contract. The usage establishes that the lien was never surrendered. The jury finding the usage, cannot find other than a conditional delivery. Delivery, in the absence of proof, corresponds with the usage. The jury can make no inference, in opposition to usage; without proof the usage controls. The usage established, the parties acted under it,  [**63]  hence the delivery must have been conditional, but instead of that as a legal conclusion, it is put to the jury, whether there was a waiver of the lien or not, they were not directed to follow the conclusion of law. The court erred in treating the usage as evidence, after it had been established.

The 4th point relates to the 4th prayer, and 4th, 5th, 6th, and 8th instructions.

Fraud in the sale. It vitiated title in the purchaser; in the hands of Tyson & Norris; and in the hands of the plaintiffs, who did not take it for value, but for antecedent liabilities.

The 4th prayer proceeds on the ground of defect in the evidence, and is defective in assuming the plaintiff to be a subsequent creditor, of which there is no evidence. There were no advances after the shipment of this cargo. It left the jury to assume another equity than that which Tyson & Norris had. It gave the plaintiffs the advantage of being creditors in the transaction.

The 5th point relates to concealment of a fact in the knowledge of the purchaser not known to the vendors, and of which the latter had no means of knowledge. This is a fraud which vacates the sale.

The court below said that insolvency,  [**64]  and the concealment of it when known, and the inability of the vendor to discover the fact by ordinary prudence, is not sufficient to constitute a fraud in the sale. Tyson & Norris knew of their insolvency; the course of their trade informed them of it; they were purchasers at a high, and vendors at a low market. Every step made their affairs worse. "In England the wind raises the kite, but in this transaction the kite raises the wind." The corn purchased was to be turned into gold at a known loss. They received it after knowledge of insolvency, a circumstance to be considered in connection with fraud. I do not impute fraud as the result of simple insolvency where unknown, or not concealed by a purchaser; but if he knows his insolvency and conceals it, this is evidence of fraud. Fraud is equally perpetrated by the statement of a falsehood, or suppression of a truth. The inquiry is, is the matter stated or suppressed, material to be known; under the circumstances here belief of solvency in Tyson & Norris, was implied. If Tyson & Norris had stated they were insolvent, who can doubt the result? The law exacts facts peculiarly within the knowledge of the purchaser. He is bound to disclose [**65]  such. His own condition and private affairs of which he had knowledge. This case is clear of all difficulties. The fact of insolvency cannot impeach the sale, but upon known insolvency and concealment, the contract was vitiated. I do not depend on the fact standing alone, nor affecting third parties. It is between buyer and seller. And the rule is more just and imperative, as between them. They should not be permitted to retain property thus acquired; and the law, in the absence of decisions to the contrary, should not sanction it.

But let us concede that the rules of law require us to go further, and establish that Tyson & Norris had no reasonable expectations of being able to pay their debts. Admit that this is to be added to the principle. The expectation, to aid the purchaser, must be a reasonable one, not vain and ridiculous. Hawse vs. Crowe, 21 Serg. and Low. 477. That a party never intended to pay is a legal conclusion from known insolvency; the party having no reasonable expectation of being able to pay. The presumption of law not to pay, follows the want of a reasonable expectation of being able to pay.

The last point in the statement refers to the shipment being [**66]  for Tyson & Norris' own account. There was no order for the corn or flour. No title in the factor. No muniment of title with the plaintiff at the time of suit brought; no delivery, actual or symbolical. Can a factor maintain replevin before delivery, actual or constructive. The cases decided, are where the factor had what was equivalent to delivery before the action was commenced. Here, the suit was brought in the name of the plaintiff before he could have known of the shipment of the goods. The right of lien does not attach until reception of the bill of lading. Walter, et al vs. Ross, et al, 2 Wash. C. R. 284. Ryberg & Co. vs. Sneel, Ib. 403.

R. JOHNSON, for the appellees, contended:

1. That there was no misjoinder of parties defendants in the replevin.

2. That, from the evidence in the case, the court were right in leaving it to the jury, as they did in their 10th instruction, to find, that when the replevin in this case was served, the defendants had agreed to consider the goods seized under their replevins as in fact delivered, and thereby that they were not at liberty to set up the want of actual delivery, as a formal objection to the regularity of the service [**67]  of the present replevin.

3. That upon the questions of fraud and conditional delivery in fact, or according to usage in such sales, the court in their several instructions to the jury pronounced the law of the case, and consequently, that there is no error, for which the judgment can be reversed, in the rejection of either of appellants' prayers on those questions.

I insist that the law, as actually announced by the county court to the jury, was correct.

The 2d point of the appellant relates to a question of form. It admits title, and a separate right of action in each defendant in the replevin. In trespass, this produces no non-suit. There may be different judgments. This doctrine, though not denied, is only applied where the trespass is in its nature incapable of being committed jointly. It is not an inquiry into the fact.

In 1 Chitty, 98, there are some torts which, in legal consideration are not several, as verbal slander. The action must be against one, alone. But if trespass may be committed by two, and the proof confines it to one, it is only followed by a partial failure of the plaintiff. If the analogy is followed, the tort here might unite all the defendants [**68]  in the wrongful taking and detaining. So all the plaintiff can lose, is as against the one, not concerned. But even in cases when two persons ought not to be joined, the 2d, 9th, and 10th prayers, which relate to these questions, ought not to be granted. These go to defeat the action, which is not sanctioned by Chitty. See the effect of a joinder in slander; the defendants may demur. But the objection may be avoided by a non pros. or a release of damages as to all, but one. And all the court did here, was to refuse to declare that the plaintiff was not entitled to recover against some of the defendants. In reason there is no objection to this procedure.

The counsel has assumed a title in these defendants which the verdict denies. The custody of the law is not in issue here, but the objection relates to a case where, the undisputed owner is plaintiff, and several set up title; their claim is to defeat the whole action. It is founded on the existence of too many defendants.

The property was shipped on the 24th. On the 25th a bill of lading was forwarded to the plaintiff, and for value. This title is good against all the world but Tyson & Norris, it being for previous advances.  [**69]  

With reference to the case in 12 Wendell, 162, the defence arising from the misjoinder, looks only to the extent of the judgment. It was not a defence to the action. The case was replevin for a horse against two, who had taken him at different times. The same doctrine is maintained in Gould on Pleading. The rule depends not on the fact, but on the character of the wrong. As it is true that the action of trespass will lie against more than one, and as the innocence of one, in fact or in law, is not a bar to the action, what objection can there be when the ground taken in defence assumes the guilt of the defendant, and simply denies responsibility to the whole extent of the plaintiffs' demand, to permit the action to proceed? If one entirely innocent may be united in the action with a guilty party, without defeating the action, why may not two, in part guilty, be united? The objection is grounded upon the distinct motives of the two defendants in bringing back the vessel; each wanted the property he had sold. Every agent has a different motive in the transaction--sheriff, laborers, and lawyer; but if they all united, they are all responsible for their act. The act of one, is the [**70]  act of all. It cannot be that where several entering into a house, claiming and taking away separate portions of its contents, all are not responsible with reference to the party injured. If the refusal of the defendants' prayer was correct, the instruction given on that head was also correct.

Upon the 1st point, and 1st, 7th, and 8th prayers, and 10th and 11th instructions, after stating the nature of the objection, the counsel denied that this was the replevin of Tyson & Norris. He said it was not denied that cross replevins might be maintained. Then was the last replevin, in fact the action of Tyson & Norris? Who were Tyson & Norris? Who the plaintiffs? The plaintiffs, from 1832 to 1833, were the consignees of Tyson & Norris for the sale of produce, and accounted for proceeds to a large amount. It was the practice of Tyson & Norris to draw on the faith of the shipment, and their bills were accepted to enable them to procure advances. Plaintiffs came under acceptance to too large an amount. They refused further to accept, and in consequence this shipment, destined for another port, was consigned to the plaintiffs. The bill of lading was sent them under the hope they would make [**71]  further acceptances, and of drafts which they had previously noted. The bills of lading went on, and the vessel sailed from port. The question of ownership is as between plaintiff and defendant, and in this point Tyson & Norris are admitted to have no title.

A bill of lading is a negotiable instrument. Lickbarrow vs. Mason, 2 Term Rep. 63. And the only escape from the effect of the bill of lading, or the claim of the plaintiffs, arises from their insolvency. The bill of lading is a muniment of title; it is an infallible muniment, except as regards the vendor's right to stop in transitu. This right is personal to the vendor. A tort-fesor cannot protect himself by this privilege; it is founded on equity with reference to ownership; it is intended to protect the vendor against the vendee. It ceases with the possession of the vendee. Walter, et al vs. Ross, et al, 2 Wash. C. C. R. 294. Ryberg & Co. vs. Sneel, ib. 403.

An assignment of a bill of lading, to cover previous advances, is absolute, and defeats the right to stop in transitu. Schimmelpennick vs. Bayard, 1 Pet. S. C. 386. Conard vs. Nicoll, 4 Pet. S. C. 291. Wood vs. Roach, 2 Dallas, 180. Woods vs. Roach & Crawford, 1 [**72]  Yates, 177. Summeril vs. Elder, 1 Binney, 106. Stor. Abbott, 308, 388. Owings & Cheston vs. Nicholson & Williams, 4 Har. and John. 107.

We do not deny that goods in the custody of the law are irrepleviable; still the right of property may be controverted in another suit, as in trespass or in trover. The legal custody does not take from the paramount owner the right to recover the value of his goods pending the custody, or after that has terminated, the specific goods from a third party. The objection prevents all interference with the goods so long as the custody continues, and the reason is, that if it were not so, the particular controversy in which the goods were taken, could never be settled. It is the privilege of the first plaintiff and the officers of the law, and to give the first plaintiff the fruits of his action. If only the true actual owner could maintain replevin, the courts would suffer it to proceed, but other persons may, as against wrongdoers. It is, therefore, a privilege which the plaintiff, in the first action, may waive, as any private right might be waived. Then did the defendants waive this privilege. There was no other right in the defendants in the first [**73]  replevin than that of stoppage in transitu resulting from their consignees' insolvency. Those defendants were Tyson & Norris, who do not set up that right. They came forward as the plaintiffs' witnesses, and concede the plaintiffs' right to the property. This property being parted with by the sheriff, is not in the law. The legal custody had ceased. The custody under the first replevin was for the benefit of the plaintiff in that writ, and to enable the officer to do his duty; and the plaintiff may waive it.

Replevin is to try title; it is co-extensive with trover, and may be brought in all cases by the owner, except where the goods are in the custody of the law, or where there are cross replevins.

There was then a waiver of the custody under the first replevin. Was there sufficient evidence of the fact? This inquiry arises on the 10th and 11th instructions. Was there any evidence tending to prove this waiver? See Murray's proof. The receipt for the goods demonstrates the waiver. It was dated on the 29th, the goods were delivered to the plaintiff in the last replevin, on the 27th. Boggs' replevin issued on the 25th, Powell & Fiddeman's on the 26th, the plaintiffs' on the [**74]  27th. The defendants' on the 29th sign a receipt for a delivery of the goods to them. There was no delivery in fact. Then the receipt must be a waiver of the right to demand it. The receipt is demonstrative evidence of this. It is no answer to this that the appraisement was still to be had. It would not now be competent to these defendants to set up the want of an appraisement, having renounced that benefit by a surrender of the property. But with reference to these defendants the appraisement has been made.

Then as to the 11th instruction. There being two replevins in fact by the receipt, Boggs in effect agreed to look to the bond in this case, instead of retaining the property, and vindicating his rights under the first writ. Having agreed for value not to set up the irregularity of the taking under the second writ, he cannot now insist on it. No great principle of public policy or morality is at stake here. The defendants were competent to surrender. They could have quashed their writ, and may waive the custody under it, and for the first time at the trial they are not competent to set it up as an answer to the plaintiffs' demand, and to the merits of the cause. At least the [**75]  receipt is evidence of an intention to waive, and we are entitled to its protection.

The appellant's 3d point includes the 1st, 2d, 3d, and 7th instructions, and the additional instruction added to the plaintiffs' 2d prayer below, and the defendants' 3d prayer.

It is here material to remark, that Boggs' flour was sold for cash, and Fiddeman's corn on credit. Did Boggs, by delivery of the flour to Tyson & Norris, intend to vest the title in them? By a general delivery of goods upon a sale and nothing said, the title vests in the vendee. Chapman & Schoolcraft vs. Lathorp, 6 Cowen, 110. 6 Pick. 162.

Did the usage change the character of the question so as to make the court's act erroneous? There is no difference between the effect of a contract expressly or by usage, for cash. Independent of usage title is not vested, unless by delivery, it was so intended. Now, waiver or no waiver of the cash payment, with reference to title, is a question of fact to be settled by a reference to all the circumstances prior and subsequent to delivery, and not by delivery only. The usage does not prove that the cash payment may not be waived. The only effect of the usage is to rebut the [**76]  inference arising from the delivery, and to show that title still remained in the vendor. The objection argued is, that finding the usage, then no intent to give credit existed, without any reference to other circumstances. The flour was bought for shipment, and the vendees known to be shippers. Boggs is silent. No act done to get back the property, and the proof is, that the title is not to depend on the payment of the purchase money. See Tyson's evidence. If the title may be waived, and permitted to vest, notwithstanding the cash payment is not made, then the jury was the proper tribunal to determine whether the fact existed. Suppose a usage existed Cui bono? cannot the vendor contract without reference to it? Found or not found, the usage is immaterial, if the evidence shows as it does here, that he did not contract with reference to it.

Defendants' 4th prayer, and 4th, 5th, and 6th, of the court's instructions. Fraud or no fraud in the original purchase. What is the fraud which will vacate the contract of sale in personal property? Can it exist independent of design? or if when concluded, there is no intent to deceive? Such a sale is not tainted, because, in fact there was [**77]  no deception. Fraud, of which the law will take cognizance, exists not, independent of a mental reservation to deceive. If the party intended to act fairly, no charge of fraud can be sustained in human contracts. Conard vs. Nicoll, 4 P. S. C. R. 295. To constitute fraud there must be contrivance and design to deprive a party of his rights. We are not to confound evidence of fraud, with the fraud itself. The evidence of contrivance with the contrivance itself. Hickly vs. The Farmers and Merchants Bank, 5 Gill and John. 377.

The evidence is clear, that an intent not to pay, did not exist at the time of the purchase, and the facilities enjoyed by Tyson & Norris, show that they had grounds of belief that they could pay. Checks on the Union Bank, and drafts on Boston, were a present means of payment, and hence the general insolvency of the house not material. If they intended by the shipment to pay for the purchase, no fraud in law or morals; and the court said if they intended to pay, no fraud. The jury have found they intended to comply. It is therefore a question of evidence. The expectation not to pay, is evidence of an intent to defraud, but mere expectation is not per se the [**78]  fraud, but the intent; the design not to pay is the fraud which vacates the sale. An intent must depend on the mind of the party where it was lodged. Insolvency per se is not conclusive evidence of fraud. But it is said it must not be concealed; it must be disclosed; that it was not disclosed, which is a fraud, as alleged. Mere silence on the subject of insolvency, without any intent on the part of the purchasers not to pay, would have satisfied the prayer. Noble v. Adams, 7 Taunt. 59. False pretences are necessary to constitute fraud to vacate a sale of goods. 1 Gren. 376.

Defendants' 5th point relates to 5th prayer. It supposes an actual possession of the property, or an advance on the faith of the shipment was necessary, to enable the plaintiffs to maintain replevin.

The account current proves that on the 25th of April, at the time of the transmission of the bill of lading, Bradlee & Co. had advanced $ 3,293 36. The last draft was on the 16th April; then came the advice by letter, that the draft was noted. Tyson & Norris reply, that they still expected the acceptance or payment of their draft, to sustain that expectation and induce Bradlee & Co. to accept, made the shipment [**79]  per the Joseph.

As to Tyson & Norris, the actual shipment of the cargo put it out of their power to stop the goods in their transit to Boston. No other person could interfere but Tyson & Norris, and they only in the execution of that particular right. Ryberg & Co. vs. Sneel, 2 Was. C. C. 404. The acceptances by Bradlee were on the faith of shipments made and to be made, but if not so, Tyson & Norris acknowledged they had drawn too close; confessing that they shipped these goods to make that debt good. Then the effect of a shipment to pay an antecedent debt, is, that the right to stop in transitu is gone.

MAYER, for the appellees, contended:

That to nullify a cash sale for fraud in the vendee, there must be a design and intent not to pay. There was no fraud without a design to prejudice. In the common law sense of fraud you must find design to injure. Earl of Bristol vs. Wilsmore & Page, 8 Serg. and Low. 146. Cases resting on the policy of the law are decided on other grounds. It is not sufficient to show a case of aggravated insolvency, nor how clearly the vendee may know his condition; yet if no intent to deceive, the property vests in the purchaser. Hopes spring from [**80]  new contracts--new profits may discharge old debts. Experience demonstrates this. Many cases of desperate fortunes are restored by new operations of skill, sagacity, and enterprize. Men constantly raise themselves superior to ancient embarrassments. To vacate their contracts an intention to deceive must exist. And why should it not be so? A purchaser obtains an equivalent for the claim against him in what he buys; that furnishes him with the means of payment. Suppose a man begins the world without a dollar, he lays the foundation of future fortune in a purchase. Are his acts void, because of current liabilities for his subsistence? His dearth of means is not to avoid his contracts. Nothing is more unjust than to make conscious insolvency sufficient per se to nullify purchases. Such a principle would lead to the most pernicious consequences; but the law does look to the bona fides of the transaction. If his intentions are not dishonest, his contracts are valid, and may lift him above trouble. If intent must be found, and so are the cases, the principles ought not to be expanded. Here were well founded expectations of ability to retrieve affairs. Honest objects and expectations; intervening [**81]  rules of a bank with which they previously traded stopped them. Expectations are equivalent to intentions; but if distinct, does it become necessary to prove both? The rules contended for on the other side would lead to confusion, Parties ought to look well to the situation of those they deal with, and the court below has not invaded the standard decisions on such subjects.

Actual possession is not necessary to maintain trover. Cases of special property have sustained it. Fowler vs. Down, 1 Bos. and Pull. 46. At common law actual delivery was not necessary to a purchase for value, or in discharge of a precedent debt.

Our recording laws admit that delivery of a chattel is not necessary to vest title in a purchaser.

The evidence shows that the defendants were joint trespassers; they were together; Boggs on board, Fiddeman took possession. The sheriff was excused. The use of process did more wrong; it was an abuse. They took all the plaintiffs were entitled to; and the argument now demands an apportionment of the wrong between tort-fesors. Isley, et al vs. Stubbs, 5 Mass. 283. The wrong always relates to the original taking, and its being done under color of the replevin,  [**82]  increases the wrong and trespass. Misjoinder here is merely matter in abatement.

In replevin the plaintiffs may recover part. There may be judgment as against one defendant for one part, and against another defendant for a different part Defendants may sue for several parts. But here there was one original joint taking. Plaintiffs are not to be defeated for a misjoinder; they had had a right of election between the defendants.

MCMAHON, for the appellants, in reply.

I propose to consider:

1. Whether the plaintiffs in the replevin had any right.

2. The property of the defendants.

3. Was the writ properly served?

4. The question of delivery.

5. The fraud in the sale.

1. Has the plaintiff a title to maintain the action of replevin?

Replevin has taken the place of trover. It involves title to possession. Injury done to a possessory right. What is the character of the right set up by the plaintiffs?

Tyson & Norris were general owners; that is conceded. The title of factor is either for a general lien, or it is a special title in the goods. Factor, with a special property. 2 Wm. Saund. 47, (a) note. Mere possession will not maintain the [**83]  action. A mere factor, without interest, cannot sue. The special property is a right to keep the goods for some purpose of the owner. A mere intent to vest property does per se vest it. It must be followed by actual or constructive delivery. Either is sufficient. If the bill of lading was once in his possession, that symbolical delivery was sufficient. In this case the plaintiff had neither possession of the bill of lading, nor the property. There was a mere intention on the part of Tyson & Norris to give the plaintiffs the property. Walter, et al vs. Ross, et al. 2 Wash. C. C. 283, 290.

There was a constructive condition to perform an object never accomplished. See the correspondence. The title was not to vest, unless the bills were accepted. They were not accepted. Hence the title, the right remains. 3 Pet. C. C. R. 112. Walter, et al vs. Ross, et al, 2 Wash. 295, 296. Ryberg, et al vs. Sneel, 404. Abbott. Ship. 206, (No. 1.) Hotchkiss vs. McVickar, 12 John. 406, 407. Before bill of lading received how could Bradlee have disposed of the property? Tyson & Norris' general property remained; the special property never attached. Coxe vs. Harden, 4 East. 217. If the plaintiffs here [**84]  got a right of lien for antecedent advances without acceptance, they get a right without any corresponding consideration or value.

2. The inquiry here is, where two took distinct parcels of property without any union or concert, can they be united in the same action?

Boggs went for his flour, takes it; never touches the corn. Why is he united with Powell? There was no joinder in the caption of the property. A mere juxta-position of the agents. This does not make joint trespassers. The prayer says there was no joinder, and if the jury so found the fact, then what is the law? The prayer assumes there was no joinder, and if the jury so found the fact, what is the conclusion of law? Gould Plea. 204, 209. Sprague vs. Kneeland, 12 Wendell, 164.

Where the joinder is good in law, and erroneous in fact, when is the objection to be taken? I contend it can only be taken on the evidence. When the proof is offered, the time has come to raise the objection. Then as to the form of taking the objection. Is it matter of election or not? How is the election to be exercised in a case where two are sued, and you prove one cause of action against one, and another cause of action against [**85]  another? Two cases in fact. Then who is to elect after the jury is sworn? Who is to be turned out? The right is in the plaintiff. Suppose he exercises it, and takes a verdict for the corn, and loses the cause as to the flour. What is the effect of that verdict? You cannot non pros. as to part. Suppose the plaintiff had declared on the fact. Demurrer would have defeated the suit. The plaintiff cannot proceed until he aids the defect, and dismisses his suit as to one.

MAYER, for the appellees, at this stage of the cause, said:

In answer to the objection of a misjoinder, that however it might apply to the plea of non cepit, it did not apply to the plea of property. Replevin was a proceeding in rem except as to the plea of non cepit. Wilkinson on Rep. 50. 6 Law Lib. 18. There was no judgment for a return on the plea of non cepit. It was only on pleas disaffirming the plaintiffs' right of property, that a return is awarded. The caption and detention, and question of property, are distinct. When property is not put in issue, although the defendant may succeed on the plea of non cepit, he is not necessarily entitled to the property. A return depends on the justice of the defence.  [**86]  The judgment is rendered according to the reason of the thing and justice of the claim, and is moulded accordingly.

Under the bill of lading and letters, it is denied that our property would not enable us to maintain the action. Haille vs. Smith, et al, 1 Boss. & Pull. 563. Griffith vs. Ingledew, 6 Serg. and Raw. 429. Although goods are at the risk of the consignor, still the right to recover possession of the goods is in the consignee. This is the effect of the bill of lading in the modern mercantile law. Morrison vs. Gray, 9 Serg. and Low. 405. 3 Camp. N. P. 6 Bac. Ab. 73.

MCMAHON, for the appellants, resumed the reply.

3. Was the writ properly served? and in connection the defendant was entitled to his prayer, and the instruction as given on this head was erroneous.

The time of the agreement was considered doubtful, and the prayers presumed:

1. As if the agreement was made after the delivery.

2. As if made prior to the delivery.

Then under the first view, if the goods were in the custody of the law, the replevin was not maintainable.

Then on the supposition that the agreement was made after the service of the writ. The court below, seemed [**87]  to have admitted that if there were no agreement, a priori, the action was gone. If that is the law, have the court below granted our prayer as they ought to have done? Is it covered by the instructions? In such a case the instruction ought expressly to cover the ground of the rejected prayer, and not leave it to inference. See 10th and 11th instructions.

The object of that principle which declares that goods in the custody of the law shall be held sacred, is to prevent all interference with the possession--"all hands off"--until the office of the law has been performed, as to the process under which it was taken. In this cause the writ is to seize property--appraise it--place that on record as evidence of the valuation. Then the property is to be delivered over to the plaintiff. This is the public policy, and none can interfere with it. It is for the benefit of plaintiff and defendant. Then can one party waive the exactions of duty in which the other is interested? As to an appraisement for the defendant, the plaintiff cannot waive it. The new replevin let the old action go on. Dispensing with the appraisement, the defendant might remain remediless as to the value. Many practical [**88]  disadvantages readily present themselves for illustration.

As a general rule it cannot be contended, that the plaintiffs and the officer may agree to waive the duty of the officer. The counsel feeling this, put Tyson & Norris on the ground of co-labourers with the plaintiffs--as abandoning the property to them by the plaintiffs.

The office of the writ can only be waived by the agreement of both parties, and which must be at the time of service, and a subsequent agreement will not avail here as it leaves the property in the custody of the law, at the period of the execution of this writ.

Then as to the corn. Wilson, the sheriff, executing the replevin of the corn, made no agreement. Murray made one as to the flour. Boggs had no power over the corn which was in custody at the time of the service of the 2d replevin. Is the custody as to the corn waived, and how? The act of waiver it is contended, is in the written receipt. The whole act is in writing. The paper is the evidence of the waiver, and the court, by the 11th instruction, have put the construction of the paper to the jury. This was error. The construction of the receipt was for the court, who should have determined [**89]  what the signers intended by it. It was for the court to say, waiver or no waiver.

Under what circumstances do the court say it may operate as a waiver? If combined with parol evidence, that with the paper, might be left to the jury. But in such case the court should have instructed the jury what circumstances were necessary to constitute the receipt a waiver; the preliminary facts on proof of which the paper might operate as a waiver. The knowledge of Boggs' flour being receipted for, could have no influence on the rights of the other parties. The evidence is not put on the ground of an agreement made for Powell and confirmed by him, but because another made an agreement and Powell knew it, it is inferred that Powell designed to waive his right. When an irregularity of procedure is to be waived, it should be known, and the waiver predicated on it. Here, then, is no evidence that Powell knew there was irregularity. The receipt and parol agreement were made with Boggs, it has no reference to any irregularity; the agreement might or might not apply to that; the jury, therefore, should have been instructed to find the knowledge of Powell of this irregularity. Waiver is an intentional [**90]  act, founded on intent, as that a party made a waif of his right. He knew he had it--threw it away--no such fact put to the jury.

The service of a writ on property in the custody of the law, is a nullity; it is a void act, and so the court will ever regard it. 3 Chitty Prac. 522. An irregularity may be waived; a void act cannot be waived. A nullity is some essential defect in procedure. Where the law has prohibited an act, it is an essential defect to proceed against it. A step in a cause, inconsistent with the idea of antecedent proceedings, being a nullity, is no waiver of objection of that ground where it exists.

What is of the essence of waiver? Implied waiver is an act done inconsistent with that which is insisted on as an objection. The objection is, that the corn was in the custody of the law, because it was not delivered to Powell. There is merely a receipt for the corn on the 29th April. This is no waiver of the misconduct of the plaintiff in suing forth his writ on the 26th April. At least the receipt is an equivocal act, and to make it operate as a waiver, the plaintiffs who relied on it in that character, should have furnished the additional proof.

Upon the [**91]  question of fraud, I contend, that an assignee will be regarded as the vendee, except where the former has given value. Where the property fraudulently acquired is surrendered in payment of a precedent debt, it will not avail the assignee as against the injured party. Root vs. French, 13 Wend. 570.

In such inquiries nice questions of insolvency ought not to be entertained; but a man engaged in business, known to himself to be insolvent, to such a degree that the vendor would not trust him, does commit a fraud in purchasing for cash. If non-payment is the sole fraud, the intent to pay may give the rule; but such intent is not the sole fraud. It is not the only evidence in this case.

In a contract of sale, as between vendor and vendee, good faith must be observed in the making.

Whatever good faith requires to be disclosed, is as objectionable in law and morals when not disclosed, as to mislead.

The exceptions are, where the grounds of knowledge are equally to both parties, what is called the judgment of the quality of an article purchased.

Would knowledge of insolvency be likely to influence parties in making contracts? Is it material? Is there no obligation [**92]  to disclose a fact which would prevent the contract? Concealment is wilful withholding. If a party misrepresents, the courts will vacate his acts. Fraud is the suppression of truth. What honesty demands is to be disclosed; non-disclosure is suppression. The decisions have not shut out these principles, and commercial policy cannot sanction opposite doctrines. Chapman & Schoolcraft vs. Lathorp, 6 Cowen, 116, 117. Lupin, et al vs. Marie, 2 Paige, 172.

The instruction of the court below looks to the non-intent to pay at the formation of the contract, as the only ground of fraud. I deny this principle. The meditation to defraud, is not always necessarily material. Consequences which are fraudulent, are sufficient to vacate; they work a fraud independent of intention, as where an insolvent, without any reasonable hope to pay, contracts. Will any one say that is not void? He has not a plank to swim on; no reasonable expectation to pay. Reliance on friends will not do. In such a case his intent is not material; from his position as purchaser, he practised a fraud. Hawse vs. Crowe, 21 Serg. and Low. 477. Noble vs. Adams, 7 Taunt. 61. 17 Serg. and Low. 290. He is bound to disclose; non-payment [**93]  is the necessary result of his act, which is a fraud.

The instruction has a tendency to mislead the jury; it left open that both the want of means, and the intent to defraud must be found. It has been put as if the want of means was not evidence of intention. The insolvency was established before the delivery of the goods. I consider the distinctions between fixed design, and a spirit of reckless adventure futile and ridiculous; that the purchases of both are equally unlawful and fraudulent.

Then again, is the deposite of the bill of lading in the post office at Baltimore, a delivery to the consignee at Boston? If we admit that, if the bill of lading had been received by the consignees, the question still recurs, would that have conferred title? Morrison vs. Gray and another, 9 Serg. and Low. 405, is an authority for the appellants. The bill of lading in its transit, is not more efficacious than the goods in their transit. The representative, the bill of lading, is not more effective than its principal, the goods. It is at most but a constructive delivery. Then can a factor, constructively in possession, of what is constructively his, bring his action of replevin for property,  [**94]  constructively delivered to the defendant? It seems to me not.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*274]  STEPHEN, J. delivered the opinion of the court:
This case involves several questions, some of which are of considerable importance, and the decision of which is attended with no little difficulty. It is an action of replevin, instituted in the court below, by the appellees against the appellants, to recover a quantity of corn and flour, which had been sold by separate and distinct contracts by the appellants to certain persons, from whom the appellees claim to have derived title. We do not think that the county court were wrong in rejecting the defendants' first prayer. The principle is unquestionable, that property while in the custody of the law cannot be replevied; and the reason is, that the law will not be so inconsistent with itself, as to be auxiliary or lend its aid to an act which would operate to defeat its own purposes. But the court were called upon to instruct the jury, that if they found that the writ of replevin which issued in this case, was executed before the service of the first  [**95]  replevin upon the same property, and while it was in the custody of the sheriff, then the plaintiff was not entitled to recover. There being evidence in the cause to go to the jury, to prove a waiver on the part of the plaintiffs in the original replevin, of the delivery of possession to them, under their writ against the defendants in that action, the court would have erred in giving a positive instruction to the jury, in the manner required by the defendants' first prayer.
We think that the court below did not err in refusing to grant the defendants' second prayer to the extent to which they were asked to instruct the jury; that is to say, that the plaintiffs 

 [*275]  could not recover at all in that suit, upon the state of facts assumed by the prayer, and upon which it was predicated.
Without deciding whether two defendants can be sued jointly in one action of replevin, for several parcels of property, severally owned and separately taken and detained, we think that such a misjoinder (if it be one) would not have warranted the instruction asked from the court, because such an objection is not altogether fatal to the action; but the defect may be cured by [**96]  putting the party to his election, as was done in 2 Johns. 228. And we find also, that a misjoinder of counts in a declaration, may not only be cured by an exercise of the right of election, but also by the verdict of the jury finding for a plaintiff on one count, and for the defendant on the other; as where an action is brought against a defendant in his personal, and also in his representative capacity, which would be a misjoinder of counts; the defect may be cured by verdict. Gould Plea. 217.
The court, we think, were also right in rejecting the defendants' third prayer, because there being evidence in the cause of usage to deliver the flour when sold for cash, without demanding the cash at the time of delivery, the instruction asked for by the defendants' prayer, that no property passed on the delivery unless the cash was paid or tendered at that time, was properly rejected by the court, as such an instruction would have withdrawn from the jury the consideration of such usage, and the effect of it upon the contract in this case, as to the necessity of making such payment simultaneously with the delivery of the flour purchased.
We do not think that the court [**97]  erred in refusing the fourth prayer of the defendants, relative to the insolvency of Tyson & Norris, at the time they made the purchases of the flour and corn in this case. The prayer seems to have been founded on the idea, that the sale was fraudulent if the vendees knew themselves to be insolvent at the time of the purchase, and did not communicate that circumstance to the vendors; knowing at the time that they were ignorant of the fact, and had not the means of becoming acquainted with it. The law, it 

 [*276]  seems, does not sanction such an elevated tone of morality in mercantile dealings, as would have warranted the granting of the prayer, to the extent asked for by the defendants in this case. Such a strict and rigid doctrine, considering the vicissitudes and changes incident to mercantile life, would go far to cramp the operations of trade and commerce, and has not received the countenance of the courts of justice, either in this state or elsewhere, as far as we have been able to ascertain. Moreover, the proceeds of sales of the property purchased, might have enabled them to fulfil their contract, and from any thing which appears might have been intended to be applied [**98]  to that purpose.
Nor do we think that the court erred in refusing to grant the fifth prayer of the defendants. By the terms of the bill of lading, the property was to be delivered to Josiah Bradlee & Co. or to their assigns, he or they paying freight for the same. This we think vested the legal title in them, and enabled them to maintain the present suit. "If goods by a bill of lading are consigned to A, he is the owner, and must bring the action if they are lost; but if the bill be special to be delivered to A, for the use of B, B ought to bring the action." 2 Liver. on Agen. 117, and the cases there cited. In 6 Serg. and Raw. Tilghman, Ch. J. says, "in deciding on the legal property, the court will look to the face of the bill of lading; but in ascertaining the equitable owner, the invoices, letters of advice, and other collateral evidence, will be resorted to,"
For reasons already given, we think the court did not err in refusing to grant the defendants' sixth prayer, to the full extent to which they were asked to go in their instruction to the jury.
We think the court were right in refusing to grant the defendants' seventh prayer, because there was evidence [**99]  to go to the jury, from which they might have found a waiver of actual delivery by the plaintiffs in the original replevin, and the granting of the instruction by the court, might have tended to mislead the jury as to their right to make such deduction.
We think the court were also right in refusing the defendants' 

 [*277]  eighth prayer, because there was evidence to go to the jury, from which they might have found a waiver of the delivery of the corn before the service of the writ of replevin issued in this case.
We think the court below were also right in refusing the defendants' ninth prayer, for the reasons we have already assigned in a preceding part of this opinion. The misjoinder of the causes of action, if it was one, did not go totally to defeat the action, and therefore did not warrant the prayer to the full extent in which it was made.
For the same reason, we think the court below committed no error in refusing to grant the defendants' tenth prayer.
After refusing the defendants' prayers, the court delivered several instructions to the jury, the accuracy of which is brought before this court for revision, and which will now be considered and [**100]  decided upon.
We fully concur with the court below in their first instruction to the jury. Although the sale of the goods was for cash, yet it was competent for the vendors to waive the cash payment by an unconditional delivery of the goods, without a concurrent demand of the money at the time the delivery was made. They had a clear right to dispense with the cash payment, and it was unquestionably waived by an unconditional delivery, unaffected by any fraud on the part of the purchaser in obtaining it. In such a case, the condition of payment simultaneously to be made according to the contract, would be waived, and the right of property would pass.
We can perceive in the second instruction of the court to the jury no error, except that they have withdrawn from the jury the decision of the question of fraud in the purchase of the property. This was no doubt inadvertently done, as their attention was very properly drawn to the consideration and decision of that fact in the previous instruction.
It does not appear that the court have committed any error in their third instruction to the jury. The court rightly left it to the jury to find the fact of usage, and to decide [**101]  whether the vendors of the articles acted in reference to it at the time 

 [*278]  of the delivery, so as to prevent the delivery, if made unconditionally, from operating as a waiver of the cash payment. If the delivery was unconditional, and without reference to the usage, the title passed. If it was made with reference to the usage, which was a question of intention, then the title did not pass, if the cash was not paid when thereafter demanded.
In making the delivery, it was unquestionably competent for the vendors to waive the saving operation of the usage upon their rights; and to transfer the title by an unconditional delivery if they thought proper to do so.
We concur with the court below in their fourth instruction to the jury, as to the invalidity of the contract upon the ground of fraud, upon the hypothesis that the jury should find the facts therein stated, to be true; but we think they erred, in telling the jury that the plaintiffs would, nevertheless, acquire a good title by the bill of lading, if they became creditors subsequent to the delivery of the goods to Tyson & Norris, (of which fact there was not a particle of proof,) and without adding that they became [**102]  such creditors, bona fide, upon the faith of the consignment and shipment of those very goods. Upon no other grounds could they acquire a right, when none passed to the persons under whom they claimed. In such a case, good faith, and a valuable consideration, would be essential constituents of a good title in any person claiming under them.
We think the court erred in the fifth instruction given by them to the jury, in directing the jury, that before they could find the sale of said goods fraudulent and void, they must find that Tyson & Norris knew that they were not able to pay for the goods, and that they would not be able to pay for them, and neither intended nor expected to pay for them. The jury could not well find that Tyson & Norris knew that they would not be able to pay; it was sufficient for the jury to find, in that respect, that they knew themselves to be insolvent, and had no reasonable expectation of paying for the goods purchased. The necessary tendency of such an instruction 

 [*279]  was calculated to bewilder, embarrass, and mislead the jury in their deliberations, and was therefore erroneous. In 21 Serg. and Low. 477, the above principle [**103]  seems to be decided. In that case, a vendee, under terms to pay for goods on delivery, obtained possession of them by giving a check which was afterwards dishonoured, and the court held, that he gained no property in the goods, if at the time of giving the check, he had no reasonable ground to expect that it would be paid. The transaction would be fraudulent, and the property would not pass.
For the reasons already given, we think the court below were right in their sixth instruction to the jury.
We think the court below erred in their seventh instruction to the jury, by requiring them, before they found against the plaintiffs, to find that the plaintiffs never made to Tyson & Norris any advances, nor contracted for them any responsibilities upon the faith of said consignment, when there was no evidence in the cause upon which the jury could find such a fact. Such an instruction was erroneous, as tending to mislead the jury in the formation of their verdict.
For similar reasons, we think the court erred in their eighth instruction to the jury, by requiring them to find that certain facts did not exist, of which there was no evidence, before they could find a verdict [**104]  against the plaintiffs, and that they had no right to recover. Such instruction was calculated to mislead the jury, and was therefore erroneous. There was no evidence in the cause of any advances made, or responsibilities incurred by the plaintiffs for Tyson & Norris on account of said corn or flour.
We can perceive no error in the ninth instruction. If the goods were sold on credit, and not for cash, and were delivered to the purchasers in the absence of fraud, there can be no doubt that the property passed from the vendors to the vendees, and the plaintiffs would be entitled to recover.
The tenth instruction we think was also correct. It was no doubt competent for the Boggs, one of the defendants, to make the agreement, dispensing with the actual delivery of 

 [*280]  the goods for which the writ of replevin issued, so as to legalize the execution of the process of replevin, then in the hands of the sheriff, and which he was about to execute for the plaintiffs in this suit. If he did make such an agreement for that purpose, he would be precluded by it from raising the objection, that the goods were in the custody of the law, on the ground that such an [**105]  objection, thereafter, would be fraudulent, and a violation of fair dealing and good faith.
We cannot, however, concur with the court below, in their eleventh instruction, which does not stand upon grounds equally tenable with those contained in the next preceding instruction. There was no agreement to be found by the jury, dispensing with the delivery of the corn, for the purpose of enabling the officer to execute the writ of replevin then in his hands, previously to the execution of that writ; and the objection, that the goods were in the custody of the law when the writ of replevin was executed, might well have been made, without any violation of good faith, even if the hypothetical statement of facts contained in the court's instruction had been found by the jury to have existed. The subsequent ratification of the act of the officer in making the replevin, if found by the jury, would have been purely voluntary, and being founded upon no valid consideration, was not obligatory upon the defendants.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

25 of 47 DOCUMENTS 

THE REGENTS OF THE UNIVERSITY OF MARYLAND vs. JOSEPH B. WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 365; 1838 Md. LEXIS 1 

June, 1838, Decided 

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

THIS was an action of assumpsit, instituted by consent to December, 1837. The plaintiffs counted for money had and received to their use, and the defendant pleaded the general issue and limitations. On these pleas issues were joined.

It was agreed that either party shall be at liberty to have considered as offered in evidence in the case, any certified copies, by the proper keeper, of any original papers laid before the legislature, or any branch of it, relative to the University, from the year 1807 to the present time, to have the same effect and operation, and no other, as if said papers were actually produced at the trial, and open to all exceptions to which the same would be liable if so actually produced; and that the record or minute-book of the proceedings of the Trustees of the University of Maryland, offered in evidence by the defendant, and the record or minute-book of the Board of Regents of the University of Maryland, excepting the list of alleged donations at the end of the same, offered in evidence by the plaintiffs, or any part of either of said record books, may be read and used in the Court of Appeals on the trial of this [**2]  case before said court, as if the same had been incorporated at large in the statement in the record of the evidence offered by the parties, and in like manner, that the diploma offered in evidence may be read from the original paper in the Court of Appeals. And it is further agreed, that all the evidence offered by either party shall be open to all exceptions in the Court of Appeals, in the same manner as if exceptions to the same had been taken to the same as offered. And it is also agreed, that any act of assembly, public or private, may be read from the statute book on said trial.

At the trial of the cause the plaintiffs, to prove the issue on their part, offered in evidence the act of the general assembly of Maryland, passed at November session of the year 1807, chapter 53, entitled, "An act for founding a College of Medicine in the city or precincts of Baltimore, for the instruction of students in the different branches of medicine," which, it was agreed, might be read from the printed statute book. And also offered in evidence, the petition upon which said act was passed.

And further, the plaintiffs offered in evidence, the act of the general assembly of Maryland,  [**3]  passed at November session of the year 1812, chapter 159, entitled, "An act for founding a University in the city or precincts of Baltimore, by the name of the University of Maryland;" and also offered in evidence the petition upon which the said act was passed. And also offered in evidence, the votes and proceedings of the house of delegates and senate of the general assembly of Maryland, of the sessions aforesaid, of the years 1807 and 1812, which, together with the last mentioned act of assembly, it was agreed might be read from the printed publication. And the plaintiffs further offered in evidence, the minute-book of the Regents of the University of Maryland, excepting, however, the entry or statement therein in relation to donations, which it was agreed should not be inserted in the record, but that the original book might be used at the hearing of this cause. And the plaintiffs, further to prove the issue on their part, read in evidence the first section of the act of said general assembly of Maryland, passed at November session, 1803, chapter 92, which it was agreed should be read from the printed statute book. And they further offered in evidence, that the said persons, claiming [**4]  to be the corporation of "the Regents of the University of Maryland," entered upon and prosecuted the business and purposes of said corporation, and that lectures were delivered, and courses of instruction in medicine and law, and in the other faculties, were given regularly and constantly, by professors appointed under the act aforesaid, creating the corporation aforesaid, of "the Regents of the University of Maryland," and that degrees from time to time, were conferred, as authorized by said act. And further offered in evidence, that the professors of the faculty of physic and the professors of law, of the said University, at an early period after the passage of the said last mentioned act, and before the year 1826, incurred at various times large personal responsibility, which is mentioned in the deeds given in evidence by the defendant, and which was discharged in the manner mentioned in said deeds by the trustees. And the plaintiffs further offered in evidence, that from time to time, after the corporation aforesaid went into operation under the act aforesaid, of the session of the year 1812, chapter 159, and before the year 1826, donations were made to the said corporation, for [**5]  the uses and purposes thereof, of minerals and books, of the value of two thousand dollars. And the plaintiffs further offered in evidence, the act of the general assembly of Maryland, of December session, of the year 1821, chapter 88, entitled "An act relating to the University of Maryland," which, by agreement, may be read from the printed statute book. And also offered in evidence, that in pursuance of said act, the medical professors of the University of Maryland, entered into bonds for the interest, and paid the said interest from year to year, required of them by said act. And the plaintiffs further offered in evidence, that shortly after the passage of the act of the general assembly aforesaid, of December session of the year 1825, chapter 190, there was sent to the governor, as claiming to be president of the board of trustees, and to each of the persons then claiming to be trustees under the said act, a notification or protest, from a committee of the Regents of the University of Maryland, authorized and directed by said regents to give such notification.

And the plaintiffs further read in evidence, the report of a joint committee of the house of delegates and senate [**6]  of Maryland, at a session of the general assembly, of December session, 1825, and the documents accompanying the same.

And the plaintiffs further offered and read in evidence, the 5th of a series of resolutions, passed by the persons claiming to be the Trustees of the University of Maryland, on the 15th day of June, 1826, as the same are entered on the minute book of said trustees, offered in evidence by the defendant. "Resolved, that it shall be the duty of the treasurer, having given bond in the penalty of fifty thousand dollars, with such security as may hereafter be approved of by this board, to receive all the moneys and funds of the University, and to deposite the same in the Bank of Baltimore, in the name of 'the Trustees of the University of Maryland,' to keep exact accounts of all receipts and payments, but no payments shall be made except by checks of the treasurer, countersigned by one of the executive committee, and he shall report statements of the finances of the institution when thereto required by the executive committee, and at all regular meetings of the trustees." And also proved by Samuel H. Bowly, a book-keeper in the Bank of Baltimore, that on the 1st December,  [**7]  1837, there was a balance of cash in said bank, to the credit of the University of Maryland, of $ 2,360 11. That the ledger account of said University, which he kept as such book-keeper, is headed "The University of Maryland," and that the pass or bank book is headed, "Dr. The Bank of Baltimore in account with the Trustees of the University of Maryland," and that the first entry on the scratcher of money deposited under the said 5th resolution, which was on the 2d of August, 1826, is "Trustees of the University of Maryland." And the defendant proved by said Bowly, that he has no knowledge that the manner in which the ledger account is headed, as before stated, was known to the trustees of the University, or the treasurer.

And the plaintiffs further offered in evidence, from the minute books of the trustees of the University of Maryland, produced by the defendant, an account and report of the executive committee, dated May the 2d, 1836, from which it appeared, that there was a cash balance in the treasury on that day of $ 682 94.

The defendant thereupon offered in evidence, the act of assembly of December session, 1825, ch. 190, and the minutes of the proceedings of the trustees [**8]  of the University of Maryland, appointed under said act, which (with all other acts of assembly offered in evidence by either party) is agreed may be read and referred to in the Court of Appeals, as if incorporated with the record of this cause. He likewise proved that the said minutes of proceedings were until the 11th day of April, 1836, made and entered by Louis Eichelberger, the secretary of said board of trustees, and that the letters of acceptance from the professors named in the resolution of the 12th July, 1826, except those produced by defendant, were destroyed by fire in the year 1834, and that the said Louis Eichelberger is since dead.

He further offered in evidence, the letters of Professor Pattison, Bishop Kemp, and Dr. Wyatt, accepting professorships under the board of trustees.

The defendant then offered in evidence, the acts of assembly following, viz:

1798, ch. 105. 1826, ch. 261. 1827, ch. 68, 198. 1830, ch. 50. 1831, ch. 270. 1832, ch. 315. 1833, ch. 62.

And the acts following, viz: 1807, ch. 111. 1809, ch. 96. 1813, ch. 125. 1816, ch. 78. 1817, ch. 154. 1819, ch. 105, 163. 1820, ch. 121. 1825, ch. 188. 1826, ch. 261. 1827, ch. 198.

The defendant [**9]  further offered in evidence, that at the time the act of 1825 was passed, the board of Regents of the University of Maryland consisted of the persons and composed of the faculties, following, viz:

Provost--Rev. James Kemp.

Faculty of Physic--Alexander McDowell, John B. Davidge, Nathaniel Potter, Elisha De Butts, Samuel Baker, Granville Sharp Pattison, Richard W. Hall.

Faculty of Divinity--Rev. Dr. Wm. E. Wyatt, Rev. Wm. Nevins, Rev. J. D. Kurtz, Rev. Geo. Roberts, Rev. Dr. Williams, Rev. John Glendy, Rev. J. P. K. Henshaw.

Faculty of Law--David Hoffman, George Winchester, William Frick, Nathaniel Williams, Jonathan Meredith, Roger B. Taney, U. S. Heath.

Faculty of Arts and Sciences--Rev. John Allen, Edward C. Pinkney, Charles W. Hanson, Wm. Howard, John P. Kennedy, John D. Craig.

And that of the said persons authorized to compose the said faculties, the following named, viz: the Rev. Dr. Kemp was appointed, accepted and acted till the period of his death, as the Provost of the University of Maryland, under said act of 1825, ch. 190. That all the persons composing said faculty of physic as aforesaid, were re-appointed by the board of trustees of the University [**10]  of Maryland, accepted and acted in fact, under said act of 1825, ch. 190, and are the persons mentioned by those names in the minutes of proceedings of the trustees aforesaid. That of the persons composing the faculty of divinity, the Rev. Dr. Wyatt and Rev. Dr. Williams were re-appointed by said board of trustees, accepted and acted under the act of 1825, ch. 190--and that of said faculty, the Rev. Dr. Roberts and the Rev. J. P. K. Henshaw, were by said act of 1825, ch. 190, appointed trustees of said University of Maryland, and acted in said capacity. That of the persons composing the faculty of law as aforesaid, David Hoffman, Esq. was re-appointed by said board of trustees, accepted and acted as professor of law under said act of 1825, ch. 190. And that Nathaniel Williams, William Frick, and Roger B. Taney, in said faculty named, were by said act of 1825, ch. 190, appointed members of said board of trustees of the University of Maryland, and acted as such. That of said faculty of arts and sciences, Messrs. Allen, Pinkney, Kennedy, Hanson, and Dr. Howard, were re-appointed by said board of trustees, professors, under said act of 1825, ch. 190, and acted as professors in pursuance [**11]  of such appointment.

The defendant then offered in evidence the following letters of nomination, to the trustees of the University of Maryland, to wit: a letter from Professor N. Potter, of 3d October, 1826, nominating Dr. Wright for the chair of Surgery; a letter from Professor Samuel Baker, of the 7th July, 1827, nominating Dr. J. B. Davidge for the same chair; one from Professor Davidge, nominating Dr. Wright; one from Professor McDowell, nominating Dr. Dudley for the same post. And a letter from Professor Hall, of the 14th June, 1837, nominating several professors for chairs then vacant. And that after the organization of the board of trustees under said act of 1825, chap. 190, the professors and others, under the mandate of said trustees, annually signed and issued diplomas to graduates in said University. And that the board of Regents, the plaintiffs, at no time conferred degrees or discharged other duties incident to their office as Regents, from the period of the organization of the board of trustees under the act of 1825, chap. 190, until the 18th day of September, 1837.

The defendant further offered in evidence, a deed from John E. Howard to N. Potter and others,  [**12]  dated 15th May, 1815, conveying to the grantees a lot of ground in the western precincts of the city, reciting that the said grantees had borrowed for the use of the Regents of the University, the sum of $ 6,651, and conditioned that upon the payment of the same by the said Regents, the lot should be held for their use; and a deed from the executors of J. B. Davidge to the said trustees, for his interest in the University property, duly executed and recorded, dated 29th May, 1830. And the defendant also read to the jury a deed dated 14th of January, 1832, from Richard Hall and others, physicians, and on the 10th of July, 1823, professors of the faculty of medicine in the University of Maryland, to the trustees of the University of Maryland, conveying to the latter, for a valuable consideration, the lot of ground upon which the infirmary attached to the said University is erected. And a deed dated 14th January, 1834, from Nathaniel Potter and others, conveying to the said trustees, whom the deed recites to be the successors of the Regents under the act of 1825, ch. 190, the lot of ground conveyed as aforesaid by John E. Howard to them, by his deed of the 15th of May, 1815, together [**13]  with the medical college and other buildings erected thereon. And the defendant also offered in evidence, a deed from the sheriff of Baltimore county, dated the 25th of May, 1832, conveying to the said trustees the interest of one of the professors of medicine in the University of Maryland, in the lot and infirmary, sold by the sheriff to satisfy a judgment against him.

The defendant then proved, that the full amount of the purchase money for the lot, upon which the infirmary is erected, has been paid by the said trustees, and that the judgments and premiums of insurance have, from time to time, as the same became due upon the property of the University, been paid by the said trustees. He further offered in evidence the accounts of the treasurer of the said board of trustees. The defendant further gave in evidence, the particular payments following, made at the several dates stated, and to the several professors receiving the same, and for the purposes stated opposite to each payment, comprising a period from 1826 to 1836; and proved, that under the provisions of the act of 1821, chap. 88, and since the organization of said board of trustees, under the act of 1825, chap. 190,  [**14]  the professors of the faculty of physic for the time being, gave and executed bond to the state of Maryland, according to the provisions of said act; and that since the resignation of said professors, herein before named, the bond given to the state has been executed by the professors of said faculty, newly appointed by said trustees.

The defendant then read in evidence, the letters of resignation of the professors of the medical faculty, and of the professor of law, dated in 1836 and 1837; and proved that from the period of the organization of said board of trustees under said act of 1825, chap. 190, said trustees received, and have always since had, peaceable and exclusive possession of the buildings, grounds, and all other property and funds of said University.

The defendant also offered in evidence, two petitions of the medical faculty of the University of Maryland to the legislature, the first dated January 4th, 1834, praying to be relieved from the payment of the interest on the sum of $ 30,000, loaned by the state to the University in the year 1821; the other dated the 30th of January, 1837, reiterating the above prayer; and also praying, that such modification might [**15]  be made in the charter, as would admit the medical faculty to a limited participation with the trustees, in the government of their particular faculty.

The plaintiffs by their counsel object to the admissibility in evidence of the act of the general assembly of Maryland, passed at December session, 1825, chap. 190, entitled, &c. as offered in evidence by the defendant, because, that by the acts of 1807 and 1812, given in evidence by the plaintiff in this cause, the plaintiffs were at the institution of their suit, and still are entitled to all the rights and privileges conferred by said acts upon "the Regents of the University of Maryland," which said two acts are still in full force and effect, notwithstanding the said act of 1825, chapter 190, the same being unconstitutional and void. First, according to the provisions of the bill of rights, and constitution of the state of Maryland; and, secondly, according to the provisions of the constitution of the United States. But the court pro forma, admitted the evidence aforesaid. The plaintiffs excepted.

2D EXCEPTION.--And the plaintiffs further offered to prove, by Richard Wilmot Hall, that witness, and Dr. Pattison, and Dr.  [**16]  Baker, and Dr. De Butts, and Dr. McDowell, while professors of the medical faculty of the University of Maryland, and David Hoffman, while professor of the faculty of law, borrowed at sundry times large sums of money, for the purposes of construction of the buildings and the enclosure wall of said buildings of the University of Maryland, and for the purpose of procuring apparatus for the medical, and surgical, and chemical departments of the University, which sums were applied to said purposes; that the first amount of the sums raised as aforesaid, was borrowed from the City Bank of Baltimore, in the year 1813 or 1814, and was $ 7,000; the next sum was borrowed from the Mechanics Bank of Baltimore, in the year 1813, 1814, or 1815, and was about $ 2,000; that the next sum was borrowed from the Bank of Baltimore, in amount $ 3,000, about 1820, and before 1825; $ 2,000 about the year 1821; $ 7,000 or $ 8,000 about the year 1823; and that this last sum was mainly applied to the building of the infirmary belonging to said University; and that there was borrowed as aforesaid, from the Union Bank of Maryland, $ 5,000, about the year 1823 or 1824, and before the year 1825, which sum was applied [**17]  to the repairs of the centre building of the University, and to the lateral building; that in the year 1825, the said professors of medicine and law contracted with workmen for the repairs of the centre building aforesaid, for stopping leaks of the roof; and in the spring of 1826, the said professors of medicine paid for said repairs about $ 480; and that there remains yet unpaid to said professors of the amount of their said advances, the sum of upwards of $ 14,000, principal and interest. The plaintiffs further offered to prove by the said Hall, that in the year 1813, Jeremiah Sullivan made a donation to the corporation of the Regents of the University of Maryland, an Encyclopedia; and that after the year 1813, and before the year 1825, John Spear Smith made a donation to said corporation of a valuable collection of minerals; and that between the same periods Robert Gilmor made a donation to said corporation of a collection of minerals; and that various other donations were made before the year 1825, to said corporation. But the defendant objected to the admissibility of said Hall's testimony, because of said Hall being one of the persons now, and at the institution of this suit [**18]  claiming to be one of the Regents of the University of Maryland, and as such, one of the plaintiffs in this suit, and which facts were admitted by plaintiff's counsel at the time of offering said witness; which objection the court, pro forma, sustained, and rejected the said evidence. Whereupon the plaintiffs by their counsel excepted.

3D EXCEPTION.--And the plaintiff further offered to prove, by Maxwell McDowell, that the professors of the medical faculty, and of the law faculty of the University of Maryland, before the year 1825, borrowed money to a large amount at different times, upon their personal responsibility, for the purposes of the University, and to enable it to prosecute the objects of the University, as prescribed by the act aforesaid, incorporating the said University; and also, that there were made to the Regents of the University of Maryland, before the year 1825, various valuable donations for the benefit of said University, and in aid of its objects. But the defendant objected to the admission of said testimony, inasmuch, (as was admitted by the plaintiffs,) the said McDowell was a Regent of the University of Maryland at the time of the passage of the act of [**19]  1825, chap. 190, and at no time had resigned or been removed by the Regents, his situation as Regent. Whereupon the court, pro forma, rejected the evidence so as above in this exception offered. Whereupon the plaintiffs, by their counsel, excepted.

4TH EXCEPTION.--The plaintiffs then prayed the court to direct the jury, that notwithstanding the act of 1825, chap. 190, given in evidence, the plaintiffs are entitled to recover, if the jury shall believe the evidence given in the cause, and shall find that at any time within three years before the instituting of this suit, the defendant received moneys exceeding the amount of one hundred dollars, and not appropriated by him for any of the purposes of the University of Maryland, or in execution of any of the orders or resolutions of the persons or body, claiming under the act aforesaid, to be the trustees of the University of Maryland, and which shall have been claimed and received by the defendant, as treasurer of the said trustees.

2. That notwithstanding the act of 1825, chap. 190, the plaintiffs are entitled to recover, if the jury shall believe the evidence given in the cause, and shall find that at any time heretofore,  [**20]  the defendant received money exceeding the amount of $ 100, and not appropriated by him for any of the purposes of the University of Maryland, or in execution of any orders or resolutions of the persons or body claiming under the act aforesaid, to be the trustees of the University of Maryland, and which shall have been claimed and received by the defendant, as treasurer of the said trustees.

3. That, upon the evidence offered in this cause, if the jury find the same to be true, they are entitled to recover, because the act of the general assembly of Maryland, passed at the December session, in the year 1825, chap. 190, entitled, "An act supplementary to the act entitled an act for founding an University in the city or precincts of Baltimore, by the name of the University of Maryland," is unconstitutional, and therefore void.

Which said several prayers of the plaintiffs, and each of them, the court, pro forma, rejected, and refused to direct the jury as prayed. Whereupon the plaintiffs excepted.

The verdict and judgment being for the defendant, the Regents appealed to this court.

Under the agreement mentioned in the record, the proceedings of the board of Regents [**21]  of the 17th of March, 1836, were read, appointing a committee to take the opinion of counsel in relation to the constitutionality of the act of 1825, ch. 190, with a resolution that, in case the said law should be considered unconstitutional by counsel, that an address should be presented to the governor, and to the trustees appointed to the government of the University by said law, asking them to defer acting thereunder, until the subject could be again brought before the legislature; and in case of their refusal, to adopt legal measures, to resist the execution of the law.

The counsel consulted by the committee, having given an opinion against the constitutionality of the law, they, in conformity with the resolution of the Regents, addressed a communication to the governor and trustees, on the 22d of May, 1836, (enclosing the opinion) asking them to suspend the execution of the law until the then next meeting of the legislature, when an application would be made for its repeal; and proposing, in case of refusal, that steps should be taken for a speedy judicial decision upon its constitutionality by the proper tribunal.

These documents were also read.  

DISPOSITION:
JUDGMENT REVERSED [**22]  AND PROCEDENDO AWARDED.  

HEADNOTES:

A corporation may be private, and yet the act, or charter of incorporation, contain provisions of a purely public character, introduced solely for the public good, and as a general police regulation of the state.

If the acts of 1807, ch. 53, and 1812, ch. 159, by conferring authority to grant diplomas, may be regarded as repealing so much of the act of 1798, ch. 105, as provides for the payment of $ 10 for a license to practise, and imposes a fine for practising without license, and are therefore in violation of the rights conferred by the latter act; they are not for that reason wholly unconstitutional and void, but only so far as the authority to grant diplomas extends.

But the right to grant license to practise, for a fee, and to a portion of the penalty for practising without license, given to the Medical and Chirurgical Faculty, by the act of 1798, ch. 105, is not such an inviolable vested right, as to be beyond the reach of the legislature.

The act of 1798, in that respect, is penal and sanatory, looking to the health, and lives of the citizen, and as such might be revoked at the pleasure of the legislature.

The power in question is a political one, and in granting it to the corporation, the good of the public was the object contemplated, not the regulation, or promotion of private interests.

A corporation aggregate, is an artificial intellectual being, composed generally of persons in their natural capacity, but it may also be composed of persons in their political capacity, of members of other corporations.

The corporation of "The Regents of the College of Medicine of Maryland," created by the act of 1807, ch. 53, is not destroyed or merged in the corporation of "The Regents of the University of Maryland," created by the act of 1812, ch. 159, independently of the constitution of the United States, or of the bill of rights, and constitution of this state.

They exist as distinct and independent corporations, in possession of all the rights and franchises conferred upon them respectively, by the acts of their incorporation; those rights and franchises, being entirely compatible, and the powers and authority of the one, not inconsistent with, or opposed to the powers and authority of the other.

The corporation of "The Regents of the University" is a private, and not a public corporation.

It was not created for political purposes, nor invested with political powers.

If a corporation be eleemosynary, and private at first, no subsequent endowment of it by the state can change its character.

It is not sufficient to render a corporation public, that its ends are public.

Whether a corporation be public or private, depends upon the nature of the franchises granted, and not the expected beneficial results to the community, from the possession and exercise of those franchises.

Public corporations are to be governed according to the laws of the land, and the government has the sole right as trustee, to inspect, regulate, and control them, whilst the same right, in reference to private corporations, appertains to the visitors alone, under the visitatorial power incident to such corporations.

Colleges and academies, established for the promotion of piety and learning, and endowed with property by public and private donations, are, in a legal sense, equally with hospitals for the relief of the poor, sick, &c. considered as private eleemosynary corporations. A charter, or act of incorporation, when accepted, is a contract, protected by that clause of the constitution of the United States, which declares, that "no state shall pass any law impairing the obligation of contracts."

The act, therefore, incorporating "The Regents of the University," having been accepted, constituted a contract, protected by the constitution of the United States, and the act of 1825, ch. 190, impairing the obligation of that contract, is repugnant to that instrument, and consequently void.

And independently of the constitution of the United States, and of this state, that act is void as opposed to the fundamental principles of right and justice, inherent in the nature and spirit of the social compact.

The legislature has no right, without the consent of a corporation, to revoke or alter its charter, or take from it any of its franchises or property; not that a corporation is clothed with any peculiar sanctity, but because its property and franchises are private property, and under the safe-guard of the same principle, that protects the property and rights of individuals.

The act of 1825, professes to discontinue and abolish the corporation of the Regents of the University, and to appoint a board of trustees composed of different persons, and to transfer to them all the franchises and property of the corporation intended to be abolished. In this respect, if effectual, it would amount to a legislative ouster; a legislative judgment of dissolution, and as such in opposition to the 6th article of the bill of rights, which declares, "that the legislative, executive, and judicial powers of the government, ought to be forever separate and distinct from each other,"--and also to the 21st article of the same instrument, declaring "that no freeman ought to be taken, or imprisoned, or disseized of his freehold, &c. but by the judgment of his peers, or by the law of the land."

An act which only affects, or exhausts itself upon a particular person, or his rights and privileges, and has no relation to the community in general, is rather a sentence than a law.

It may be questioned whether an unconstitutional act of the legislature can be made constitutional and valid, by a subsequent acquiescence in it.

It is not necessary to the constitutionality of an act for altering a charter, to the passing of which, previous assent has not been given, that it should by its terms, be made to depend upon subsequent assent.

The passing of it, with nothing more, amounts to an offer only for acceptance, and if afterwards accepted, either expressly, or by acting under it, it then receives life, and becomes an operative law.

But the acts, from which the assent of an existing corporation, to an alteration of its charter, may, and can alone be inferred, must be corporate acts, or acts of its authorized agents, or officers. The acts, or declarations of particular members, do not bind the corporation.

Nor can the assent of a corporation to an act, altering, or destroying its charter, be inferred from the fact, that individual members, accepted, and held offices under the new corporation, which it was the object of the act to create.

Neither non-user or mis-user, of corporate franchises, has ever been held sufficient to authorize the granting the same franchises to others, before a forfeiture has been judicially declared.

An inference of assent by a corporation to an act of assembly after it has been passed, can no more be drawn from a subsequent non-user, or mis-user of its franchises, than an inference of consent to its being passed, can be drawn from a previous non-user or mis-user.

Nor can the non-user by a corporation of its franchises, be considered as equivalent to a surrender of them--that can only be done by deed to the state.

Neither are courts warranted in presuming a surrender of the corporate rights, and a dissolution of the corporation, from a mere intentional abandonment of the franchises, unless there be something in the act of incorporation to justify it.

If either of the faculties of a corporation consisting of integral parts, is lost, and not restored at the time of bringing a suit by such corporation, the action cannot be maintained.

But the acceptance of office by the members of one of the faculties of an old, under a new corporation, does not in law amount to a resignation of their offices under the former, nor to a dissolution, or suspension of its franchises.

An office in a corporation may be resigned in two ways; by an express agreement between the officer and the corporation, or by an agreement implied from his being elected to another office in the same corporation, incompatible with it--and such resignation is not complete until the corporation shall have manifested its acceptance of the offer to resign, either by an entry in its books, or electing another person to fill the place, treating it as vacant.

When the fact of incorporation is shown by the plaintiff, the burden of showing a dissolution is thrown upon the defendant.

A corporation cannot be considered as being composed of distinct, definite, integral parts, unless the number of the members of each class is definite, and a majority of the members of each, is necessary to constitute a corporate meeting or assembly. No advantage can be taken of any non-user or mis-user on the part of a corporation, by any defendant, in any collateral action.

There are two modes of proceeding judicially to ascertain and enforce the forfeiture of a charter. The one by scire facias when there is a legally existing body capable of acting, but who have abused their power; the other by information in nature of a quo warranto, which applies where there is a corporate body, de facto only, who take upon themselves to act, though from some defect in their constitution, or organization, they cannot legally exercise their powers. And the proceedings in both cases must be at the instance of the government, and in no other way.

The defendant, the treasurer of the trustees of the University, was held liable to the corporation of the Regents, in an action for money had and received, for any money to which, as Regents, they could shew themselves entitled, amounting to a sum within the jurisdiction of the court, remaining in the hands of the defendant at the time the suit was brought, and which was received by him, as such treasurer, at any time within the three antecedent years. The act of limitations relied on by the defendant, barring a recovery for previous receipts.  

COUNSEL:
EVANS, MAYER, MARTIN, and MEREDITH, for the appellants, contended:

1. That the corporation of the Regents of the University, is a private corporation. They cited on this point Act 1817, ch. 154, 210. 1807, ch. 153. 1812, ch. 159. Lightly vs. Clouston, 1 Taunt. 112. Dartmouth College vs. Woodward, 4 Wheat. 518, 636, 671. Ib. 4 Cond. Pet. S. C. 539, 540, 557, 558. Allen vs. McKeen, 1 Sumner, 277, 296, 298, 299. 3 Stor. Con. U. S. 260. Ang. and Ames, 8, 21. Act 1812, ch. 159, sec. 9-19. 1803, ch. 92, sec. 1. 2 Kent Com. 300, 304, 305. The People vs. Morris, 13 Wendell, 337. Rex vs. Cambridge, V. C. 3 Burr. 1656. Attorney General vs. Pearce, 2 Atk. 87. Stanley vs. Robinson, 4 Pet. C. C. R. 544. Case of St. Mary's Church, 7 Serg. and Raw. 517. Society, &c. vs. New Haven, 8 Wheat. 464. 2 Kent, 275. 3 B. Stat. 213, Hen. 8. Ib. 794, Hen. 8. Gilb. Law Evid. 12, 13.

2. That the charter of such a corporation is a contract between the state and the corporators; and also, between the state, the corporators, and those persons who contributed to the endowment. Dartmouth College vs. Woodward, 4 Pet. Con. S. C. R. 553-4, 556, 579 a 583. Ashby vs. White, 2 L. Ray.  [**23]  938. 14 Law Lib. 132. The King vs. John Patterson, 24 Serg. and Low, 1, 14. Dartmouth College vs. Woodward, 4 Wheat. 695, 629, 693, 689. Jenk. Cent. 270. Plac. 28. Allen vs. McKeen, 1 Sum. 300, 301. Journal H. of D. 1825, p. 152. Mumma vs. the Potomac Co. 8 Peter, 282. Case of St. Mary's Church, 7 Serg. and Raw. 530, 558, 559, 565. 1 Trum. His. of Con. 407. Ang. and Ames, 507, 510. Slee vs. Bloom, 19 John. 456. Riddle vs. the County of Bedford, 7 Serg. and Raw. 392.

3. That the act of 1825, ch. 190, is a law impairing the obligation of contracts, within the meaning of the constitution of the United States. Journal H. of D. 1825, 152. 3 Dall. 388, 390. Bill of Rights, 21 Sec. -- art. 10 sec. Con. U. S. Terrett, et al vs. Taylor, et al, 9 Cranch, 43. Fletcher vs. Peck, 6 Cranch, 88. State of New Jersey vs. Wilson, 7Cranch, 164. The town of Pawlet vs. Clark, 9 Cranch, 292. Dartmouth College vs. Woodward, 4 Wheat. 518. Allen vs. McKeen, 1 Sumner, 276. Norris vs. Trustees of Abingdon Academy, 7 G. and J. 7. Adams vs. Storey, 1 Payne, C. C. R. 107. 11 Peters S. C. R. 420. Canal Company vs. Rail Road Company, 4 G. and J. 108.

4. That the act of 1825, is unconstitutional and void.  [**24]  Norris vs. Abingdon Academy, 7 G. and J. 7. The Canal Bridge Co. vs. Gordon, 1 Pick, 304. 2 Kent, 312. Trustees of Vernon vs. Hills, 6 Cow. 23. 1 Hals. 191. Sutton vs. Johnstone, 2 Term Rep. 513. Canal Co. vs. Rail Road Co. 4 G. and J. 107. Allen vs. McKeen, 1 Sumner, 276, 313. Ehrenzeller vs. Union Land Co. 1 Rawl. 181, 183. Wellington, et al vs. Petitioners, &c. 16 Pick, 96, 98, 99. 3 Sto. Com. 262. Ang. and Ames on Corp. 504, 505. Dartmouth College vs. Woodward, 4 Wheat. 688. Case of St. Mary's Church, 7 Serg. and Raw. 559.

5. That the individual members of the corporation of The Regents of the University of Maryland, have no individual interest in the corporate property of that institution, and are not individually liable for its corporate debts, and that Drs. Howard and McDowell are consequently competent witnesses in this cause. The City Bank vs. Bateman, 7 Harr. and John. 105. Nor. Peake, 219. 1 Stark, 126. Weller vs. the Governor of the Foundling Hospital, Peake's Cases, 153.

6. That assuming the act of 1825 to be unconstitutional, the appellant is entitled to recover in this action. Acts of 1798, ch. 105. 1807, ch. 153. 1812, ch. 159. 1816, ch. 78. Wellington, et [**25]  al vs. Petitioners, 16 Pick, 96. Dillingham, et al vs. Snow, 5 Mass. 554. Angel and Ames, 514. Hall vs. Marston, 17 Mass. 575. Chapman vs. Williams, 7 Harr. and J. 157. Upon the forms of the prayers. Graham and Parran vs. Harris, Parran & Co. 5 G. and J. 493.

NELSON and R. JOHNSON, for the appellees, contended:

1. That the act of 1812, ch. 159, incorporating the Regents of the University of Maryland, cannot be regarded as a contract, the corporation thereby created, being a public corporation. Mumma vs. the Potomac Co. 8 Peters, 281.

2. That the act of 1825, ch. 148, is not repugnant to the constitution of Maryland or of the United States. McCulloh vs. the State of Maryland, 4 Wheat. 424, 428, 429. Mumma vs. Potomac Co. 8 Pet. 281. Wellington, et al vs. Petitioners, 16 Pick, 98. 1 Kidd, 67, 68. The King vs. Larwood, 1 Lord Ray. 29, 32. Allen vs. McKeen, 1 Sum. 303. Rex vs. Hughes, 5 B. and Cres. 886.

3. That assuming said law to be unconstitutional, still the plaintiffs below were not entitled to recover in this suit, because of the acts of said Regent subsequent to the passage of said law. Kent Com. 308, 309. The King vs. John Pasmore, 3 Term, 199. The King vs.  [**26]  Morris, 4 East, 17. The King vs. Morris and Stewart, 3 East, 213. The King vs. Miller, 6 T. R. 279. Smith vs. Smith, 3 Des. 557, 576, 577, 578, 580. King vs. Hughes, 12 Serg. and Low, 399. 14 Law Lib. 133, 135. Bank U. S. vs. Dandridge, 12 Wheat. 70. Union Bank vs. Ridgely, 1 H. and G. 426. The Canal Bridge vs. Gordon, 1 Pick, 297. Canal Co. vs. Rail Road Co. 4 G. and J. 106, 107, 150, 151. The King vs. Sir G. Chetwynd, 14 Serg. and Low, 111. The King vs. Wardroper, 4 Burr. 2024. Hampshire Co. vs. Franklin Co. 16 Mass. 86. Riddle vs. Proprietors of Locks, 7 Mass. 184. Canal Bridge vs. Gordon, 1 Pick, 297, 304, 308. Wellington, et al vs. Petitioners, 16 Pick, 97.

4. That there is no evidence in the record to show any assumpsit by the defendant to the plaintiffs, and that they therefore were not entitled to recover in this suit. White vs. Bartlett, 23 Serg. and Low. 312. Nickolson vs. Knowles, 5 Mad. 47. Blackburn vs. Scholes, 2 Camp. 344. Dixon vs. Hammond, 2 Barn. and Ald. 310. Roberts vs. Ogilby, 9 Price, 269. Gasling vs. Birnie, 7 Bing. 339. Travis vs. Claiborne, 5 Munf. 435.

5. That the testimony proposed to be given in the trial below by Doctors Hall and McDowell, was [**27]  properly rejected by the court.

6. Upon the questions of form and practice. Agnew vs. the Bank of Gettysburg, 2 H. and G. 478, 493. Graham and Parran vs. Harris, et al, 5 G. and J. 490. Bosley vs. Chesapeake Ins. Co. 3 G. and J. 450, 462. Cole vs. Hebb, 7 G. and J. 20, 26. Duvall vs. Farmers Bank of Md. ib. 60. Davis vs. Leab, 2 G. and J. 302. Newson, adm. vs. Douglass, 7 Harr. and J. 452. Hicks vs. Hicks and Norris, 5 G. and J. 82. McCreary vs. McCreary, ib. 152. Maryland Ins. Co. vs. Bathurst, 224. McElderry, et al vs. Flannigan, 1 H. and G. 308.

7. That if the act of 1824, ch. 148, is unconstitutional, the act of 1812, ch. 159, is likewise unconstitutional, it being repugnant to the acts of 1798, ch. 205, and 1807, ch. 153.  

JUDGES:
Before BUCHANAN, Chief Judge, and STEPHEN and SPENCE, Judges.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*383]  BUCHANAN, Ch. J. delivered the opinion of the court.
A variety of questions arise in this case, which is one of a grave and delicate character. Important as respects the interests involved, and the results to the community. What may be the effect of the decision of this court (whether beneficial or otherwise) upon the usefulness and future operations of [**28]  the University, we do not know, nor is it our business to inquire; looking only, and with a single eye, as it is our duty to do, to the questions alone submitted to us, and seeking to decide them, according to the principles of law governing such questions, whatever the consequences may be. Grave and delicate, as it draws in question the validity of an act of the legislature of the state, we are not insensible to the caution with which such questions should always be approached, nor the deliberation with which they should be examined; accompanied by a becoming deference to the legislature, and its high and important functions, and a just regard to the duties and character of the judicial office.
It has been said, that a legislative act should not be pronounced unconstitutional or invalid, in a doubtful case: nor should it, where the doubt is bona fide, and well founded, and not the result of a disinclination to deny the authority of the legislature, which all must feel, but none should yield to 

 [*384]  in violation of a solemn duty. But where a judge is satisfied upon full consideration, that an act of the legislature is contrary to the constitution of the United States, the [**29]  supreme law which he is bound to obey, and which must prevail over any act that comes in conflict, and cannot stand with it, or is for any other reason invalid, he has no choice; and all that is left him, is honestly and fearlessly to do his duty;--from the faithful discharge of which, however unpleasant the task, no upright judge can shrink if he would. On the other hand, a judge should not suffer himself to be betrayed to pronounce an act unconstitutional or invalid on insufficient grounds, by a morbid apprehension that a contrary decision might be ascribed to the want of a just and proper sense of judicial duty. Thus impressed, we proceed to the examination of this case--and the first question presented by the record, and which meets us at the threshold, arises on the first bill of exceptions, upon an objection by the counsel of the appellants to the admissibility in evidence of the act of the legislature of this state, passed at the December session, 1825, ch. 190, (which was offered in evidence on the part of the defendant, and admitted by the court below) on the alleged grounds of its being contrary to the constitution of the United States, and to the Bill of Rights and constitution [**30]  of this state, and is also raised on the first prayer in the fourth exception. The consideration of which, involves other questions upon which the validity of that act depends.
By the act of 1798, ch. 105, a number of persons were incorporated under the name and title of "The Medical and Chirurgical Faculty of the State of Maryland," with authority to elect twelve persons to be styled "The Medical Board of Examiners for the State of Maryland," whose duty it is declared to be, to grant licenses to gentlemen qualified to practise medicine and surgery, upon the payment to the treasurer of the faculty by each person so obtaining a certificate or license, of a sum not exceeding ten dollars, to be fixed on or ascertained by the faculty. And the sixth section subjects persons who shall practise in either of those branches, and 

 [*385]  receive payment for his services, without having first obtained such license, to a penalty of fifty dollars for each offence, to be recovered in the county court where he may reside, by bill of presentment and indictment, one-half for the use of the faculty, and the other for that of the informer.
The second section of the act of 1807, ch. 53, provides [**31]  for the establishment in the city or precincts of Baltimore, of a college for the promotion of medical knowledge, by the name of "The College of Medicine of Maryland," to be founded and maintained forever. And the third section declares, that the members of the board of medical examiners for this state, for the time being, together with the president and professors of the college of medicine, shall be one community, corporation, and body politic, by the name of "The Regents of the College of Medicine of Maryland." Thus constituting those two separate and distinct bodies, as might well be done, one corporation; and making them the regents or governors of "The College of Medicine of Maryland," for the management and conduct of which they were thus incorporated.
The fourth section gives to the regents the power to acquire, dispose of, and employ real and personal estate for the purposes of the college.
The ninth section authorizes and empowers the regents from time to time to constitute and appoint (without restriction as to number) professors of the different branches of medicine, to be "severally styled professors of such branch as they shall be nominated and appointed for, according [**32]  to each particular nomination and appointment," and also to appoint lecturers in like manner. "The professors and lecturers so constituted and appointed from time to time," to be known and distinguished by the name of "The Medical Faculty of the College of Medicine of Maryland."
The twelfth section authorizes the granting diplomas, and admitting students of the college and others, to the office and profession of surgeon, and to the degrees of bachelor and doctor of medicine.

 [*386]  The sixteenth section appoints six persons by name to be professors, until further arrangements made by the regents of the college.
The eighteenth section constitutes "The Medical and Chirurgical Faculty of the State of Maryland," the patrons and visitors of the college; and other sections give to the regents the power to appoint a president, to have and to use one common seal, and one privy sale, and the capacity to sue and be sued, &c.
The first section of the act for founding "an University in the city or precincts of Baltimore," passed at the December session, 1812, ch. 159, provides that the college for the promotion of medical knowledge, by the name of "The College of Medicine of Maryland,  [**33]  " be and the same is hereby authorized to constitute, appoint and annex to itself, the three other colleges or faculties, viz: The faculty of Divinity, the faculty of Law, and the faculty of the Arts and Sciences, and declares "that the four faculties or colleges thus united, shall be and they are hereby constituted an university, by the name and under the title of The University of Maryland."
By the third section it is enacted, "that the members of the said four faculties, with the Provost of the said University and their successors, shall be and are hereby declared to be one corporation and body politic, to have continuance forever, by the name and style of "The Regents of the University of Maryland," with capacity to acquire, enjoy and dispose of real and personal estate for the purposes and interests of the University.
The seventh section gives authority to the regents to appoint a Provost of the University.
The eighth section provides that "each faculty shall possess the power of appointing its own professors and lecturers."
The tenth section provides "that the professors now appointed and authorized in the College of Medicine of Maryland and their successors, shall constitute [**34]  the faculty of physic; that the professor of theology, together with six ordained ministers of any religious society or denomination and their successors, shall form and constitute the faculty of divinity; 

 [*387]  that the professor of law, together with six qualified members of the bar, and their successors, shall form and constitute the faculty of law; and that the professors of the arts and sciences, together with three of the principals of any three academies or colleges of this state, and their successors, shall form and constitute the faculty of the arts and sciences.
By the ninth section each faculty is authorized to exercise such powers as shall be "delegated" to it by the Regents of the University, for the instruction, discipline, and government of the institution, and of all students, officers, and servants, belonging to it--and the eleventh section provides that the regents shall meet at least once a year, in stated meetings, to be appointed by their own ordinances, "in order to examine into all matters touching the discipline of the institution, and the good and wholesome execution of their laws," with authority when assembled, "to make their own rules of proceeding,  [**35]  and to make fundamental regulations for the government and discipline of the University," and declares that at all such meetings "a majority of the whole number of regents shall be a quorum to do any business, except to vacate the seat of the provost of said University, or of the professors or lecturers; for which purpose the consent of three-fourths of the whole number of the regents shall be necessary, and then only on a formal impeachment," with other sections (as in the act of 1807, ch. 53, for founding a Medical College in the city or precincts of Baltimore) giving to the Regents the capacity to sue and be sued; the authority to make and use one common and public, and one privy seal, and to grant diplomas, and certificates of admission to the office and profession of surgeon, and to the degrees of bachelor and doctor of physic, &c. And the last section professes to repeal so much of the act of 1807, ch. 53, for founding a Medical College in the city or precincts of Baltimore, "as is inconsistent with, repugnant to, or supplied by" this latter act.
It has been asserted in argument, that the corporations created by these three acts are public and not private corporations;  [**36]  and hinted, rather than seriously insisted upon, that if they are to be considered and treated as private corporations, 

 [*388]  and the acts creating them as grants or contracts within the meaning and grasp of the 10th section of the 1st article of the Constitution of the United States, which declares that "no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contract," the act of 1812, chap. 159, violates the provisions of the two preceding acts of incorporation, and is itself unconstitutional and void.
These propositions will be examined.
A corporation may be private, and yet the act or charter of incorporation contain provisions of a purely public character, introduced solely for the public good, and as a general police regulation of the state; such as the Stat. 14th, 15th Henry the 8th, ch. 5, creating the College of Physicians in London, and imposing a fine on persons practising without license from the college, which was held to be a private corporation, Gilbert's Evid. 13, and the statute of the same reign, chap. 42, founding The College of Barbers and Surgeons.
The provisions of the act of 1798,  [**37]  ch. 105, making it the duty of the "Board of Medical Examiners" to grant licenses to such as should apply, and who, on examination, should be found qualified to practise physic or surgery, on their paying to the treasurer ten dollars, and imposing a fine of fifty dollars on such as should practise without having first obtained such license, one-half for the use of the faculty and the other for the use of the informer, are supposed to be practically infringed by the act of 1812, ch. 159, founding the University of Maryland; by which authority is given to the Regents to grant diplomas and certificates of admission to the office and profession of surgeon, and to the degrees of bachelor and doctor of physic, &c. Thus virtually, as it is said, removing the necessity for obtaining a license from the board of medical examiners, and in effect invading the rights of the Medical and Chirurgical Faculty, and impairing its interest in the fees for licenses, and the penalty imposed for practising without license from the board of medical examiners. The same may be said of the act of 1807, ch. 53, by which the same authority is given to the Regents of the college of medicine to grant diplomas and [**38]  certificates of admission to the office and profession 

 [*389]  of surgeon, and the degrees of bachelor and doctor of physic, that is given by the act of 1812, ch. 159, to the Regents of the University. Of this supposed violation of the rights of the Medical and Chirurgical Faculty, that institution is not here complaining, and to which no exception has ever been taken until now, for the first time, by this defendant, having no connexion with that faculty, and professing to act as an officer or agent of a board claiming to be trustees of the University, to the charter of which, this alleged infraction of the corporate rights of the Medical and Chirurgical Faculty is ascribed.
The charter of the University has no express provision dispensing with the necessity of a license to practise from the board of medical examiners, nor authorizing graduates of that institution to practise without such license.
But admitting that to be the effect of the authority to grant diplomas, and that a student of the University having obtained a diploma, would not be under the necessity to procure any other license, and would be entitled to practise without subjecting himself to the penalty provided [**39]  by the act of 1798, ch. 105, and therefore would not be likely to incur the unnecessary trouble and cost of procuring any further license; and that such practical result is equivalent to a direct repeal of so much of the act of 1798, ch. 105, as provides for the payment of ten dollars for a license to practise from the board of examiners, and imposes a fine for practising without such license; and admitting also, that if such repeal would be a violation of the vested and chartered rights of the corporation, created by the act of 1798, and therefore void, and the defendant under the pleadings in this cause, has a right to avail himself of that defence, the most that can be said is, that the act of 1812, ch. 159, is unconstitutional and void, so far only as it authorizes the Regents of the University to grant diplomas, &c. and no further.
But are the rights here set up, as belonging to the Medical and Chirurgical Faculty, such inviolable vested rights as are placed beyond the reach of legislative power?

 [*390]  The legislature possesses the power to regulate the internal police of the state; a political power imparted to that department of the government of which it is difficult [**40]  to say it can entirely disrobe itself. It has among others, the power to pass penal and sanatory laws, and to revoke them at pleasure, as circumstances and experience may require and teach; and, having regard to the health and lives of the citizens of the state, to adopt from time to time such wholesome regulations as may be deemed best calculated to guard against the evils and mischiefs attendant upon the practice of physic and surgery by ignorant and incompetent persons.
That the legislature might at any time, without the intervention of a corporation, have provided for the organization of a board or boards, for the examination of persons applying for admission to the practise of physic or surgery, and imposed a penalty upon any who should practise without having first obtained a license from such board, and afterwards from time to time have adopted other means more or less efficient, for the promotion of the desired end; or, whether wisely or not, have removed the restriction altogether, is a proposition not to be questioned.
Impressed as it would seem, with the sense of the evil consequences flowing from the pernicious practices of pretenders to the art, the legislature in 1798,  [**41]  as a general police regulation, embodied, as it had a right to do, in the act incorporating the Medical and Chirurgical Faculty, with authority to appoint a board of examiners, not being of themselves a corporation, the provisions for examination and license by the board of examiners, on the payment of ten dollars by the party applying, and the prohibition to practise without such license, under the penalty prescribed.
The object is manifest. It was to encourage and promote the acquisition of knowledge in the profession, and thereby to shield the community from the pernicious effects of the ignorance of unskilful pretenders. And the board of examiners was resorted to as the means of effecting that end, and for that purpose may be considered as the agents or officers of the state.

 [*391]  It is difficult to suppose that the legislature, in adopting that regulation of internal police, intended to part with the whole political power of the state over the subject, and to transfer and repose it entirely in the corporation of the Medical and Chirurgical Faculty. The corporation acquired no vested inviolable right to that political power. The provisions under consideration were introduced,  [**42]  not for the regulation or promotion of private purposes or interests, but for a public purpose, the attainment alone of a public end--the prevention of mischief by the ignorant and unskilful, by the punishment of those who should be found offending against the law.
The examining and granting of licenses by the board of examiners to applicants proved to be qualified to practise, was not a franchise nor property, but in terms a duty imposed, and the allowance to the faculty of the fees for licenses, and a portion of the penalty imposed for practising without license, was merely an incident of a public regulation.
To say that the act of 1812 is unconstitutional, because, by construction, a diploma granted to a graduate of the University may entitle him to practise without being subject to a fine for not having first obtained a license from the board of examiners, would be to deny to the legislature the power to pass any law rendering a license by the board of examiners unnecessary, however expedient the further exercise of that political power may be, which we are not prepared to do.
It has been said too, that the 10th section of the act of 1812 is at war with and violates the 8th [**43]  section of the act of 1798, but that will be seen, on a slight examination, to be an entire mistake. The 8th section of the act of 1798 provides that every person who shall be elected a member of the medical faculty, shall pay a sum not exceeding ten dollars, power being before given to the Medical and Chirurgical Faculty to elect other members by the "medical faculty" there spoken of, is clearly intended the "Medical and Chirurgical Faculty" created by that act. There was no other medical faculty then in being, and none other could have been meant.
The act of 1807, ch. 53, provides for a faculty consisting 

 [*392]  of professors and lecturers, to be called the Medical Faculty of the College of Medicine; a separate and distinct institution from the Medical and Chirurgical Faculty. The act of 1812, ch. 159, authorizes the college of medicine, to constitute and annex to itself three other faculties; and declares that the four faculties united, that is, the three to be created and the medical faculty (then existing) of that college, shall be a University. And the tenth section directing how the four faculties of the University shall be constituted, provides that the professors now [**44]  appointed and authorized in the college of medicine, shall constitute the faculty of physic; not the members of the Medical and Chirurgical Faculty, for there were no professors in that institution; and by the "faculty of physic," evidently meaning the medical faculty, one of the four faculties constituting the University; and not the "Medical and Chirurgical Faculty," to which it has no relation, and does not, in any manner whatsoever, interfere with the mode of appointing its members.
Again, it is suggested that the act of 1812, in some of its provisions, virtually repeals parts of the constitution of the College of Medicine of Maryland, and professes by the last section, to repeal all such parts of the act of 1807, as are inconsistent with or repugnant to the latter act, and is therefore void; assuming the corporation of the Regents of the College of Medicine of Maryland, created by the act of 1807, to be a private corporation.
And whether the corporation of the Regents of the College of Medicine is a distinct and independent corporation, separately existing as such in its original character, for the promotion of medical knowledge alone, or has been enlarged and expanded to the [**45]  higher degree and rank of an University by the act of 1812, is the question that will be next examined.
By the act of 1807 it was provided, that there should be a college for the promotion of medical knowledge, by the name of "The College of Medicine of Maryland," established in the city or precincts of Baltimore, to be founded and maintained forever, with a president and professors, and a faculty 

 [*393]  consisting of professors and lecturers, to be known by the name of "The Medical Faculty of the College of Medicine of Maryland," to be appointed from time to time by the regents; and for the management or government of the institution, the president and professors, together with "the members of the Board of Medical Examiners," were incorporated by the name of "The Regents of the College of Medicine of Maryland."
Afterwards, the college being organized, the legislature by the act of 1812, ch. 159, on the petition of the president and professors of the College of Medicine of Maryland, as such, authorized "the college for the promotion of medical knowledge, by the name of the College of Medicine of Maryland," to constitute, appoint and annex to itself "three other colleges or faculties, [**46]  " "The Faculty of Divinity," "The Faculty of Law," and the Faculty of the Arts and Sciences; constituting the four faculties when thus united, an University by the name of "The University of Maryland," empowering the Regents of the University to appoint a provost, and declaring the members of the four faculties together with the provost, to be one corporation and body politic, by the name of "The Regents of the University of Maryland," omitting throughout "The Board of Medical Examiners."
It is sufficient to say of a corporation aggregate, of which various definitions are to be found in the books, some fanciful and metaphysical, that it is an artificial intellectual being, the mere creature of the law, composed generally of natural persons in their natural capacity; but may also be composed of persons in their political capacity of members of other corporations, as in the case of Christ's Hospital of Bridewell, chartered by Edward the Sixth, of which the mayor, citizens, and commonalty of London, are made the governors, and incorporated by the name of the governors, &c. of the hospital of Edward the sixth of England, of Christ Bridewell--so in the cases of the Universities [**47]  of Oxford and Cambridge, of which the many colleges (distinct and separate corporations) within those Universities, form component parts of those larger corporations. 

 [*394]  And the individuals, or any of them who, in their natural capacity compose one corporation, may in the same capacity, compose another distinct and separate corporation; as the president and directors of one bank, or any number of them, may be the president and directors of another bank, or the incorporated managers of any other institution. These undeniable propositions kept in view, will assist in the examination of the question under consideration.
The president and professors of the college or faculty for the promotion of medical knowledge, called The College of Medicine of Maryland, constitute that college or faculty; and the Regents of the College of Medicine, differently constituted, are made the governors and managers of the institution. The act of 1812 authorizes, not the Regents, but the College for the promotion of medical knowledge, consisting of the president and professors, to constitute, appoint and annex to itself, the three other colleges or faculties; thus by the use of the words other colleges [**48]  or faculties, treating and considering the college as itself a faculty, composed of natural persons, having the capacity to act, and through whose agency alone, as natural persons, it could constitute and appoint the other colleges or faculties. If it had been the intention to give the authority to the corporation as such, it would have been given to "The Regents of the College of Medicine," and not to the college or faculty; which, with their assent could as well have been done. But no such assent appears, and the fact, that in the petition of the president and professors of the college upon which the act of 1812 was passed, they ask that "they and others and their successors may be incorporated as Regents of an University, to be called the University of Maryland," shows that the legislature acting upon that petition, meant by the college for the promotion of medical knowledge, by the name of the College of Medicine of Maryland, the faculty or the president and professors constituting the faculty, as distinguished from the corporation of Regents.
The corporation of the Regents of the college, independent 

 [*395]  of the constitution of the United States, or the Bill of Rights [**49]  and constitution of this state, is not destroyed, or merged in the corporation of the Regents of the University; which was originally to be composed of the provost, with the members of the four faculties, omitting the members of the board of examiners, (a component part of the Regents of the college) neither of them being of itself a corporation. That is, the members of the faculty (then existing) of the college, and of the three other faculties to be created; with power given to each, to appoint its own professors and lecturers. The corporation of "The Regents of the College of Medicine," and the corporation of "The Regents of the University," are presented by the acts of 1807 and 1812, as two ideal artificial beings, existing only in contemplation of law, both composed of natural persons and acting through and by the natural agents or persons composing them, respectively. And the professors of the college of medicine originally made members of the corporation of "The Regents of the University," in their natural capacity, and not in a political capacity of members of another corporation; but not therefore ceasing to be members of the corporation of the regents of the college, which [**50]  is not more incompatible with the separate corporate existence of the two institutions, than if they had been made the president and directors of an incorporated bank, or been incorporated alone, or with others, as the governors or managers of any other institution, nor more than the individuals composing any corporation, and at the same time becoming members of another corporation, would be, with the continued existence of both corporations. The corporations of London, and of Christ's Hospital of Bridewell, are separately existing corporations, although the mayor, citizens, and commonalty of London, are incorporated by the name of the governors, &c. of the hospital, &c. of Christ Bridewell, so the many colleges within the Universities of Oxford and Cambridge, are separate and distinct corporations from each other, and from the larger corporations of those respective institutions.

 [*396]  On the 6th of January, 1813, the faculty of physic of the college of medicine of Maryland, appointed and annexed to itself the three other faculties of divinity, law, and the arts and sciences, in pursuance of the act of 1812, and on the 22d of April, 1813; at a meeting of the Regents of "The [**51]  University of Maryland," a provost and secretary were elected.
Although on the original organization of the University, the professors at that time appointed and authorized in the college of medicine, constituted the faculty of physic of the University under the 10th section of the act of 1812; yet it did not follow that they were always to compose that faculty. On the contrary, the words of that section, the professors now appointed and authorized, &c. would seem to imply that they might not, but that as the vacancies occurring from time to time should be filled up, it might become constituted in whole or in part of other persons, there being no restriction in the selection to the professors of the college, and very properly. For if it were otherwise, the faculty itself might become extinct by the dissolution or forfeiture of the corporation of the college.
Besides, if the professors of the college of medicine and their successors, were necessarily at all times to compose the faculty of physic in the University, as the Regents of the college have alone the power to appoint their own professors, the faculty might thus become constituted of incompetent persons, by the injudicious [**52]  appointment of professors by the Regents of the college, (should that at any time happen) to the great prejudice of the character and usefulness of the University, without the means of guarding against such a result.
The college of medicine then, and the University, exist in contemplation of law, as distinct and independent corporations, in possession of all the rights and franchises conferred upon them by the acts of their incorporation, each having the power to keep and use a public and privy seal; to sue and be sued; to acquire and dispose of property, real and personal; to pass by-laws; to grant diplomas; and to perpetuate itself.
And there being nothing in the act of 1807 inconsistent 

 [*397]  with or repugnant to the act of 1812, the last section of the act of 1812 is wholly inoperative, without reference to the question whether the corporation created by the act of 1807 is a private corporation or not; nor could proceedings in nature of a quo warranto be sustained against the Regents of the University, acting under the authority of the act of 1812, for usurpation of corporate franchises, in violation of the rights and franchises of the Regents of the college of medicine. [**53]  The enjoyment and exercise by each, of all the rights and privileges granted them respectively, being entirely compatible, and the powers and authority of one not inconsistent with or opposed to the powers and authority of the other. The legislature having the same undoubted right to establish as many independent colleges and universities in Baltimore (not impairing the rights of others) as may be deemed expedient and proper, that it has to incorporate an additional number of banks.
The next subject of inquiry is, whether the corporation of "The Regents of the University" is a public or a private corporation; if at this day, that can be considered an open question.
A public corporation, is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government subject to the control of the legislature, and its members officers of the government, for the administration or discharge of public duties, as in the cases of cities, towns, &c.; so where a bank is created by the government for its own uses, and the stock belongs exclusively to the government,  [**54]  it is a public corporation; and so of a hospital created and endowed by the government for general purposes of charity.
The corporation of the University has none of the characteristics of a public corporation. It is not a municipal corporation. It was not created for political purposes, and is invested with no political powers. It is not an instrument of the government created for its own uses, nor are its members officers of the government, or subject to its control in the due 

 [*398]  management of its affairs, and none of its property or funds belong to the government. The state was not the founder, in the sense of that term as applied to corporations. It was the creator only, by means of the act of incorporation, and may be called the incipient, not the perficient founder. It gave to it in its creation the capacity to acquire and to hold property, but made to it no donation; and whatever property the corporation has, is its own, to be managed and disposed of by the Regents for the uses of the institution, in such manner as they may judge most promotive of its interests, and not for the uses of the government, nor in the exercise of any political powers, but as [**55]  the trustees merely for the University. It is said there have been subsequent endowments by the state. If it be so, that cannot affect the character of this corporation. If eleemosynary and private at first, no subsequent endowment of it by the state, could change its character, and make it public. But it nowhere appears that any such endowments have been made. Several acts of assembly were passed, authorizing money to be raised by lottery for the use of the University; and by the act of 1821, ch. 88, certificates of five per cent. stock of the state were authorized to be issued by the treasurer, to the amount of $ 30,000, to be appropriated to the payment of the debts of the institution; the medical professors of the University being required to enter into bond for the annual payment of interest on that sum; which can scarcely be called endowments. The authority to raise money by lottery certainly was not; it was a mere privilege granted, which cost the state nothing; and the appropriation of the $ 30,000 to the liquidation of the debts of the institution, on the payment of interest by the professors of one of its faculties, assumes more properly the shape and character of a loan [**56]  to a private corporation for its own private purposes, than of an endowment or appropriation of money for the uses or political purposes of the government.
If it is a public corporation, and its members the officers or agents of the government, and the debts contracted in the due course of that agency, they were debts of the state, contracted 

 [*399]  by its own officers, which the state was bound to discharge, instead of lending money for that purpose, and taking security from the members of one of the faculties for payment of the interest, which will hardly be contended; and certainly the legislature acted upon no such principle.
But it has been urged in argument at the bar, that whenever the end is public, the franchise granted to effect that end is also public. That here, the end was the preservation of life and health, which depend upon the skill of those who minister to the sick, &c. A public end, in which the whole public have an interest, and therefore that this corporation is public.
The same might be said with equal propriety of the college of Physicians, and the college of Barbers and Surgeons, in London; where the preservation of life and health was [**57]  as much the end as here; yet it has never been doubted, that they are private eleemosynary corporations. The act incorporating the college of Physicians was, as this, passed on the petition of certain individuals, and the preamble of the act incorporating the college of Barbers and Surgeons, as of this, recites the benefits and advantages accruing to the public from the establishment of such institutions; and each of those statutes imposes a penalty for practising without license, which would seem to give to the corporation more of a public character than this, which has no such provision.
It is not enough to say, that the public has an interest in the skill and learning of physicians and surgeons. The public has a deep interest in the dissemination of learning and useful knowledge; and so it has in the beneficial results to the community of insurance, canal, rail road, and turnpike companies, &c. The uses or objects may, in a certain sense, be called public; but the corporations as distinguished from the uses or objects, are private.
The objects for which almost, if not all corporations are created, are such as the government deems it expedient to promote, upon the supposition [**58]  that they will be beneficial to the public, and these expected benefits constitute the chief, and usually the only consideration of the grants.

 [*400]  The distinction is between the franchise granted, and the expected beneficial results to the community, from the possession and exercise of the franchise, upon the performance of the implied condition of the grant to exert the rights acquired, in a manner suited to the promotion of the objects proposed. The institution, the bank, canal, rail road, college, &c. from the nature of its particular object, and the interest the public has in that object may, and commonly does acquire, in a popular sense, the character of a public institution; but the corporation, the artificial being composed of natural persons for the management of the affairs of the institution, in contemplation of law is private; as much so as the individuals composing it were, before the act of incorporation imparted to them an artificial existence, with power to take and hold property in that particular form, and for particular purposes, which is all the act of incorporation does, and that only because the particular objects can best be effected in that particular [**59]  form. But not therefore making the artificial being or corporation an instrument, nor the persons composing it members of the civil government of the country.
Suppose an association of private individuals had contributed funds in real or personal property, for the establishment and conduct of this very University, (which, in legal understanding, would be a private charity,) and had appointed professors, and constituted them governors and managers of the institution, and of the appropriated funds; the objects being the same as now, the promotion of religion, and the dissemination of scientific, literary, and medical knowledge, and the interests of the public in those objects the same; could the governors so appointed be considered public officers, or members of the civil government? and if not, why should the artificial being created by law, and composed of the same persons for the same purposes, thereby become a part of the civil government, and a public corporation? A private charity cannot, by a mere act of incorporation, be made a public one. In the language of Lord Hardwicke, "the charter of the crown cannot make a charity more or less public, but only more permanent 

 [*401]   [**60]  than it would otherwise be." 2 Atk. 88, and that is the settled law upon the subject.
Again, "a charity may be public, though administered by a private corporation; and to hold a corporation to be public, because the charity was public, would be to confound the popular with the strictly legal sense of terms, and to jar with the whole current of decisions from the time of Lord Coke. 2 Kent's Com. 273.
Public corporations are to be governed according to the laws of the land, and the government has the sole right, as trustee of the public interest, to inspect, regulate, control, and direct the corporation, its funds and franchises. That is of the essence of a public corporation. But it has no such right in relation to eleemosynary corporations, or the management of their affairs. That belongs to the visiters alone, under the visitatorial power incident to such corporations. Angell and Ames on Corp. 410. 2 Kyd. on Corp. 174. 2 Kent's Com. 299, 300. Philips vs. Bury, 1 L. Raym. in 2 Term. R. 346, &c. &c. And where trustees or governors are incorporated to manage the charity, the visitatorial power is deemed to belong to [**61]  them in their corporate character. 4 Wheat. 518, 675. Story J. Phillips vs. Bury, 1 L. Ray. in 2 Term. R. 346. Ang. and Ames, 412. 2 Kent's Com. 301.
The Regents of this University are made the visiters by the terms of the act of 1812, the 11th section of which authorizes them to "vacate the seat of the provost or any of the professors," and requires them to meet in annual and other stated meetings, "in order to examine into all matters touching the discipline of the institution, and the good and wholesome execution of their laws." And all the authorities agree that colleges and academies established for the promotion of learning and piety, and endowed with property by public and private donations, are, in a legal sense, equally with hospitals for the relief of the poor, sick, &c. considered and treated as private eleemosynary corporations.
It is the acknowledged law in England, received and acted upon in the courts of this country, and asserted by the elementary 

 [*402]  writers. Phillips vs. Bury, 1 L. Raym. 5, and 2 Term. R. 346. Lord Hale's opinion confirmed by the House of Lords, Dartmouth College vs. Woodward, 4 Wheat. 518. [**62]  Allen vs. McKeen, 1 Sumner R. 276. Society, &c. vs. New Haven, 8 Wheat. 464, &c. 1 Kyd. on Corp. 25. Angell and Ames on Corp. 2 Kent's Com. title Corporations. This then is a private eleemosynary corporation, differing from a college only in degree.
The extent of the property or funds it may have acquired by donation or otherwise is not material; the capacity expressly given to acquire and hold property in perpetuity, for the uses and purposes of its institution, is the same thing, so far as concerns its character as a corporation, as the actual acquisition of it would be. It appears from the statement of the evidence, that it has been endowed to a small amount by private donations, and no donations that it can derive from the bounty of the state would change its character, and convert it into a public corporation.
That a charter or act of incorporation, when accepted, is a contract, is a proposition too self-evident and universally assented to, to be drawn in question, or to require the aid of argument or authority to support it. There is no dictum opposed to it to be found in the books; and it would be strange if there was, assuming [**63]  (what is no where denied, and cannot be,) that the government can compel none to become an incorporated body without their consent; and that acceptance of an act or charter of incorporation, is necessary to the creation of a corporate body. The grant being of the powers and franchises conferred, and the stipulation on the part of the government, that they shall be held and enjoyed on the implied condition, that they are to be exercised in the promotion of the objects of the charter; and the acceptance being an implied undertaking on the part of the grantees, that they will, in consideration of the charter and the franchises granted, perform the condition; which, as it cannot be forced upon them against their will, is necessarily a subject of contract, requiring the concurring assent of the parties respectively 

 [*403]  concerned, and ripens into a contract for the fulfilment of the terms of the charter, when that concurrence is manifested by acceptance. In the King vs. Pasmore, 3 Term. R. 97, Buller, J. said, "I do not know how to reason on this point better than in the manner urged by one of the relator's counsel, who considered the grant of incorporation to [**64]  be a compact between the crown and a certain number of the subjects, the latter of whom undertake, in consideration of the privileges which are bestowed, to exert themselves for the good government of the place."
The act of 1812, then, incorporating the Regents of the University of Maryland, being by acceptance a contract between the state and the corporation, the organization and continuing existence of which have been recognized by various subsequent acts of the legislature, is it a contract protected by that clause of the Constitution of the United States, which declares that "no state shall pass any law impairing the obligation of contracts?" This question would seem to have been fully settled by the decisions in the cases already cited, of Dartmouth College vs. Woodward, Allen vs. McKeen, and the Society, &c. vs. New Haven. The contract on the part of the state is, that the Regents shall have the capacity and right to acquire and hold real and personal property in perpetuity in their corporate character, to sue and be sued, a power essential to the protection and enjoyment of the property they may acquire; to pass ordinances and make fundamental regulations for the discipline [**65]  and government of the University; as governors and visiters to examine into all matters touching the discipline of the institution and the due execution of their laws, and to amove the provost or any of the professors on impeachment.
It cannot be denied, that the franchises granted by the act of incorporation are vested rights, and can they be taken from the Regents by any act of the legislature without impairing the obligation of the contract, that they shall be possessed and enjoyed by them and their successors in their corporate character? It is very clear they cannot, and that no 

 [*404]  act of the legislature of the state can effect that object without the assent of the corporation, if the prohibitory clause of the tenth section of the first article of the Constitution of the United States is applicable to such a contract as this; and no reason is perceived why it should not be held to apply as well to such contract as to any others, considering and treating this as a private corporation. Neither the character or nature of the contracts intended to be protected, nor of the contracting parties is defined. The generality of the prohibition "no law impairing the obligation of [**66]  contracts," without any description of contract or parties, or any words of restriction, would seem sufficiently to show the intention of an equally general and unrestricted application, and embraces in its letter such contracts as this. It is not meant to be denied that there may be contracts not within the spirit of, and therefore not embraced by this prohibitory clause. But this being a contract clearly within the words of the prohibition, it is for those who would exclude it from the operation and protection of the constitution, to show that a strict adherence to the letter would be so inconsistent with, or repugnant to the spirit of that instrument, as to authorize the making it an exception.
There is no known rule of construction that would justify or permit an exclusion from the operation of the constitution of any contract plainly comprehended by its words, in the absence of any thing to show that it is not within its spirit. What is there to be found in the constitution distinguishing contracts of this description from any other contracts, or tending in the slightest degree to show that they were not intended to be protected? There is nothing in their character to invite [**67]  such a distinction, but much to invoke the aid of the framers of the constitution; and surely they are quite as worthy of protection as thousands of other contracts, confessedly shielded by the same provision of the constitution.
It has been suggested, that no consideration passed for this grant to give it the binding force of a contract, and that merely voluntary contracts are not within the prohibitory clause of 

 [*405]  the constitution. It is true, that the constitution did not mean, nor does it profess to create any new obligations, or to impart efficacy to contracts void in themselves. But it did intend to preserve the obligatory force of valid contracts; and the principle advanced is not applicable to this case, which does not rest in a mere voluntary engagement to grant, but was an actual grant, in consideration of the benefits expressed in the preamble to be derived to the community, of corporate franchises, which are incorporeal hereditaments, considered in law as property, and properly the subjects of grant, involving a contract that the state should not resume, and that the Regents should hold and enjoy the grant, and all the rights derived under it; and it will scarcely [**68]  be said, that such a consideration, the dissemination of learning and useful knowledge, in which the country has so deep an interest, is not a sufficient consideration, and that the payment of a pecuniary consideration is necessary to the validity of a grant by the state. Would it, or could it be said, that a voluntary donation from the state, by a grant of land to this institution, authorized to receive such donation, would be void, and that the land so given could be taken away again by the state at pleasure, and given to another. If not, neither can the franchises, the incorporeal hereditaments conferred by this act of incorporation, be taken away.
The principle is the same, equally applicable to both, and one is just as irrevocable and inviolable, as the other,--property, though of different descriptions, being the subject of each--among the rights granted, is that of acquiring and holding property in perpetuity; and the state is pledged not only to the corporation, but to all donors to the institution on the faith of this contract; and to revoke it, would be to violate the plighted faith of the state, that it shall remain inviolate. If the state has a right to revoke at will,  [**69]  this grant, it has the same right in relation to rail road, canal, and other corporations, which will not be pretended.
This brief view of the character and legal effect of the act incorporating the Regents of the University, results in the 

 [*406]  opinion, that it is a contract protected by the Constitution of the United States, the obligation of which cannot be impaired by any act of the legislature of the state, without the assent of the corporation; and leads to the conclusion, consequent upon that opinion, that the act of 1825, ch. 190, is repugnant to that instrument, and therefore void. It recognizes the organization and existence at that time of the corporation created by that act, and states in the preamble, that the good government and discipline of the University require important alterations in the act of incorporation. It professes to discontinue and abolish the board of Regents, and the members of its several faculties, declaring that the faculties shall consist of professors alone; to appoint a number of persons by name, to be known by "the corporate title of trustees of the University" of Maryland; to invest them with all the powers and privileges before belonging [**70]  to the corporation of the Regents, with power to elect a vice-president, and to appoint and dismiss the provost, professors, and lecturers, at pleasure; to establish new professorships, and to abolish old ones; and to make by-laws for the regulation and discipline of the institution; declares that the governor of the state for the time being, shall be ex-officio president of the board of trustees; that all the pecuniary concerns of the University shall be under the control and direction of the trustees, who shall have power to appoint a treasurer, and direct and control all expenditures of money; that all money thereafter raised or appropriated for the benefit of the University, shall be paid to the trustees, or to an officer appointed by them to receive it; that all the rights of property then possessed by the Regents, shall vest in the trustees; that vacancies occurring in the board of trustees shall be filled up by the executive of the state, and that, that act should go into effect and operation on the first day of June, 1826,--and it professes to repeal all such parts of the act creating the corporation of the Regents of the University, as are inconsistent therewith. If it is [**71]  possible to pass an act impairing the obligation of a contract, this is that act, if the act creating 

 [*407]  the corporation of the Regents of the University is, in legal understanding, a contract. It attempts to do more than impair the obligation of the contract. Except for the protecting shield held over it by the Constitution of the United States, it would have the effect to annul it altogether, if there be not some inherent principle in the government of the state to forbid it. It not only aims to strip the existing corporation of the Regents of all the privileges and powers conferred upon it by the act of its creation, but to destroy the old corporation, and to create a new one in its place; and to give to the corporation of its own creation, all the same powers and privileges, with additional and important powers--such as the election of a vice-president, the appointment and dismission of professors, lecturers, &c. at pleasure, and the establishment of new professorships, and the abolition of old ones; to cause all money raised or appropriated for the benefit of the University to be paid to the corporation of "the trustees," and to vest in that corporation all the rights [**72]  of property belonging to the corporation of the Regents; thus not only to deprive the Regents of the capacity to acquire and hold property in perpetuity in their corporate character, but to take from them the property they have already acquired and give it to the corporation of trustees, and to connect that corporation with the political power of the state, by declaring that the governor for the time being shall, ex-officio, be the president of the board of trustees, and that the executive of the state shall fill up all vacancies occurring in the board of trustees.
"It is a franchise for a number of persons to be incorporated and subsist as a body politic, with a power to maintain perpetual succession, and do other corporate acts." 2 Black. Com. 37. And by the act of 1812 it is expressly stipulated by the state, that this franchise, the corporation of the Regents of the University, shall continue for ever. And yet the act of 1825 professes, in words, to abolish the board (or corporation) of Regents, and declares that the several faculties shall thereafter consist of the professors alone. It then proceeds to appoint and incorporate a number of other persons 

 [*408]  by name,  [**73]  to be known and distinguished by the corporate title of "the Trustees of the University of Maryland," and as if that was not enough, concludes with a repealing clause of every part of the act of 1812 inconsistent with its provisions; that is, to suffer so much of the act of 1812 as declares that there shall be an University established to remain in force, but to annul entirely the existing corporation, and to create another, constituted of different persons, to possess and exercise all the franchises (and more) granted to, and the property actually acquired by the former; keeping in mind, that in one case the corporate body, the artificial being composed of natural persons, the Regents, is the corporation attempted to be destroyed; and that in the other, the corporate body, the artificial being composed of other natural persons, the Trustees, is the corporation attempted to be created and substituted in its place, and not the University.
But the objection to the validity of the act of 1825, does not rest alone for support upon the construction of the Constitution of the United States. Independent of that instrument, and of any express restriction in the constitution of the state,  [**74]  there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact, (in this country at least) the character and genius of our government, the causes from which they sprang, and the purposes for which they were established, that rises above and restrains and sets bounds to the power of legislation, which the legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty, and property of the citizen from violation, in the unjust exercise of legislative power.
The legislature has no right, without the consent of a corporation, to revoke or alter its charter, or take from it any of its franchises or property; they are alike beyond the reach of legislative power here, and the high prerogative power of the crown of England, which may create, but cannot at pleasure dissolve a corporation, or without its consent alter or amend its charter.
The parliament of England has been said to be omnipotent. 

 [*409]  But restrained by public opinion, it has not undertaken to dissolve any corporation since the instances of the suppression of the Order of Templars in the time of Edward the Second,  [**75]  and of the religious houses in the reign of Henry the Eighth, and that power may be considered at this time as resting mainly in theory.
When in 1783, a bill was introduced for the purpose of remodelling the charter of the East India Company, it was successfully opposed by Mr. Pitt and Lord Thurlow, as subversive of the law and constitution of the country; and in the strong language of Lord Thurlow, "an atrocious violation of private property, which cut every Englishman to the bone." And it might be said, that the possession and exercise of such a power by the legislature of this state, would cut every free citizen of Maryland to the bone; not that a corporation is clothed with any peculiar sanctity, or that its property and rights are to be deemed more sacred and inviolable than the property and rights of any private individual. But, because the property and franchises of a corporation are private property, regarded as such by the law, and under the safeguard of the same principle, that protects and preserves from legislative violation the property and rights of individuals in their natural character. The law knows no distinction; if one can be invaded, so can the other. Vested,  [**76]  corporate, and individual rights, resting for protection on the same principle, the power to violate the former would necessarily involve the power to prostrate the latter; which would be at war with the purposes for which the social compact was entered into; and the nature and ends of legislative power, would furnish no limit to the exercise of it, as it was intended they should do.
To say that the legislature possesses the power to pass capriciously or at pleasure a valid act, taking from one his property and giving it to another, would be in this age, and in this state, a startling proposition, to which the assent of none could be yielded; and yet there is nothing to forbid it, if it is once conceded that they have the power to dissolve one corporation, 

 [*410]  and take from it its franchises and property, without its consent, and transfer them to another.
But the bill of rights, which together with the form of government composes the constitution of this state, is not silent upon the subject. The sixth article declares, "that the legislative, executive, and judicial powers of government, ought to be forever separate and distinct from each other."
The legislature, executive,  [**77]  and judiciary, are all creatures of the constitution, each confined in its action to the circumscribed sphere assigned it, and cannot rightfully exercise any power which is repugnant to that instrument, or not within their respective sphere of action.
The province of the legislative department of the government is to make laws, confining itself within the limits prescribed by the constitution. It cannot usurp the powers confided to either of the other departments, without violating the declaration in the bill of rights, that they shall be forever separate and distinct from each other, which would be a subversion of the principles that lie at the foundation of the government. For if the legislature could, without control, exercise judicial as well as legislative powers, the tenure of every thing dear and valuable to the citizen, would be, the unrestricted will of that body; to guard against which, the provision was introduced for a division of the powers of the government.
It is not to be presumed that the legislature can ever have a wish, or would intentionally abuse or exceed its just powers. But it may (as it sometimes has done) incautiously and unadvisedly step beyond the strict [**78]  limits of its authority; and it is the province and duty of a court, when called on judicially to decide upon the validity of the act, to pronounce it void, if satisfied that it is not warranted by the constitution; that being the paramount law to which all acts of the legislature not authorized by it, must yield.
This power and duty of the judicial department were asserted by the late general court in Whittington vs. Polk, 1 H. & J. 236, and have been since by this court, in several 

 [*411]  cases, among which are Crane vs. Meginnis, 1 Gill and Johns. 463, in which an act of assembly passed in 1823 divorcing C. Meginnis and Mary his wife, and directing C. Meginnis to pay annually thereafter three hundred dollars to a trustee who is named, for the use of Mary Meginnis, was adjudged to be unconstitutional and void, so far as it directed the annual payment by C. Meginnis of three hundred dollars to a trustee for the use of Mary, on the ground that it was an exercise by the legislature of judicial power. The provision for the payment of the annuity being considered as a legislative decree of alimony, which is recoverable in this state [**79]  only on proceedings in chancery. And in Berrett vs. Oliver, 7 G. & J. 191, an act of the legislature declaring certain deeds and decrees to be void, and divesting certain persons named of real and personal property held under them, and vesting it in W. E. Berret, was pronounced to be a violation of the provision in the bill of rights, "that the legislative, executive, and judicial powers of government, ought to be forever separate and distinct from each other," and of the constitution of the United States, that "no state shall pass any law impairing the obligation of contracts," and utterly null and void.
The act of 1825 is obnoxious to the same objection. It professes to discontinue and abolish the corporation of the Regents of the University; to appoint a board of trustees composed of different persons, under the corporate name of the Trustees of the University of Maryland, "and to transfer to the new corporation thus attempted to be created, all the franchises and property of the corporation intended to be abolished; which, if effectual, would amount to a legislative ouster; a legislative judgment of dissolution; an exercise of judicial power not warranted [**80]  by the constitution. A sentence of ouster or of dissolution, being strictly a judicial act, for some imputed delinquency ascertained on proceedings at law instituted for that purpose, which, though assuming the garb of a law, the legislature not being invested with a judicial power, is not competent to pass without the consent of the corporation.

 [*412]  The division of the powers of the government proclaimed by the sixth article of the bill of rights, and the twenty-first article of the same instrument, declaring, "that no free man ought to be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers or by the law of the land," were intended as restraints upon the legislative power, by means of the courts of justice in which the laws were to be administered, and where all would be entitled to be heard, and have an opportunity afforded them of asserting and defending their rights against any attempted invasion. By "the law of the land" is meant, by the due course and process of the law. Co. Ins. in the commentary upon the same [**81]  words in Magna Charta. The general law, prescribed and existing as a rule of civil conduct, relating to the community in general, judicially to be administered by courts of justice. An act which only affects and exhausts itself upon a particular person, or his rights and privileges, and has no relation to the community in general, "is rather a sentence than a law." 1 Blac. Com. 44. A sentence that condemns without a hearing, and the very passing of which implies the absence of any general law or rule of civil conduct, by which the same purpose could be judicially affected in a court of law.
If the transferring one person's property to another, by a special and particular act of the legislature, is a depriving him of his property, by or according to the law of the land, then any legislative judgment or decree, in any possible form, would be according to the law of the land, although there existed at the time no law of the land upon the subject, and that too by a tribunal possessing no judicial power, and to which all such power is denied by the constitution. Such a construction would tend to the union of all the powers of the government in the legislature, and to impart the [**82]  attribute of omnipotency to that department, contrary to the genius and spirit of all our institutions; and the office of courts would be not to declare the law or to administer the justice of the country, but to 

 [*413]  execute legislative judgments and decrees, not authorized by the constitution. The act of 1825, therefore, though bearing the form of a law, being in effect a legislative judgment of dissolution of the corporation of the Regents of the University, is, in this view of the subject, unconstitutional and void.
It is not intended by these remarks, to call in question the various general laws for quieting possessions, &c. which the legislature has been in the habit of passing, both before and since the adoption of the present constitution of this state, nor to impeach the decisions upon these laws, which have been considered as resting upon different principles; though it may be that the legislature has sometimes been unadvisedly drawn into the passing of such a law, to effect a particular purpose, not known to and concealed from that body at the time; which, if any such case exists, points to the necessity for great caution in the passing of such a law, and furnishes [**83]  an additional reason for objection to the exercise by the legislature of judicial power.
In Norris vs. The Abingdon Academy, 7 G. & J. 7, an act of the legislature vesting the government of the academy in a new board of trustees, was decided by this court to be a violation of the rights of the old corporation, forbidden by the Constitution of the United States, and therefore void. The decision of that case was founded upon the prohibitory clause alone of the Constitution of the United States, which applies equally and with the same force to this, if there be nothing in the facts and circumstances of the case to exempt it from the operation of that instrument.
But it has been strongly urged, that if the act of 1825 was not passed with the previous consent of the corporation of the Regents, there was enough to authorize the inference by the jury of a subsequent assent and acceptance. It is perfectly clear that there was no previous consent, nor any evidence whatsoever offered, tending in any manner to prove such consent. On the contrary, the only evidence relating to that point, was that produced on the part of the plaintiff, with nothing offered on the part of the [**84]  defendant to rebut it, 

 [*414]  or in any way to weaken its force. First, the report of a joint committee of the two houses upon which the act was passed. In that report it is stated by the committee, to be their opinion, that the charter of the Regents "is radically defective, and requires fundamental alterations," that the difficulty of getting a quorum of the Regents to meet, and the want of time prevented them from ascertaining the opinion or wishes of the Regents as a body, with respect to alterations of the charter, "that there is nothing in the nature of the act of incorporation which deprives the general assembly of the constitutional power of making the change proposed by them, without the formal assent of the persons incorporated, and that assent is only necessary when a charter of incorporation is in the nature of a contract, as a bank charter, for instance, where a bonus has been stipulated in favour of the state, and where a consideration which would give binding force to a contract, has been paid." That report was adopted, and the changes proposed by the committee, embodied in the act founded upon it. The proceedings then of the legislature, manifestly show that [**85]  no previous consent had been given; but on the contrary, that the committee charged with that subject, had been unable to ascertain the opinion or wishes of the Regents as a body in relation to an alteration of the charter, and that the legislature had been drawn into an error, and passed the act under the impression made by the ill-founded suggestion of the committee, that in the absence of a pecuniary consideration being paid for it, the charter had not the binding force of a contract, and therefore, that the consent of the corporation was unnecessary. And secondly, that on the 17th of March, 1826, soon after the act was passed, (which was on the 6th of March, 1826, at the December session, 1825,) at a regular corporate meeting of the board of Regents, a resolution was adopted with but one dissenting vote, that a committee of five, who were appointed for that purpose, should take the opinion of counsel upon the constitutionality of the act, with another resolution unanimously adopted, directing the committee, if the opinion so 

 [*415]  obtained should be that it was unconstitutional, to prepare an address to the governor of the state, and to the trustees appointed for the [**86]  government of the University, informing them of such opinion, and requesting them to defer acting until the act that had been passed, could be re-considered by the legislature, and in the event of the trustees determining to proceed, to adopt such legal measures as might be deemed necessary to resist the operation of the act. And that the committee having obtained from counsel an opinion that the act was unconstitutional, on the 22d May, 1826, and before the corporation of trustees went into operation, addressed a letter to the governor, and to each of the trustees, advising them of the opinion, and requesting them to suspend measures for carrying the act into operation until an application could be made to the legislature at their next meeting for a repeal of it; informing them, that they were prepared on the part of the Regents to make such arrangements with them as would produce the speediest judicial decision of the question, if they should deem it inexpedient to accede to the proposed delay, and requesting a reply to that communication, which does not appear to have been made. So that, there was not only no evidence whatsoever, of a previous corporate assent to the act of 1825,  [**87]  but an unequivocal subsequent dissent, expressed by solemn corporate acts before it was carried into operation, or the arrival of the time, (the 1st of June, 1826,) when by its own provisions it was to take effect. Which subsequent dissent, and proceedings of the corporation of Regents, independent of the report of the committee of the legislature, precludes the idea of any previous assent, and leaves no ground for presumption or inference of a subsequent assent prior to the 1st of June, 1826, when the trustees, in defiance of the corporation of Regents, and in disregard of its dissent, thus solemnly expressed and formally communicated, organized themselves as a corporation, under the supposed authority of the act of 1825. Still it has been contended, that the conduct and course of the corporation of Regents, after the organization of the corporation of trustees, were such, as to afford 

 [*416]  evidence proper and sufficient to be left to the jury, from which to infer the assent from that time, of the former, to the act for the incorporation of the latter, and its acceptance of that act.
It may well be questioned, whether, and indeed it is difficult to perceive how, an unconstitutional [**88]  act of the legislature, can be made constitutional and valid, by a subsequent acquiescence in it. The whole community "have an interest in preserving the constitutional limitations upon the exercise of legislative power." How can the subsequent approval of, or assent to it, give to the legislature a power, which it did not possess at the time it was passed: and if it cannot, how can it give effect to the act itself, which was passed without authority? But be that as it may, and to proceed: An act of incorporation may be offered for acceptance, and when accepted by those to whom it is offered, it becomes a contract. If the act of 1825 had been made to take effect when, or if assented to by the corporation of the Regents, it would until that assent was given, have been in fieri; and when given, a law, if accepted by the trustees; and that would not have been unconstitutional. Parties to a contract have a right to rescind it, and as between the state and the corporation of the Regents, such a provision would have amounted to an offer on the part of the state to rescind the contract of the act of 1812, and if assented to by the corporation, would have been an abrogation of it. But [**89]  no such offer was made. The act of 1825 was a peremptory and unconditional dissolution of the corporation of the Regents; made by its terms, to take effect with or without its consent, and manifestly passed under the impression, that no consent was necessary.
It is not intended by what has been said, to deny that an act for altering a charter, to the passing of which, previous assent has not been given, can be constitutional, unless it contains an express offer for acceptance, or is made by its terms to depend upon a subsequent assent. The passing of it with nothing more, amounts to an offer only for acceptance; 

 [*417]  and if afterwards accepted, either expressly or by acting under it, it then receives life, and becomes an operative law--as in the cases of the various acts altering or amending existing bank and other charters.
And here it is proper to remark, that the question of acceptance does not, and cannot arise in this case. The act of 1825 did not propose merely to alter or amend the existing charter of the Regents, or to give them another; but to give a new charter to the trustees named. There was nothing therefore for the Regents to accept, or to reject. They could [**90]  neither reject or accept that which was not offered to them, but attempted to be given to others. The trustees alone had the privilege to reject or accept the act of incorporation that was offered to them--and the Regents were put without the pale of the consideration of the legislature. The question then, is not whether the corporation of Regents accepted the act of 1825, but whether there was any evidence of its having assented to it, after the organization of the corporation of trustees.
It appears that after the trustees had organized as a corporation, all the members of the faculty of physic, and members of each of the other faculties, were appointed, and accepted situations under them as professors; and that, from that time the corporation of the Regents ceased to exert its corporate functions, until the month of September, 1837, and this is considered as evidence to prove the assent of that corporation to the act of 1825.
It is admitted that the acceptance of an act of incorporation by the persons to whom it is offered, or the assent of an existing corporation to an act for an alteration of its charter, may be inferred from facts demonstrative of such acceptance or assent, [**91]  without the production of a written instrument or vote of acceptance or assent on the books of the corporation; such as in the first case, the fact of actual organization, which furnishes the presumption of previous acceptance, or may be considered, as of itself an act of acceptance, and in the latter, acts and transactions by the corporation or its 

 [*418]  authorized officers, in pursuance of the proposed alterations of the existing charter, showing the assent of the corporation to such alterations. But the acts, from which the assent of an existing corporation to an alteration of its charter, may and can alone be inferred, must be corporate acts, acts of the corporation, or acts of its authorized officers or agents. It is a vital principle of a corporate body "that the members are to do no act which may destroy its existence, or injure its privileges." 3 Desaus. 574. 2 Binn. 441. "Particular members may express their private consents to any act, by words or signing their names, yet this does not bind the corporation." 1 Black. Com. 575. Angell and Ames on Corp. 107. And "since individual members of a corporation cannot, unless authorized, bind the body [**92]  by express promises, neither can any corporate engagements be implied from their unsanctioned conduct or declarations, as corporations can be bound only by joint and corporate acts, so it is only from such acts, done either by the corporation as a body, or by its authorized agents, that any implication can be made binding it in law." Ib. 130. Proprietors of the Canal and Bridge Co. vs. Gordon, 18 Mass. 297.
If no corporate engagement can be implied from the unauthorized conduct or declaration of individual members, if no implication can be made from them, binding in law upon the corporation, in relation to ordinary transactions, on what principle, can any inference be drawn from them, going to the very existence of the corporation? In this case, the members of the different faculties who accepted situations under the corporation of the trustees, were not in doing so, acting as the authorized agents of the corporation of Regents, nor for any thing that appears, under the sanction of any corporate act of assent to the act of 1825, but in disregard of solemn and express corporate acts of dissent, and protestation against the carrying that act into operation by the [**93]  trustees--and the law does not permit any inference of assent to that act, by the corporation of Regents, to be drawn from such doings--and more particularly, in the face of its clearly 

 [*419]  expressed dissent. The most that can be said of it is, that the individual members who accepted places under the trustees, wanted situations which they were afraid of losing, and acted alone under that impulse. Then, what act, corporate or otherwise, was done by the corporation of Regents, showing or implying, or legally tending to show its assent to the act for incorporating the trustees, and for its own dissolution? It was in full existence and operation when it was passed, as the record shows. It protested against it after it was passed, and requested the trustees not to carry it into execution. That was no act of assent. A number of its members took situations and acted under the trustees, which it could not prevent; that was no assent by the corporation, but by doing so, and withholding themselves from the discharge of their duties as members of the corporation of Regents, though they did not therefore cease to be members, they caused that corporation as a result of the act of 1825,  [**94]  to cease from that time to perform its functions until September, 1837, when the members who had taken situations under the trustees, resigned them, and returned to their duty. During that time it was passive and did nothing, yielding only (as the members who accepted places under the trustees had done) to necessity, and doing no act, from which its assent could be implied, and in the absence of any written instrument or vote of assent, some other act of the corporate body, or of its authorized agent affording the presumption of its assent, should have been produced; and the more particularly, as it is an act not beneficial to the corporation, but one that aims directly at its dissolution, and the presumption in the absence of any express corporate act to the contrary, would rather be against the assent; seeing, that the last corporate act it did, was a vote of express dissent. It was unwilling submission only to legislative power and influence, and not an adoption of its act.
In Allen vs. McKean, 1 Sumn. 276, where a corporation passed a resolution that they acquiesced in an act of the legislature, it was decided not to be an adoption of it, but expressive 

 [*420]   [**95]  of mere submission to the legislative will; and that if it could be construed into an approval, it could not give effect to an unconstitutional act. Suppose none of the members of either of the faculties of the corporation of Regents had taken office under the trustees, and they had appointed others and gone into operation; and that the corporation of Regents had by no act assented to the act of 1825, but have become wholly inactive, and performed none of their corporate functions; such non-user, if it would have been deemed sufficient cause of forfeiture, on proceedings at law instituted for that purpose, would have been no evidence of assent to the act; but neglect of duty, or a violation of the implied condition of its contract, for which it would have deserved to be dissolved. But the act of 1825 could not have taken the place of judicial proceedings to work a dissolution, and thereby become valid and effectual. Neither non-user nor mis-user of corporate franchises, has ever been held sufficient to authorize the granting the same franchises to others, before a forfeiture has been judicially declared. And how in principle, does this case differ from that which has been put, supposing [**96]  for a moment, that the conduct of the corporation of Regents was such as to have furnished sufficient cause of dissolution upon judicial proceedings? But here it is proposed to give effect to an act of assembly, which was passed before any cause of dissolution existed; on the ground that assent by the corporation to that act, arising from a supposed subsequent cause of forfeiture might be presumed; which cannot be against the express dissent of the corporation by a formal vote. An inference of assent by a corporation to an act of assembly, after it has passed, can no more be drawn from a subsequent non-user or mis-user of its franchises, than an inference of consent to its being passed, can be drawn from a previous non-user or mis-user, which is no where pretended; otherwise, there would be no necessity for a judicial ascertainment and declaration of forfeiture, before a new charter can be granted. Nor can effect be given to this act of assembly by considering the non-user by the corporation of Regents, 

 [*421]  as equivalent to a surrender of its franchises. That can only be done by deed to the state. 1 Salk. 191. Angell and Ames on Corp. 507. 2 Kent's Com. 311,  [**97]  et al. And a court is not warranted to presume a surrender of the corporate rights and a dissolution of the corporation, from a mere intentional abandonment of the franchises, unless there be something in the act of incorporation to justify it; as in the case of some of the incorporated companies in New York, under which, for the sake of the remedy and in favour of creditors, the courts of that state have acted upon such presumption. Slee vs. Bloom, 19 Johns. 456. Briggs vs. Penniman, 8 Cow. 387. But those cases go no further, and recognize the general rule. And if an actual abandonment of the corporate franchises will not warrant the presumption of a virtual surrender of the corporate rights, and a dissolution of the corporation, how can the assent of a corporate body, to an act dissolving the corporation, be inferred or presumed from a mere non-user of the franchises produced by that very act? and that too, in the face of a corporate act of express dissent, remaining unrescinded on the books of the corporation. In no view, therefore, is it believed, that effect can be given to the act of 1825; and whatever may be the condition of the corporation [**98]  of the Regents, the trustees have no authority, as governors of the University, under that act.
But it has been again further contended, that the faculty of physic of the University, became dissolved or extinct on the acceptance by the professors of professorships under the trustees, which it is supposed amounted to resignations of their situations as members of the corporation of the Regents; and that by the loss of that integral part the corporation became dissolved, and incompetent to institute or sustain this suit.
The same argument would perhaps equally apply to some of the other faculties; and if either of the faculties was thereby lost, and not restored at the time of bringing the suit, the objection would be fatal to a recovery, whether the corporation was dissolved or only suspended (perhaps more properly the latter) considered as a corporation of integral parts, and 

 [*422]  not existing as a corporation de facto. But their accepting situations under the trustees, did not, in law, amount to resignations of their professorships in the corporation of the Regents. "An office in a corporation may be resigned in two ways: by an express agreement between the officer and [**99]  the corporation, or by such an agreement implied, from his being elected to another office incompatible with it." And "to complete a resignation, it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books, or electing another person to fill the place, treating it as vacant." Willcock on Municipal Corporations, 14 Law Lib. 132, 133, 238, 240. Angell and Ames on Corp. 254, 255. It is incidental to the right to appoint. Ib.
By an election to "another incompatible office," is meant another office in the same corporation, as is shown by the several examples put in the same books. Here the several members of the corporation of Regents, who accepted offices under the trustees, were not elected to other offices in the corporation of Regents, but to offices in another corporation; and there is no evidence of any acceptance of their resignations by the corporation of the Regents, by any entries in their books, or the elections of other persons to fill their places treating them as vacant, or in any other manner; nor is there any evidence of their having offered to resign. If individual members of a [**100]  corporation could resign their situations at pleasure, without the consent of the corporation, it would be in the power of any definite integral part of a corporation composed of integral parts, having the right to fill up vacancies in their own bodies, at any time to dissolve the corporation against its will, and even of a mere majority of any such integral part; and thus a corporation so constituted, would be always at the mercy of a minority of its members; and hence the propriety of, and necessity for the rule, that there can be no resignation by a member without the acceptance of it by the corporation; the appointments given by the trustees to members of the corporation of Regents, did not make them 

 [*423]  the less, members of that corporation. "Where a new charter which is void, assumes to incorporate a place where there is an existing corporation, and includes the members of the ancient corporation together with new men, if a sufficient number of the ancient corporators, professing to act under the new charter, without any of the new men joining, make a by-law, which they are capable of making under the ancient constitution, their act is referred to their genuine authority,  [**101]  and not to the new charter, and the by-law will be good." Willcock on Municipal Corporations, 14 Law Lib. 57, 103. 1 Salk. 191. Which shows that the taking a situation under a void charter or act of incorporation, is not a resignation of a situation in another existing corporation, and has not that effect, which is just this case. The acceptance of situations under the trustees, might have furnished ground to the corporation of Regents for removing them, if the power to do so had remained; but that would have been to work a dissolution or suspension of the corporation, if the faculties alone are empowered to fill up the vacancies in their own bodies as has been supposed.
And thus the corporation of Regents was constrained by the act of 1825, and the trustees acting under it to that very inactivity, which is now charged upon it as a fault or as evidence of its assent to that act. Besides, the nineteenth section of the act of 1812, provides, that the charter shall not be avoided or forfeited by any thing done or transacted by the corporation, contrary to the tenor of that act, through oversight, misapprehension, or mistake, either by any court of law, or by the general assembly.  [**102]  The spirit of which solicitude to preserve the corporation, would seem to be, that it should be equally protected against any omission arising from the same cause. And if the corporation could, through oversight or misapprehension, do no corporate act to avoid or forfeit the charter, how could the mistaken course of the individual members of an integral part work that mischief? Or could it have been intended that it should be in their power to dissolve the corporation? Their acceptance, however, 

 [*424]  of places under the trustees not amounting to resignations of their situations in the corporation of Regents, and not having the effect to dissolve or suspend the corporation; if there remained to each faculty when they returned to their duty, which was before the bringing of the suit, of those who were members when the trustees took upon themselves the government of the University, a majority of the number of which each should properly be composed, whether residing in Baltimore or not, there was no objection to the competency of the corporation to institute the action. What number did in fact remain does not distinctly appear from the record. But the plaintiff having proved the [**103]  fact of incorporation, the burden of showing a dissolution of the corporation rested upon the defendant.
These remarks have been made upon the hypothesis, that the corporation is composed of distinct, definite, integral parts. But is that so? The faculties of theology and law, are definite classes, consisting of seven members each. But the faculties of physic and of the arts and sciences, are indefinite parts,--clearly the faculty of the arts and sciences.
In relation to that faculty, the language of the tenth section of the act is, that "the professors of the arts and sciences, (in the plural,) and three others, shall form and constitute the faculty of the arts and sciences." Now, "the professors" may be two, or any larger indefinite number. They cannot, however, be fewer than two, and as there must be three more, that faculty when full, would consist of five at least, of which, three is a majority,--the number that is at least necessary to preserve the faculty. With respect to the faculty of physic, the language used is "that the professors now appointed and authorized in the College of Medicine of Maryland, shall constitute the faculty of physic," without specifying any particular [**104]  number. But they who were at that time, professors in the College of Medicine, were merely designated as the persons, who should in the first instance compose that faculty, to the exclusion of the president and lecturers. That body, as originally formed, consisted of six members, appointed in 

 [*425]  the law itself, for the purpose of organizing and carrying the corporation into operation. But the Regents of that institution were authorized, from time to time, to appoint professors of the different branches of medicine, without limitation as to number; and seeing how many branches there are, it would seem, that the policy of that act was intended to be adopted; leaving the faculty to be composed thereafter, of as many members as from time to time should be thought proper and advisable, according to the condition of the institution; as it was left to the Regents of the College of Medicine, to appoint as many professors, as from time to time might be thought necessary and proper; and seeing too, that seven is designated as the definite number of members, to compose each of the two faculties of divinity and law. But not so with respect to the faculties of the arts and sciences, and [**105]  of physic, which might require a larger number; which circumstance would seem further to indicate, that the two faculties of physic and of the arts and sciences, were not intended to be definite classes. Nor is it clear that it is strictly a corporation of integral parts. "The members of the four faculties," in the language of the act, being as a whole, the persons incorporated, and by the eleventh section a majority of the whole number of Regents being declared to be a quorum competent to make fundamental regulations for the government and discipline of the University, and to do other corporate business, although every member of any one faculty, and a large portion of another, should be absent from such meeting; whereas, ordinarily, the attendance of a majority of the members of each class, when the corporation is composed of definite integral parts, is necessary to constitute a corporate meeting or assembly. But when this suit was brought, there was in fact a sufficient number of members in each faculty, and whether regularly appointed or not, was not a matter to be inquired of at the trial. No advantage can be taken of any non-user or mis-user on the part of a corporation, by any [**106]  defendant in any collateral action.
There are two modes of proceeding judicially to ascertain 

 [*426]  and enforce the forfeiture of a charter. The one is by scire facias, which is the proper process when there is a legally existing body capable of acting, but who have abused their power. The other by information in nature of a quo warranto; which properly applies, where there is a corporate body, de facto only, but who take upon themselves to act, though from some defect in their constitution or organization, they cannot legally exercise their powers. But are entitled to be heard in either case, before they are condemned on proceedings instituted for that purpose, which must be at the instance of the government, and in no other way. For, besides the right of the corporation to a full hearing and judicial judgment of ferfeiture, before it can be stripped of its franchises and property, or be considered as dissolved, the government, with which the contract is made, may not wish to enforce a forfeiture, and may if it chooses to do so, waive the breach of any condition of the contract arising out of the charter.
This principle runs through all the books, and has been [**107]  judicially enforced in a case in the Supreme Court of New York, strictly analogous to this. The Trustees of Vernon Society vs. Hills, 6 Cow. 23--where it was determined, that though the trustees were at the time of bringing the suit a corporation de facto only, not having been appointed in the manner directed by the charter, it could not be taken advantage of by the defendant without showing that proceedings had been instituted by the government, and carried on to a judgment of ouster. Upon the whole, there is nothing to sustain the objection, that the plaintiffs were not competent to sue at the time of bringing the action, on the ground that the corporation was dissolved by the loss of an integral part.
It may not be amiss here to observe, that whatever may have been the understanding, it is by no means clear, that the power to fill up vacancies in the different faculties by the appointment of new members of faculty, does not as a necessary incident, belong to the Regents in their corporate character, and not to the faculties. The power given to the faculties by the eighth section, being to appoint respectively their own 

 [*427]  "professors and lecturers, [**108]  " who may or may not be selected from their own bodies. And when taken from among themselves, clothed in the two-fold character of members of the faculty so selecting them, and also of professors and lecturers. May not a faculty consisting of a definite number, be full, and yet have professors and lecturers appointed by itself, not belonging to it as members of the faculty, but rather as officers or agents? and if so, may not the power "to appoint its own professors and lecturers," look alone to the appointment of persons in that character only, and not as members of the faculty, leaving the power to fill up vacancies in the respective faculties to the corporation of Regents, by the appointment of new members?
The second and third exceptions, and the second and third prayers, in the fourth exception, being abandoned, it is unnecessary to examine them.
And the only remaining question is, whether this suit can be sustained against the defendant for money received by him as the treasurer of the trustees; which arises on the first prayer in the fourth exception. And the opinion of this court is, that the plaintiffs are entitled to recover from the defendant any money amounting to a sum [**109]  within the jurisdiction of the court below, remaining in his hands at the time the suit was brought; and which was received by him as the treasurer of the persons claiming under the act of 1825, to be the trustees of the University of Maryland, at any time within three years before the suit was instituted, to which they can show themselves entitled as the Regents of the University, or which properly belongs to that institution.--But no sum not received within that time, the act of limitations being pleaded and relied upon by the defendant.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

26 of 47 DOCUMENTS 

NEGRO ANNA MARIA WRIGHT vs. LLOYD N. ROGERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 181; 1837 Md. LEXIS 27 

December, 1837, Decided 

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

This was a petition for freedom, filed by the appellant, against the appellee, on the 14th of April, 1835, claiming her right to freedom, under a deed of manumission from Anna Maria Tilghman, dated the 8th of May, 1832.

After an appearance by the defendant, the case was submitted to the county court upon the following statement of facts.

"It is admitted in this case, that the petitioner was the slave for life of Anna Maria Tilghman, of Talbot county. That Mrs. Tilghman did execute, acknowledge and deliver to the petitioner, a deed of manumission bearing date the 18th May, 1832, that said Anna Maria Tilghman, did afterwards sell the said petitioner absolutely to a certain Tench Tilghman, which bill of sale was duly recorded in Talbot county court; that at the time of said sale, the said petitioner was not in the possession of Anna Maria Tilghman, and that the said Tench Tilghman, had knowledge of the said deed of manumission at the time of said sale. That afterwards, to wit: on the 2d of May, 1833, the said Tench Tilghman, did transfer by bill of sale of that date with a general warranty of title, the said petitioner as a slave for [**2]  life, to the defendant in the above case, for the consideration of $ 100; which bill of sale was duly recorded in the records of Baltimore county. That the aforesaid deed of manumission was not recorded in due time; that an act of assembly was passed at December session, 1834, ch. 95, to authorize the recording of certain deeds of manumission, including the deed to the appellant, by virtue of which act, the said deed of manumission from Anna Maria Tilghman to the said petitioner, was admitted to record by the clerk of Talbot county court, on the 21st March, 1835." The provision of the act being, "that when the deeds should be recorded, they should be as valid and effectual for every purpose as if the same had been duly recorded within the time required by law."

Upon this statement of facts, the county court gave judgment for the defendant, and the petitioner appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

T, the owner of the petitioner, a female slave for life, on the 18th of May, 1832, executed and delivered to her a deed of manumission, which was duly acknowledged, but not recorded. T, subsequently, not being then in possession of the slave, sold and conveyed her by bill of sale, duly acknowledged and recorded to a purchaser, having knowledge at the time of the deed of manumission. This purchaser afterwards sold her to R, to whom on the 2d of May, 1833, he executed and delivered a bill of sale, which was acknowledged and recorded according to law.

The legislature, at December session, 1834, ch. 95, passed a law, authorizing the recording of the deed of manumission; and providing that the same when recorded, should be as valid and effectual for every purpose, as if it has been duly recorded within the time required by law. After the deed had been recorded under this law, the appellant, the negro therein mentioned, filed her petition for freedom, but the judgment of the county court in opposition to her title, was affirmed on appeal to this court.  

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

OPINION:

 [*182]  C. F. MAYER, for the appellant, contended:
That the act of assembly admitting the deed of manumission to record is constitutionally valid, and has the effect of perfecting the evidence [**3]  of the appellant's title to freedom against the claim of the appellee, whose remedy is on the general warranty which he has taken in his bill of sale.
There can be no doubt that the act would prevail against Mrs. Tilghman and the first purchaser, Tench Tilghman.
A grantee who purchases with knowledge is bound as his grantor would have been. Hudson vs. Warner and Vance, 2 H. & G. 415. Latouche vs. Dunsany, 1 Schol. & Lef. 157. This applies to Mrs. Tilghman and her son. Is the case different in relation to Mr. Rogers. It may be argued without reference to the constitutional question. Although the fact is not stated that the appellant was at large at the time of the sale to Tench Tilghman, yet as the 

 [*183]  contrary is not stated, the court well presumed that she was. The manumission was immediately delivered to the woman, and she went at large. She was ostensibly free when Tench Tilghman purchased her, and it does not appear that possession was ever resumed. As to statements of fact these are not enlarged by inferences. But I apply that rule here to the appellee; and as it does not appear that the appellant was not at large [**4]  when purchased, her being at liberty still continued, and it is not to be inferred that control over her had then been resumed. Connected with the facts, that only one hundred dollars had been paid for her, there is good reason to suppose she had a fair moral claim to freedom. This was a question only for the jury--though not urged as far as the court can notice. If true then as a conclusion of law, that the petitioner was at large, the act operated to secure her liberty. It took away from Rogers the character of a purchaser without notice.
When we look at the act of 1796, ch. 67, sec. 29, which authorizes the manumission of slaves, we find merely mandatory words, no provisions intended to aid a purchaser and protect him against an unrecorded deed of manumission--no clue that registration was intended for his protection, nor language that annuls the deed for want of it. It is only by argument that the act of recording in season becomes the consummation of the deed of liberation. If it be fair to refer the passage of the act of 1796 to some peculiar policy affecting our black population, it is begging the question to say that the legislature intended to vacate the unrecorded [**5]  deed for its tendency to beguile purchasers. If it was the policy of the act to guard the proprietor's right, then in its construction you must take with you a residuary right in the legislature to exercise the curing power in cases of failure to record in their discretion. The judicial interpretation ought to follow this motive. The policy of the law is notified to the purchaser, and he takes under the contingency of ulterior legislation. 4 Cruise 545. The master has no right to withhold the solemnity of recording after a manumission 

 [*184]  tendered. Then the State is the only party interested. McCutchen, et al, vs. Marshall, 8 Peter 220. Ketletas vs. Fleet, 7 Johns. 324. Petry vs. Christy, 19 Johns. 53. Negro Tom, 5 Johns. 365. Wheeler on Slavery, 287, cites a case in point as against a purchaser.
The vendor can convey no greater right than he possesses.
The mere circumstance of a vendor remaining in possession does not add to his rights, nor perfect his title. Ross on Sales, 1. Hinde vs. Whitehouse, 7 East 571. Mucklow vs. Mangles, 1 Taunt. (Eng.) 318. Langfort  [**6]   vs. admr'x of Tyler, 1 Salk. 113. The latent legal right is enforced. Karthaus vs. Owings, 4 H. & J. 263. Possession is not conclusive on a question of manumission. Patty and others vs. Colin and others, 1 Hen. and Munf. 519. Allein vs. Sharp, 7 G. & J. 96.
G. L. DULANY, for the appellee.
By the statement of facts in this case, it appears that Mrs. Anna M. Tilghman executed a deed of manumission to her female slave, Maria Wright, on the 18th of May, 1832; this deed was not recorded within six months after its date as required by the act of 1796, ch. 67, sec. 29. Mrs. Tilghman afterwards sold Maria to Tench Tilghman, who, by bill of sale dated the 2d of May, 1833, transferred her as a slave for life to Lloyd N. Rogers, the defendant below, who for aught that appears, was wholly ignorant of the deed of manumission aforesaid.
By an act of the legislature, passed 23d of February, 1835, December session, 1834, ch. 95, sec. 1, the clerk of Talbot county was authorized to admit to record, "three several deeds of manumission from Ann Maria Tilghman, of which the above deed was one, and that when [**7]  recorded, they should be as valid and effectual for every purpose as if the same had been duly recorded within the time prescribed by law."
Under this act the deed to the appellant was recorded by the clerk of Talbot county 21st March, 1835.

 [*185]  As the law before stood, it is as clear as any proposition can be made by the decision of the highest tribunal, that by the deed of manumission from Mrs. Tilghman, the appellant acquired no right to freedom, either of a qualified or absolute character which could be enforced in law or equity. Such an instrument conveyed no right until recorded, and if the time elapsed within which it should be placed on record, a court of chancery had no power to afford redress. The deed itself gave not even an inchoate right to freedom, liable to be divested, by neglecting to have it recorded within the time prescribed by law; but the act of placing the deed upon record, is itself the only, and effective origin of any right to be claimed under it. The deed not having been recorded, the appellant was at the time she was purchased by the defendant below, as much a slave, with as little right in law or equity to escape from that condition [**8]  as if the deed of manumission from Mrs. Tilghman had never been executed. Wicks vs. Chew, 4 H. & J. 543, is a conclusive case on this point.
The act of 1834, however, provides that the deed to the appellant may be recorded, and that when so done, it shall be as valid and effectual as if it had been enrolled within the period prescribed by law. Now, as the appellant would have been free if she had placed on record the deed which was executed in her behalf within the prescribed period, and as the act gives to the deeds recorded under it the same effect, as if they had been regularly placed on record, it follows, that the appellant, who before the passage of the act was a slave of the defendant below, by a perfect title, has by virtue of a compliance with the terms of that act, if valid, obtained her freedom, and that too, without the consent of her master or any compensation for his loss.
If then she is free, that boon has been conferred upon her by a high legislative act, when independent of that act, and notwithstanding the deed of manumission, her master and those under whom he claims, had done nothing which operated either in law or equity to bestow freedom [**9]  upon her, or 

 [*186]  in the least to impair their title to her services. The deed of manumission was wholly ineffectual, and without obligation of any kind. It gave her absolutely nothing. She was by the authority of the decision of the court of Appeals before referred to, as much the slave of her mistress, and by as perfect a title in law or equity after the deed had been executed, but not recorded, as before. The court will perceive then, that the immediate object and necessary effect of the law of 1834, is to take from the master his slave, to whose person and services at the time of its passage, he possessed a clear title, and that too, not indirectly by enacting some provision, creating a new rule of evidence, or regulating the remedy which might have affected his case, but by striking at and directly destroying his vested and absolute right to her person and services. For the direction in the act "that the deed may be recorded" is nugatory when standing alone; it is the additional declaration that when recorded, it shall have the same effect as if it had been recorded in time, which gives to the law its obnoxious character, of arbitrarily disturbing the private rights [**10]  of property. For although it has been contended otherwise, yet I think it cannot be well questioned in this, and all other states where slavery exists, that a human being may be as much the subject of property as any chattel that a man may possess. And that viewed in this respect, any law which affects the rights of the master must have the same consideration, as if passed in relation to his land or personal estate.
Now if it be true that at the time the act in question was passed, that Maria Wright was the slave of Rogers, by virtue of his title acquired under Mrs. Tilghman, if the previous deed of manumission gave her no title to freedom in any court, and if the opposing right of her master could without question have been enforced in all, does it not follow, that the act of 1834, which professes to give validity to a void deed upon its being recorded, proves as clearly destructive to a vested right, as if it had said without reference to the deed, Maria Wright shall be free.

 [*187]  That it transcends the power of the legislature to disturb vested rights, although in so doing they might not violate the constitution of the United States, is a proposition [**11]  as it seems to me placed beyond doubt, both upon reason and authority. Such a power is utterly inconsistent with the legitimate objects of government, one of which, and perhaps the most essential, is not to take away the property of its citizens, but to secure them in the peaceable enjoyment of it. It is often in argument assumed as an axiom, that the legislature cannot take the property of A, and bestow it upon B. It has been decided that such a proceeding would be void, even where the property taken was appropriated to public uses without compensation, as against the fundamental principles of all free government, even where there was no positive prohibition in the constitution of the state or of the United States, which forbade it. See Bradshaw vs. Rogers and Mayer, 20 Johns. 105, 106. Catolen and wife vs. Bull and wife, 3 Dall. 387, 388. See also the protest of D. Dulany, 3 Har. and John. 309. 3d Story's Constitutional Law, 667.
The only question then that can be mooted in this case is whether the act of 1834 does destroy the vested right which Rogers had to the person and services of Maria Wright, under the laws as they existed before [**12]  the passage of the act.
I assume that Rogers' right was a vested one, and this assumption cannot I think, be denied to me; for if a right which could be immediately and effectually enforced, (if invaded,) both in law and equity, be not a vested one, by what incidents and characteristics shall it be known and described?
If then Rogers had a complete vested right in the person and services of the petitioner, and the act in question while this right subsisted, declared in substance, no matter by what mode of expression, that it should cease, and that the appellant should be emancipated from the control of her master, does it not manifestly and wholly deprive him of his right, and upon the prohibition of the 21st article of the declaration 

 [*188]  of rights, that no man ought to be deprived of his property but by the judgment of his peers, or the law of the land, as well as upon those principles already stated, ought not such an act to be pronounced absolutely void.
It is not necessary to shew that the act in question is contrary to the constitution of the United States. It is sufficient that it violates our own constitution, and those fundamental principles of free [**13]  government which are entitled to equal, if not superior consideration.
It is admitted that every law which disturbs or destroys vested rights does not necessarily impair the obligation of contracts, and is not therefore contrary to the constitution of the United States; but it is equally certain, that laws which affect vested rights, may, and frequently do impair the obligations of contracts, in which case it is clear they are annulled by the constitution of the United States.
Is not the act of 1834 of this character? Does it not obviously invalidate the bill of sale from Tilghman without giving Rogers any remedy on the implied warranty of title which accompanies the sale of all personal chattels; in as much as when the bill of sale was given, the title was valid, and is destroyed only by a subsequent act of legislation; hence, there is no breach of the warranty, and Rogers would loose his property without redress? What then becomes of the obligation of his bill of sale, is it not utterly destroyed? and if so, how can the law of 1834 subsist with the constitution of the United States.
The bill of sale according to the law, as it existed at the time [**14]  when it was executed, gave to the defendant below, an absolute property in the appellant; if she is taken from him by the interference of the legislature, and the responsibility of Tilghman is by the same interference superseded, such act of deprivation at once destroys his vested right, and the obligation of the contract under which he held her, and is equally inconsistent with the constitution of the United States, the declaration of rights, and those fundamental principles which lie at the foundation of all our governments, and impose 

 [*189]  wholesome restraints upon the capricious exercise of mere unconfined and arbitrary authority.
There must be some things in every free government, which not even the whole people through their representatives can do; and if they should be restrained in any thing, surely it is in taking the property of the citizen, without his consent, without compensation to him, or the urgency of any public demand, for the security of property is perhaps of all the objects of governments, the most essential. Suppose an act of the legislature should pass, taking away $ 10,000 of the surplus wealth of A, who is worth a million, and distributing it [**15]  in charity among the poor, is it possible that such a law would be enforced in a court of justice, and yet if the legislature can take away my slave and confer upon her the privilege of freedom, they do nothing more than proceed upon a principle, which if just, would authorize them to scatter the superabundance of the rich to relieve the pressing wants of the poor.
There is no safety for any man but in the controlling power of the courts, acting, not upon temporary excitements, but on fixed principles, to annul every law under whatsoever fair pretext or humane motive it may have been enacted, which takes from a citizen any thing which according to the existing laws may be the subject of property, no matter whether the law is to restore to a human being his natural right of freedom, or to the poor, their natural rights to have their urgent necessities supplied, from the superabundance of others.
One of the great errors of the argument of the counsel on the other side is the assumption that the deed of manumission was a contract with Maria Wright, that the neglect to record it on her part, was a mere omission of a formal requisite, and that the act of 1834 comes in aid of this [**16]  technical defect, and thus substantially assists the obligation of the contract, and the intention of the parties.
The following quotation from the case of Hicks and Chew will shew how much the law has been mistaken on this 

 [*190]  point: "By the laws of this state, a negro, so long as he is a slave, can have no rights adverse to those of his master; he can neither sue or be sued. Nor can he make any contract, or acquire any rights under a deed which either a court of law or of equity can enforce. And as it is the recording of a deed of manumission within the time prescribed by law, which entitles him to freedom, he continues a slave, and can acquire no rights under such an instrument, until it is so recorded, and consequently cannot go either into a court of law or equity for relief of any kind."
There was then no obligation whatever flowing from the deed of manumission by which Mrs. Tilghman was bound to her slave. It contained no contract; the relationship of mistress and slave existed between them, as fully, perfectly, and absolutely, after the deed as before, and if so, the deed could have no more efficacy in laying a just foundation for the law of 1834, than is [**17]  presented by every instance of slavery in the state. In other words, it would be as competent to the legislature to emancipate a slave where his master had given no deed of manumission, as in the instance where one had been executed and delivered, but not recorded; for the court of Appeals have decided that such a deed gave no right whatever, and possessed no obligation, and where can be the difference of the non-existence of a deed as a matter of fact and the existence of a deed which yet is absolutely void both in law and equity? What then can be the rational distinction between a law which enacts that a slave shall be free when no deed had been given, and enacting that a purely void instrument shall be recorded, and constituting that act an effectual and valid title to freedom against the otherwise rightful claim of the master.
Would not each of these instances of legislation equally and as flagrantly violate the vested rights of property. In both the slave would be taken away without compensation, not for public purposes and without the consent of the owner, for it cannot be said that the deed itself was such an assent as removed from the law the fatal objection that it [**18]  was passed without his acquiescence.

 [*191]  Some time after the deed had been given, and the time within which it should have been recorded had elapsed, Maria Wright was sold to T. Tilghman as a slave for life, and by him conveyed to the defendant in this cause, and whilst in his possession, and sometime after he had acquired the rights of a master, the law in question was passed, it surely cannot be said that the deed by any possible mode of considering it implied the assent of Rogers, or even of Mrs. Tilghman, to the passage of the act--and if not, what influence can the deed exert when taken in connection with the law to eradicate its essential characteristics of an unconstitutional and arbitrary exercise of authority. By the decision already referred to it was determined that the deed was no contract, imported no obligation, legal or equitable, conferred upon the petitioner no rights of which any court could take cognizance, how then is it possible that an act thus indifferent could have the curative effect of rendering a law otherwise obnoxious to strong constitutional objections, legal and proper. It cannot be even truly argued that Mrs. Tilghman imposed [**19]  upon herself a moral obligation to liberate her slave by any other and future act. The deed was a simple gift, without consideration, operating only if it should be recorded, and the giver did nothing to deprive the object of her bounty of the benefit intended her, or to defeat the potential operation of her own instrument, that the petitioner was not completely manumitted, was the effect of her own negligence in omitting to comply with those legal requisites with which it was not in the power of Mrs. Tilghman to dispense, and there is nothing in the deed which expresses or implies a promise or undertaking that any future instrument would be executed, should the one she was about delivering become inoperative through the carelessness of the person most interested in it.
Should we disapprove of the conduct of Mrs. Tilghman in the subsequent sale of the appellant it would be yet difficult to point out what precise moral obligation was violated by that act, and if the deed carried with it neither a legal, equitable, 

 [*192]  or moral obligation, the mere fact of its existence as a nugatory paper, could impart no quality whatever to the law of 1834, but that act is left with [**20]  the same despotic character which it would have possessed, had the deed never been executed, and must be declared absolutely void if the principle be sound that the legislature has no power to destroy the vested rights of private property. We contend then--
1. That the legislature has no power or authority under the bill of rights, or upon the fundamental principles of any just and free government, to take away the property of a citizen by law, to which, under the previous legal establishment he had a perfect title without his consent, except for public uses, and then only upon adequate compensation.
2. That the deed of manumission was so far from being a contract, having been delivered to a slave, that it was not even a gift binding upon the giver, who might the moment after have taken it back; that not, however, having been thus resumed, a mere power was granted to the petitioner to acquire the rights of freedom by placing the deed on record, that omitting to do this act within the prescribed period through her own default, this power became forever lost, and by the then existing laws, she continued as much a slave with as little title in law or equity to be freed, as if the deed [**21]  had never been executed.
And, 3d, That the act of 1834, is therefore void, as its immediate object and necessary effect is to deprive the defendant of the absolute property which he held in the person and services of his slave, under the law as it existed at the time the act was passed.
It is not necessary I think to refer to the instances which have been cited by the learned counsel in his argument of retrospective laws, statutes of limitation, insolvent laws and laws abolishing imprisonment for debt, &c. as cases in point on his side of the question in this cause. For in the first place, I do not contend that the act of 1834 is void because it is merely retrospective, but because it destroys vested 

 [*193]  rights; and in the other instances of legislation which he has enumerated, when they have been upheld by judicial decisions, they have been supported on the ground that they were not aimed at the destruction of vested rights, but were enacted to regulate the remedy of the party in the pursuit of those rights, leaving of course the rights themselves untouched.
JUDGMENT AFFIRMED.  

27 of 47 DOCUMENTS 

W. A. MOALE vs. J. S. HOLLINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 11; 1839 Md. LEXIS 23 

December, 1839, Decided 

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

This was an action of Assumpsit, commenced on the 14th November 1836, by the appellant against the appellee. The plaintiff declared for goods sold, &c., upon the money counts, and upon an insimul computasset. The defendant pleaded non-assumpsit, on which plea issue was joined.

The case was submitted to the county court upon the following statement of facts:

It is admitted in this cause that Robert S. Hollins and John S. Hollins the defendant, were partners in the business of manufacturers of cotton goods, and that they carried on their said business in the name solely of Robert S. Hollins; that while the said John and Robert were partners as aforesaid, but which fact of partnership was unknown to said William A. Moale, and did not become known to him until the 1st of July 1834, the said Robert purchased for the business purposes, and uses in fact, of said partnership, but without disclosing that fact, a quantity of cotton, for the sum of $ 3,161.97, which cotton was delivered to said Robert, and used in the business aforesaid, and that said cotton was sold on a credit of six months; and that said Robert accordingly made and delivered [**2]  to said plaintiff for said purchase, his (said Robert's) three promissory notes--one dated the 11th of May 1833, payable six months after date, for $ 330.21, and two others dated the 12th July, in the year 1833, payable six months after date, each for 1,415.88. It is further admitted that, said notes not being paid, the plaintiff still being ignorant of the fact of a partnership as aforesaid, instituted suit against said Robert S. Hollins upon said notes, in Baltimore county court, on the 2nd April, in the year 1834, and recovered judgment thereon against said Robert, on the 2nd December 1834, subject to the release of said Robert under the insolvent laws of Maryland, for the benefit of which said Robert had, after the institution of suit aforesaid, applied, and that said judgment remains unsatisfied. It is agreed that, if the court shall be of opinion that on the above facts the plaintiff is entitled to recover, judgment shall be rendered in his favor for the damages in the declaration, to be released on payment of, &c.; and if the court shall be of opinion that the plaintiff is not entitled to recover, then judgment shall be rendered for the defendant. It is agreed that either party [**3]  may appeal from the judgment of the court in the premises.

The county court rendered judgment for the defendant, and the plaintiff thereupon prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The substitution of a debtor's obligation of a higher nature, for a debt due by him of inferior degree, extinguishes the original liability; and the same effect takes place, when the substituted higher obligation is executed by one of two partners, or other persons jointly bound.

And a judgment obtained upon the original obligation, against all or either of the debtors, will produce a similar result.

Where the ostensible partner had given notes in the partnership name, for merchandize purchased for the uses of the partnership, upon which the payee in ignorance of the partnership sued and recovered judgment against the former alone, it was held, in an action afterwards brought against the dormant partner, that the liability of the latter upon the notes, was extinguished by the judgment.

Quere--Whether in an action against a firm, where one of the defendants is a dormant partner, and the business has been transacted solely in the name of the ostensible partner, it is incumbent on the plaintiff to prove, that the contract sued on, was entered into on account of the partnership. 

COUNSEL:
By NELSON and MAYER for the appellant, who cited Sheehy vs. Mandeville & Jamison, 6 Cranch, 264. Drake vs. Mitchell, 3 East. 251. Williams vs. Hodgson, 2 Harr. and John. 474. Tom vs. Goodrich, 2 John. Rep. 213. 15 East. 62. Patapsco Insurance Co. vs. Smith, et al., 6 Harr. & John. 166. Rice vs. Shute, 5 Burr. 2611. Robertson vs. Smith, 18 Johns. Rep. 459, 480. 1 Johns. Rep. 291. Act of 1833, ch. 276.

J. S. NICHOLAS for the appellee, cited Collyer on Partnership, 212. Williams vs. Hodgson, 4 Harr. & John. 477. Willings & Francis vs. Consequa, 1 Pet. Ch. Rep. 301. Robertson vs. Smith, 18 John. 459. Penny vs. Martin, 4 John. Ch. Rep. 566. Smith et al. vs. Black, 9 Serg. & Raw. 143. Act of 1836, ch. 219, repealing act of 1833, ch. 276. Hysinger vs. Baltzells, 3 Gill & John. 162. Lewis vs. Hoblitzell's Adm'r, 6 Gill & John. 259.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*13]  DORSEY, J., delivered the opinion of this court.  [**4]  
There does not, in this case, arise any question, whether the contract, for the enforcement of which this action was instituted, was in its inception binding upon both the partners, it being explicitly admitted in the case stated, that the purchase was made for the business purposes "of the partnership, and that the article purchased was so applied." It is unnecessary for us therefore to examine the numerous authorities, which have been cited to show, that in a suit against a firm, where one of the defendants is a dormant partner, and the business has been transacted solely, in the name of the ostensible partner, it is incumbent on the plaintiff to prove, that the contract sought to be enforced, was entered into on account of the partnership. In truth there are but two questions which this court are called on to decide; the one, a matter of fact, to be disposed of by an inspection of the case stated; the other a question of law, as to the extinguishment of the original contract, by the rendition of the judgment against the ostensible partner, should the court find the facts to be as asserted by the appellee. The fact in dispute in this case is, whether the promissory notes given by [**5]  Robert S. Hollins, and on which the judgment was rendered, were given by him as the notes of the firm, under the partnership signature, or were given as his individual notes, by way of collateral security for the payment of a partnership liability. A determination of this controversy, can only be made by an examination of the facts in the case stated. It states, that Robert S. Hollins and John S. Hollins the defendant, were partners in the business of manufacturers of cotton goods, and that they carried on their said business in the name solely of Robert S. Hollins; that while said John and Robert, 

 [*14]  were partners as aforesaid, "the said Robert purchased for the business purposes and uses in fact of said partnership," a quantity of cotton for the sum of three thousand one hundred and sixty-one dollars and ninety-seven cents, which cotton was delivered to said Robert, and used in the business aforesaid, and that said cotton was sold on a credit of six months, and the said Robert accordingly made and delivered to said plaintiff for said purchase, his (said Robert's) three promissory notes amounting to the said sum of $ 3,161.97 payable [**6]  six months after this date. The legal construction of these facts is, that the notes were given in the partnership name for a partnership debt. There is not a fact in the statement which could suggest for a moment, a different interpretation to the acts of the contracting parties. If in a suit on these notes against both partners, the facts in the case stated had been in evidence before the jury, it would have been competent for the court, if applied to for the purpose, to have directed the jury, that if they believed those facts, the plaintiff was entitled to recover. Thus determining, that there was no inference of any other fact left open for the finding of the jury.
Upon this assumption of the facts in the case, does the judgment recovered against the ostensible partner, interpose any obstacle to a recovery against the present defendant, is the question of law we are called on to consider? That the substitution of a debtor's obligation of a higher nature, for a debt due by him of inferior degree, works an extinguishment of his original liability, has not been, and upon authority could not be controverted. And that the same extinguishment takes place when the substituted obligation [**7]  of a higher nature, is executed by one of two partners, or other persons jointly bound, is now well settled. See the cases of Williams vs. Hodgson, 2 H. & J. 474. U. S. vs. Astley & others, 3 Wash. C. C. 508, and Tom vs. Goodrich, 2 Johns. 213. If the reduction of a simple contract debt to a specialty in such cases, works its extinction, it is difficult to conceive a reason why a judgment obtained thereon, (a security of a still higher nature) should not produce the same result. Tis true the doctrine of 

 [*15]  extinguishment or merger, when applied to matters of this sort, is purely technical, and may on some occasions be productive of inconvenience and injustice. But we sit here not to make or amend, but to expound, the law. Such as we find it we must declare it. We regard the case before us, therefore, not only as falling within the principle established in the cases above referred to; but as fully settled by decisions on the very point now at issue. See the cases of Smith & al. vs. Black, 9 Serge. & Rawle 142. Robertson vs. Smith, 18 Johns. 459, and Willings & Francis et al. vs. Consequa, 1 Pet. C.C. 301. [**8]  Concurring with the county court we affirm their judgment.
JUDGMENT AFFIRMED.  

28 of 47 DOCUMENTS 

H. GROVERMAN AND WIFE vs. CATHARINE DIFFENDERFFER, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 15; 1839 Md. LEXIS 24 

December, 1839, Decided 

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

The bill in this cause was filed on the 15th June 1835, upon the equity side of Baltimore county court, and transmitted to the Court of Chancery on the 9th of December following. The complainants therein, the appellants, alleged that, in the year 1805, Charles Rogers died seized of real estate, having devised the same to his children, Ann Martin, Mary Lee, Sarah Bailey, and Catharine Diffenderffer wife of John; that Ann and Mary died without issue, and that by a decree of this court, Araminta Winder, sole heiress of Sarah Bailey, became entitled to a certain portion of the trust fund arising from, and constituted by, the estate of Charles Rogers, and that the children of the said Catharine Diffenderffer, namely, Amelia, (now Groverman) Michael and Charles R. Diffenderffer, to two thirds of the rents and profits of such trust funds from the 30th June 1818, that John Diffenderffer, father of Amelia, claiming the same as the natural guardian of the said Amelia, or as trustee for her, received her share of the rents and profits of the said estate, and at no time accounted to her. The bill then proceeded to charge, that her father had conveyed certain [**2]  real property to her as a payment, at an enormous and defective valuation, and procured a release from her, she being ignorant of the contents of both papers, and solely induced to sign the latter by his misrepresentations. And after setting forth in detail the particulars of his misconduct, it further charges, that the said Amelia being about to be married to the said Groverman, the said John Diffenderffer proposed to the complainants, that a marriage settlement should be made of the said Amelia's property, at the same time presenting to complainants a draft of a conveyance to effect that object, and assuring them, that it would secure the property to the said Amelia so as to preclude the possibility of its being involved by her intended husband's debts, and to leave to her the absolute power of disposing of it in any form by will or otherwise in favor of her husband or of any one else; that being themselves ignorant of the true import of legal phraseology, and incompetent properly to construe instruments, such as that now mentioned, confiding in the accuracy of the said Diffenderffer's representations, caused no examination to be made into the terms and legal import of the said conveyance [**3]  in trust, acceded to the request of the said John S. Diffenderffer, and upon the faith of his representations signed said settlement. The bill then charged the marriage settlement to be fraudulent and void, and contrary to the intentions of both husband and wife; that soon after its execution the parties intermarried; the bill charged also the death of John Diffenderffer, and prayed supboena against his heirs; that the deed from John Diffenderffer to his daughter might be vacated; that the marriage settlement might be so modified as to carry into execution the understanding of the grantors previous to its execution; that the release from Amelia to said John might be given up to be cancelled; that an account might be taken, a receiver appointed, and for general relief.

With this bill was exhibited the deed of 31st December 1834, from John Diffenderffer to Amelia H. Diffenderffer, purporting to be in consideration of $ 8000 paid by Amelia to the said John, and conveying to her in fee, certain real property in Baltimore. The release of Amelia to John, dated 2nd January 1835, acknowledging to have received from the said John $ 12,000, "which I have agreed to accept, and do hereby [**4]  accept, in full payment and satisfaction of the balance of the amount due in virtue of a decree, &c., and release of all claims under such decree. The last will and testament of John Diffenderffer, by which, after a devise of $ 500 to the complainant, he bequeathed his estate chiefly to Catharine R. Diffenderffer, his second wife, and her children.

The infant defendants answered by guardian, and an ex parte commission was ordered against Catharine R. Diffenderffer and the other adult defendants.

Under the commission a great variety of proof was taken. The marriage contract impeached by the bill, was dated the 11th February 1835, and conveyed the property of the said Amelia to John Diffenderffer, Jacob Boyer and Charles R. Diffenderffer in trust, to the use of Amelia H. Diffenderffer and her heirs, until her marriage, and after, then in trust, for the sole and separate use of the said Amelia for life, with power to collect rents, demise and lease, and to devise the same, in case she should leave more than one child, among all her children, or to any one of them, or to any other person or persons, that she might deem advisable--after her death in default of a will, then in [**5]  trust for the use of any child or children she may have; and if she should die without leaving any child or descendant, then the whole of the said lands to be held in trust for the use of the said John and his heirs if he shall be then living; if not, then the settlement provided for the descent of the said property to other relations, some of the whole blood, and some of the half blood of the said Amelia. This deed was executed by the said H. Groverman and wife.

At December 1837 the Chancellor (BLAND) decreed that the release from the complainant Amelia to her father, be declared void and of none effect; that the deed of 11th February 1835, purporting to be a settlement of the property of the said plaintiff Amelia, in contemplation of her marriage, then shortly to be had and solemnized with the plaintiff, Henry Groverman, be and the same is hereby declared null and void, in so far as the same may be at variance with a settlement of all her property, by a deed to be executed by the said Henry Groverman and Amelia H. his wife, unto the said Jacob Boyer and Charles R. Diffenderffer, to be held in trust, to apply the rents and profits and dividends thereof, to the separate use of [**6]  the said Amelia during her life, without power in her to make any incumbrance or anticipation thereof, remainder to such of her children or their descendants, in such proportions and manner as she shall, by an instrument of writing executed and signed, &c., declare and appoint; and on her failing to make any such appointment, then to her heirs and next of kin on the part of her mother, according to the acts of assembly in such case made and provided, in relation to the descent and succession of real and personal estate, in like manner as if she had died unmarried and intestate. The decree then proceeded to appoint a receiver of the rents, &c., refer the cause to the auditor, and declaring the principles on which the said deceased John Diffenderffer's representatives should now account with the complainants, with the usual authority to take proof.

From this decree the complainants appealed.  

DISPOSITION:
DECREE REVERSED IN PART AND CAUSE REMANDED.  

HEADNOTES:

Where the husband seeks by a bill in Chancery to recover a sum or sums of money due to his wife, the equity of the wife to a settlement is unquestionable, and in such cases, it is the invariable practice to include a provision for the issue of the marriage.

Upon a bill filed by husband and wife, to recover the wife's estate, the court would not be justified, in making the terms of the settlement conform to the allegations of the bill, in the absence of proof.

The averments of the bill, after marriage, in relation to the character of the settlement to be made upon the wife, should not be taken as evidence, and form the foundation of a decree.

Such a practice would strip her of the customary guards, which a Court of Chancery, for the wisest purposes, has thrown around her interests.

In decreeing a settlement, the court should be guided by the ante-nuptial agreement, if there be one. If no such agreement is proved, the settlement should conform to the equity of the wife, unless she waive the same, in the accustomed mode.  

COUNSEL:
By MAYER and WARD on a written argument for the appellants.

The appellants were plaintiffs below, claiming among other things, that an ante-nuptial settlement executed by them should be vacated. This settlement was a deed of trust from [**7]  the plaintiffs to Jacob Boyer and John Diffenderffer and Charles Rogers Diffenderffer, conveying to them all Mrs. Groverman's (then Miss Diffenderffer's) real estate, to be enjoyed by her for life, and devisable by her; and, in case of no devise, then, 1st, to her children--2nd, if no children, to John Diffenderffer aforesaid, her father, and his heirs, if he should survive her; and if he should not, then--3rd, to Charles Rogers Diffenderffer and his issue, and in case of his leaving no children, then 4th, to Rosalba Diffenderffer (half sister of Mrs. Groverman,) and her heirs. The devising power of Mrs. Groverman under the deed may be construed to be limited to the event of her having more than one child at her death. The bill seeks to set aside this deed on the ground of imposition by John Diffenderffer, the father of Mrs. Groverman, and who was a trustee and cestui que trust in the settlement.

The chancellor has decreed that the deed be set aside; but proceeds then to prescribe a new settlement of the estate of Mrs. Groverman, which is, that "all the property" of Mrs. Groverman be conveyed to secure to her use for life the rents, profits and dividends, with power to her to [**8]  dispose of it by will among such children as she may have, and, in default of disposition in that way among her children, then to her heirs or next of kin on part of her mother, according to the acts of assembly relating to descent and succession of real and personal estate.

There is no testimony, nor any admission, of any agreement between the plaintiffs, or between them and Diffenderffer, or any one else, for an ante-nuptial settlement. Nothing bearing upon an assent or a wish, as to such an arrangement, exists in the case, except what may be deduced from the allegation in the bill, which is, "Your oratrix and orator aver that they were then informed" [when the deed was presented for their execution] "by said Diffenderffer" [the father] "that the object and effect of said conveyance in trust were to secure to your oratrix the use of her estate, so as to preclude the possibility of its being involved for her intended husband's liabilities, and to leave to her the absolute power of disposing of it in any form, by will or otherwise, in favor of your orator when her husband, or of any one else."

The settlement in fact, which, according to this averment of the bill, was [**9]  meant, was the ordinary settlement in this State, which assures the estate to the separate use of the wife during her life, without liability for the rent or future husband's debts or engagements, with power to her to dispose of it by deed or will, or writing in nature of a will, and, in default of appointment, to her children and their heirs, or the persons and their heirs who by the laws of Maryland may at her death be her heirs and next of kin.

Although the Court of Chancery here has vacated the deed, it makes a settlement very little better than the fraudulent one set aside, except so far as it excludes the father and his heirs, and Mrs. Groverman's brother and half sister. There appears no reason why the ordinary settlement should not be here adopted and Mrs. Groverman preserve her right over her own property, guarding it only against her husband's debts, and making her dispositions of her property dependent on her exclusive pleasure, excepting only that she be prevented from making any mortgage or pledge of any part of her estate, or its rents or income, for the liabilities of any husband; a provision which perhaps ought to be introduced into all settlements, beside the [**10]  usual general provision, that the estate is not to be liable for the husband's liabilities.

Mrs. Groverman has not forfeited her rights of property in her estate; but the settlement prescribed debars her of all the usual rights of disposing of it, and through her trustees of making any change of investment, no matter how advantageous or even vitally important a disposition of it might at any time prove. Why not adopt the terms of the understanding for a settlement as alleged in the bill, and to which the fraudulent settlement is prayed to be modified, and which terms conform to the usual limitations guarding the estate against the husband's involvements, but continuing to the wife her rightful claim and her control over it? If any misconduct of the husband were shown, there might be reasons for peculiar strictness as against him, but even then the wife's disposing powers ought not to be interfered with. But here there is no impeachment of him; and both husband and wife are before the court in the most favorable light.

Beside the terms of the decree would seem to require a settlement by the husband and wife of "all the property" of the wife, embracing thus the personal as [**11]  well as real estate, while only the latter is comprehended in the deed of settlement complained of. In this respect, too, the decree should be reformed, and the settlement to be made, limited to the real estate. It is also suggested that the parties should have liberty to name trustees to the chancellor, and they should not as a matter of course have Charles Rogers Diffenderffer and Jacob Boyer, the trustees of the repudiated deed, set over the estate.

We beg leave to submit to the court, that the power of the court to prescribe a settlement attaches here only, from the admitted understanding set forth in the bill; and which must, then, be in all respects conformed to; and does not derive itself from the general principle that where a husband seeks to recover his wife's fortune, and must, from the nature of the estate or claim, apply to equity, a settlement will be enforced. This is a complaint by husband and wife, and an attempt only to disenthral an estate already in her.  

JUDGES:
The cause was submitted to BUCHANAN, C. J., STEPHEN, ARCHER, DORSEY, CHAMBERS, and SPENCE, J.  

OPINIONBY:
ARCHER 

OPINION:

 [*21]  ARCHER, J., delivered the opinion of the court.
The decree of the chancellor, so [**12]  far as it has placed in trust all the property of Mrs. Groverman, and as to the limitations 

 [*22]  of trust by it prescribed, is objected to by this appeal, and it is insisted that, as the ante-nuptial settlement has been set aside as fraudulent, and there is no proof in the record of the terms originally agreed on, as the terms of settlement, the chancellor had no other guide, than the terms set out in the complainant's bill, and that his decree should have carried them out, at least substantially.
The bill filed in this cause seeks to set aside an ante-nuptial settlement as fraudulent, and also a release executed by Mrs. Groverman to John Diffenderffer her father, anterior to the marriage, and it further seeks to recover from the estate of her father, all sums of money due to her from her father, as guardian or trustee, in pursuance of a decree of the Court of Appeals at December term 1831. So that the equity of the wife to some settlement is unquestionable: the husband seeking not only to remove out of the way fraudulent deeds, but to recover the wife's portion from the estate of her father.
What shall be the nature, extent, and character of this settlement [**13]  which is to be made, must depend upon the proof hereafter exhibited in the cause, and the extent of the recovery to be had. The husband seeking equity is compelled to do equity, and a court of equity will make him provide for her, and where a settlement is decreed, it is the invariable practice to include a provision for the issue of the marriage, unless the wife waives the right to the settlement, according to the manner prescribed by the practice of a court of equity.
The settlement decreed by the chancellor was not, we presume, founded upon the wife's equity. The deed declared to be fraudulent and void, principally, if not entirely, embraced real estate. If these are to be settled on the wife, it should be in pursuance of some understanding or agreement, proven to have existed anterior to the marriage.
We can perceive no evidence in the record, which will authorize us to sanction the terms of the decree, nor do we think we should be justified in making the settlement conform to the allegation of its terms in the bill, in the absence of proof. It would lead to pernicious consequences, if the averment by the 

 [*23]  wife, after marriage, in relation to the character of a settlement [**14]  to be made upon her, should be taken as evidence, and form the foundation of a decree. Although such might be the result here, the danger would be, that her admissions, thus made in a bill, would tend to strip her of those customary guards, which a court of chancery for the wisest purposes has thrown around her interests.
We think that this decree should be reversed, so far as the same settles all the property of the wife in the mode therein designated, and that it should be remanded to the Chancery Court, that proof should be taken of the ante-nuptial agreement, if any existed, and that it may be decreed in conformity to such proof, and that if no proof shall be found to exist, of such agreement, that then the chancellor may in the progress of the cause, when he shall have the necessary evidence before him, decree such a settlement as shall conform to the wife's equity, unless the same shall be waived in the accustomed mode.
DECREE REVERSED IN PART AND CAUSE REMANDED.  

29 of 47 DOCUMENTS 

THE STATE use of PEREGRINE WROTH Adm'r of SARAH A. NICOLS vs. JEREMIAH NICOLS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 27; 1838 Md. LEXIS 11 

December, 1838, Decided 

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

THIS was an action of debt, instituted on the 7th September, 1835, by the appellant against the appellee, on a testamentary bond bearing date the 13th April, 1827; the condition of which was, that "the above bounden Jeremiah Nicols and William Barroll, executors of Henry Tilghman, shall well and truly pay all just debts and claims against the deceased, and all damages," &c. "and also all legacies bequeathed by the last will and testament of the late Henry Tilghman, then," &c.

The defendant pleaded general performance by himself and co-executor, (now also deceased,) of the bond declared on, in four different pleas.

The plaintiff replied, 1st, "that the said Henry Tilghman did, on, &c. make in due form of law his last will and testament, by which he bequeathed unto Sarah A. Nicols, the sum of $ 300, to be paid to her upon her arrival at the age of sixteen years, the interest to be paid annually to her guardian, or to such person as might have the care of her, for her use." That after making said will he died on, &c. and that by said will, the said Jeremiah Nicols and William Barroll were appointed executors thereof. The replication then [**2]  proceeded to set out the will as follows:

1st. I give and bequeath unto my cousin Elizabeth H. Nicols an annuity of $ 175, for and during her natural life, to be paid her by my executors and trustees, in two equal semi-annual payments, out of the funds herein provided for that purpose, the first payment to be due and commence from the day of my death.

2d. I will and direct that my executors shall as soon after my decease as practicable, invest in their names as trustees, under this my will, the sum of $ 500 in some public stock or banking company, either of the United States or state of Maryland, the interest or dividends on which said sum of money or stock, are hereby appropriated and set apart for the payment of the aforesaid annuity to the said Elizabeth H. Nicols, and in case the interest or dividends on the same shall at any time exceed the said annuity, the overplus is to belong to my residuary devisee; and in case the interest or dividends on the same shall at any time fall short of the said annuity, the deficiency is to be paid by my said residuary devisee to the said Elizabeth H. Nicols. And I hereby appropriate the sum of $ 3,000 of the moneys now deposited to my [**3]  credit in the Bank of Baltimore, to be used for the purposes above mentioned by my executors, and direct them to collect as soon as they can, the sum of $ 500 dollars to add to that amount, and in case I should at the time of my decease be possessed of any bank or other public stock, my said executors or trustees, are hereby directed to hold and apply the same as far as may be sufficient to create the fund above mentioned.

3rd. From and after the death of the said Elizabeth H. Nicols, I give and bequeath the, &c.

4th. In case the said Elizabeth H. Nicols should die before my niece Eleanor S. Tilghman shall be twenty-one years of age, then I will and direct, that the said annuity or sum of $ 175, shall be paid by my executors and trustees unto Margaret S. Nicols, Mary S. Nicols and Sarah A. Nicols, and the survivors of them equally in yearly payments, until my said neice shall be twenty-one years of age, or in case of her death, would have been twenty-one years of age. Nor is the said principal sum of money or stock to be paid to the issue of my said neice, until such time as the mother would have been twenty-one years of age, but to remain until that time, as a fund to discharge [**4]  the said annuity to the above named devisees; nor is the said principal sum of money or stock, or any part of it, to be paid over to any of the devisees named in the third clause of this my will, until the same time shall arrive for the payment of it to my said neice, in case my said neice had lived; but in all events, to remain until that time as a fund, for the payment of the annuity as provided in this clause of my will to the above named devisees.

5th. I will and direct that my lands called Dugan's Delight, situated near Georgetown Cross Roads in Kent county, shall be sold so soon after my decease as practicable, for which purpose I hereby appoint John B. Eccleston, Esq. my trustee, fully authorizing the said trustee, to sell the same at public or private sale, as he may think best, upon a credit of nine, fifteen, and twenty-one months, with interest from the day of sale, and as soon as the purchase money be paid, to convey the same, or any part thereof, in fee simple, to the purchaser. And I direct the said trustee to collect the money as soon as practicable, and pay it over to my executors, allowing the said trustee all the necessary expenses, and five per cent. on the said [**5]  money, as he may or shall collect and pay over the same; and in case the said trustee shall refuse or die without having completed the said trust, I authorize and empower my executors to appoint another trustee, who shall have the same power and authority in the premises as are given to the first trustee.

6th. I will and direct that the money arising from the sale of the said lands, shall be considered and taken as part of my personal estate, and shall be applied to the payment of the legacies hereafter mentioned.

7th. I give and bequeath unto my cousin Elizabeth Cooke, of the city of Baltimore, the sum of $ 500, to be paid at three years from my decease, without interest, until the day of payment shall elapse. I give and bequeath unto my cousin Mary Barroll, of Philadelphia, the sum of $ 500, to be paid at four years from my decease, without interest, until the day of payment shall elapse. I give and bequeath unto Rebecca Tilghman, widow of my cousin Edward Tilghman, Jr. of Philadelphia, the sum of $ 1,000, to be paid at five years from my decease, the interest thereof to be paid her annually by my executors until the said legacy shall be paid, and the first payment to be [**6]  due and commence at six months from my death. And it is my will, and I hereby direct that the said Rebecca Tilghman, shall have only the use of said sum of money during her life, and that upon her death, the principal or said sum of money, shall belong to, and be divided equally among such of her children now living, as may survive her; my executors are, however, in no manner or way to be answerable for the application of this money, after it shall have been paid over to the said Rebecca Tilghman.

8th. I give and devise unto my neice Eleanor S. Tilghman, the sum of $ 500, to be paid her after the aforesaid legacies are satisfied, and without interest.

9th. I will and direct that my negro woman Harriett shall be free, &c.

10th. I give to Elizabeth H. Nicols her choice of the following articles of my furniture, viz: &c.

11th. I give to James Nicols one feather bed, &c.

12th. I will and direct that a neat marble head stone and foot stone, shall be placed at the graves of my father, mother and sister, as soon as practicable after my decease, &c.

13th. I give to the several persons named in a memorandum filed with this my will, the several articles of property,  [**7]  or sums of money therein mentioned.

14th. I hereby constitute and appoint my friends Jeremiah Nicols and William Barroll, Sr., joint executors of this, my last will and testament, and trustees for the uses herein mentioned; and I will and direct that my said executors shall each be allowed a commission of five per cent. on all my personal estate, including the sales of the lands as such, (excepting my household and kitchen furniture, and farming utensils,) which shall be distributed, paid away or invested, during their executorship; and I hereby authorize and empower my said executors, to finish and complete any and all trusts vested in me, which may be unfinished at the time of my decease; and I further will and direct, that there shall be no appraisement or sale of my personal estate, but that my executors shall give bond as the law directs, for the payment of my debts and legacies, to which proceeding, I will and direct that my residuary devisee shall give his consent as the law requires; and in case of his refusal to comply with the provisions of my will, he shall forfeit and be deprived of all and every right and estate hereby devised to him, and the same shall be vested [**8]  in my said executors as trustees to receive the rents and profits thereof, until all my debts and legacies be paid--after which, the estate or property devised to him shall be returned to my said devisee or his heirs.

15th. I give and devise all the remainder or residue of my estate to my brother Edward Tilghman, 3d., his heirs and assigns forever, subject nevertheless, to the payment of my debts and legacies, in case my other estate should be insufficient.

16th. I direct my executors to assign and transfer to my brother Edward Tilghman, 3d., the bond and mortgage, (together with all other evidences of debt,) of William H. D. C. Wright, Gustavus W. T. Wright, deceased, and Robert Wright, deceased, that he may proceed to the collection of the said debts, as I have no doubt that it will form part of the residue of my estate.

17th. I give to my cousin Henrietta Hayward, wife of Thomas Hayward, Jr. my mahogany dining tables, &c.

18th. I give to Margaret S. Nicols the sum of $ 300, to be paid in two years from my decease, the interest to be paid annually from my death.

19th. I give to Mary S. Nicols and Sarah A. Nicols to each of them, the sum of $ 300, to be paid [**9]  when they shall respectively arrive at the age of sixteen years, the interest to be paid annually to their guardian, or to such person as may have the care of them, for their use.

In addition to the foregoing, I will and direct that my executors shall deliver over immediately, all the personal property on my farm, to my residuary devisee, (except the corn which is in the stone house,) excepting also such property as is herein devised to others, and it is my will, that the crops which may be growing on said farm at my decease, shall belong to the said devisee, and I will and direct that my said devisee, in consideration thereof, shall pay the wages of the overseer and hired hands, and all other expenses of the farm for the year.

I authorize and empower my executors, to change and transfer any bank stock, which I may hold at any time, they may think proper, to some other bank or stock, as they may think most conducive to the interest of the parties concerned.

The replication then proceeded to assign a breach of the bond in the non-payment of the legacy in the 19th section of the will, to Sarah A. Nicols, &c.

Replication to second plea.--That the said Henry Tilghman [**10]  in his life time, to wit, on the seventh day of February, in the year 1827, did make, and in due form of law, sign and executed his last will and testament in writing, and after the making and executing the said last will and testament, to wit, on the     day of    , in the year 1827, the said Henry Tilghman died, at Kent county aforesaid, by which said last will and testament, the said Jeremiah Nicols and William Barroll were appointed executors thereof, and by which said last will and testament, he, the said Henry Tilghman, gave and devised to Sarah A. Nicols the sum of $ 300, to be paid to her upon her arrival at the age of sixteen years, the interest on which said sum should be paid annually, to her guardian or to such person as might have the care of her, for her use; and the said state, by its said attorney, further saith, that the said Jeremiah, from and since the execution of the said writing obligatory, hath not paid or in any manner satisfied the said Sarah in her life-time, or the said Peregrine, administrator of the said Sarah, who is since deceased, to wit, at Kent county, aforesaid, the said sum of $ 300, so as aforesaid to her, by the will aforesaid, or any part [**11]  thereof, nor in any manner paid or satisfied to the said Sarah in her life-time, or to any person for her use, the interest on the said sum of $ 300, or any part thereof, nor to the said Peregrine, since the death of the said Sarah, although the said Sarah, if she had lived, would have been above the age of sixteen years on the first day of March, 1835; and so the said state, by its said attorney, saith the said Jeremiah hath not well and truly paid all just debts and claims against the said Henry Tilghman, deceased, and all damages recovered against him as executor aforesaid, and also all legacies bequeathed by the last will and testament of the said Henry Tilghman, deceased, according to the true intent and meaning of the said last will and testament, and according to the force, form and effect of the condition of the said writing obligatory, which he ought to have done, and this, &c.

Same replication to the third and fourth pleas.

Rejoinder of the defendant to the first replication.--"That he, the said Jeremiah, with a certain William Barroll, since deceased, whom the said Jeremiah hath survived, were appointed executors by the last will and testament of the said Henry [**12]  Tilghman, and they took upon themselves the burden of the said administration, and were also by the said Henry, constituted and appointed by his last will and testament trustees, to perform, execute, and fulfil the several trusts created, limited and appointed by the said will, and the said Jeremiah and William accepted the said trust, and of the money, goods, effects, rights and credits of the said Henry, did receive the said sum of $ 300, the legacy aforesaid, bequeathed to the said Sarah A. Nicols by the last will and testament of the said Henry, and the said Jeremiah in fact, saith that they, the said Jeremiah and William afterwards, to wit, on the thirteenth day of July, in the year 1828, and fifteen months after the date of the letters testamentary to them granted, at Kent county aforesaid, as executors of the said Henry, did pay over to themselves as trustees, appointed under the said will, the said sum of current money, amounting to the sum of $ 300, and the said Jeremiah further in fact saith, that all the interest growing due on the said legacy, was regularly paid over to Peregrine Wroth, the guardian and next friend of the said Sarah, to the time of her death, and after [**13]  her death to Peregrine Wroth her administrator, all of which the said Jeremiah is ready to verify. Wherefore he prays judgment of the said state, its action aforesaid, against him to have and maintain, ought, &c.

Rejoinder of the defendant to the second replication.--That the said Henry Tilghman by his last will and testament, did constitute and appoint the said Jeremiah and William executors of his last will and testament, and they took upon themselves the burden of the said administration, and did also by his said last will and testament, constitute and appoint the said William and the said Jeremiah trustees, to execute, perform, and fulfil the several trusts created, limited and appointed by his said will, and the said William and Jeremiah, whom the said Jeremiah hath survived, accepted the said trusts, and the said Jeremiah and William of the money, goods, chattels, and effects of the said Henry, did receive the legacy aforesaid, bequeathed unto the said Sarah, and they, the said Jeremiah and William, the executors aforesaid, after, on the thirteenth day of July, in the year 1828, at Kent county aforesaid, did pay over to themselves, the trustees aforesaid, the said sum of [**14]  current money, together with all the interest due, and growing due on the same, as they lawfully might, and this, he, the said Jeremiah, is ready to verify, &c.

Rejoinder to the third replication.--That the said Henry Tilghman, by his last will and testament, did appoint them, the said Jeremiah and William, whom the said Jeremiah hath survived, executors of his last will and testament, and they took upon themselves the burden of the said administration, and the said Henry did also constitute and appoint them, the said William and the said Jeremiah trustees, to execute and perform the trusts limited and appointed by his said will, and the said William and Jeremiah, did except thereof, and the said Henry Tilghman, by his said last will and testament, among other things did will and direct certain real estate of him, the said Henry, to be sold, and did appoint one John B. Eccleston to make sale thereof, and did direct the proceeds thereof to be paid over to the said Jeremiah and the said William, and the said John B. Eccleston, did accept the said trust, and made sale of the same, and did pay over to the said Jeremiah and the said William, afterwards, on the eighteenth day of September,  [**15]  in the year 1832, the proceeds of the sales of the said real estate, amounting to the sum of $ 1495, and the said Jeremiah, further in fact, saith, of the money, goods and effects of the said Henry, both real and personal, then came into the hands and possession of the said Jeremiah and the said William, the trustees aforesaid appointed by the said Henry, in his said last will, and the said sum of $ 300, the amount of the legacy bequeathed unto the said Sarah, part thereof was paid over by the said Jeremiah and the said William, to themselves, consisting of personal estate, as trustees under the said will, and part thereof by the said John B. Eccleston, the trustee aforesaid, to them, according to the will of the said Henry, and this, the said Jeremiah, is ready to verify, &c.

Rejoinder to the fourth replication.--That he, the said Jeremiah, and he, the said William, whom the said Jeremiah hath survived, were appointed executors of the last will and testament of the said Henry, and also trustees, to execute certain trusts, raised, limited, and appointed by the said will, and took upon themselves the burden of the said administration, and accepted the trusts; and the said Jeremiah [**16]  and William, by the acts and agency of the said William, of the money, goods, effects, rights and credits, of the said Henry, real and personal, received the amount of the legacy aforesaid; that is to say, the sum of $ 300, and the said Jeremiah and William, by the acts and agency of the said William, paid the said sum over to the said William, one of the trustees aforesaid, that is to say, on the thirteenth day of July, in the year 1828, at the county aforesaid, as they lawfully might, and this, the said Jeremiah, is ready to verify, &c.

Sur-rejoinder of plaintiff to first rejoinder of defendant.--That the last payment of interest on the said legacy of $ 300, bequeathed by Henry Tilghman to the said Sarah A. Nicols, was made in her life-time, some few months before her death, up to about the fourth day of April, 1828; and the said state also saith, that the said state, by any thing in the said rejoinder, alleged, from having and maintaining its said action to be precluded, ought not, because the said state saith, that the said Henry Tilghman, by his last will and testament, bequeathed the said legacy of $ 300, to the said Sarah A. Nicols, to be paid when she should arrive to [**17]  the age of sixteen years, by the said executors, Jeremiah Nicols and William Barroll; and they, the said executors, were not constituted and appointed by said last will and testament, trustees of the said legacy of $ 300, or the funds out of which the same was to be paid, nor was the same bequeathed, either expressly or impliedly to them, the said executors in trust for her, and the said state also saith, that the said state, by any thing in the said rejoinder alleged, ought not to be precluded from having and maintaining its action aforesaid, because the said state further saith, that the said executors, the said Jeremiah Nicols and William Barroll, of the money, goods, effects, rights and credits of the said Henry Tilghman, received the said legacy of $ 300, bequeathed by him, to the said Sarah A. Nicols, and did not, on the thirteenth day of July, in the year 1828, and fifteen months after the date of the letters testamentary, to them granted, at Kent county aforesaid, pay the same as executors to themselves, as trustees, appointed under the said will, and all this the said state is ready to verify, &c.

Sur-rejoinder to second rejoinder.--That the said Henry Tilghman, by his [**18]  last will and testament, bequeathed the said legacy of $ 300 to the said Sarah A. Nicols, to be paid when she should arrive at the age of sixteen years, that she died before she arrived at the said age, and letters of administration were not taken upon her estate until the 19th May, 1829, and that the interest on the said sum of $ 300 was not paid over to the said Sarah A. Nicols during her life, or to the said Peregrine Wroth for her, nor to the said Peregrine Wroth her administrator, since her death, and because the said state also saith, that the said Henry Tilghman, by his said last will and testament, did not constitute them the said executors, the said Jeremiah Nicols and William Barroll, trustees of the said legacy, or the funds out of which it was to be paid, nor was the same bequeathed, either expressly or impliedly, to the said executors in trust for her the said Sarah A. Nicols, and because the said state also saith, that the said executors, the said Jeremiah Nicols and William Barroll, of the money, goods, effects, rights and credits of the said Henry Tilghman, received the said legacy of $ 300 bequeathed to the said Sarah A. Nicols as aforesaid, and they the said executors,  [**19]  did not, on the said 13th day of July, in the year 1828, nor at any time before or after, pay the same, together with all the interest due and growing due on the same, over to themselves as trustees as aforesaid, and this the said state is ready to verify, &c.

Sur-rejoinder to third rejoinder.--That the said Henry Tilghman, by his said last will and testament, did not constitute and appoint the said executors, the said Jeremiah Nicols and William Barroll, trustees of the said legacy of $ 300, bequeathed to the said Sarah A. Nicols, or of the funds out of which the same was by the said will to be paid, nor was there any trust of the said legacy and funds, by the said will and testament, limited and appointed; and because the said state saith, that the money arising from the sale of the lands, devised by the said will to be sold by John B. Eccleston, the trustee for making the said sale, was directed by the said last will and testament, to be taken and considered as a part of their testator's personal estate, and to be paid over to the said executors, and applied by them as such, to the payment of certain legacies in the said will and testament bequeathed; and because the said state [**20]  further saith, that the said executors, the said Jeremiah Nicols and William Barroll, of the money, goods and effects of the said Henry Tilghman, both real and personal, which came to their hands and possession, they did not as executors, pay over to themselves as trustees a part of the said legacy of $ 300, and a part thereof received from the said John B. Eccleston, trustee according to the will of the said Henry Tilghman, in any other character than as executors, and this the said state is ready to verify, &c.

Sur-rejoinder to the fourth rejoinder.--That by the last will and testament of the said Henry Tilghman, no trust was raised or limited of the said legacy of $ 300, or of the funds out of which the said testator directed it to be paid, and the said executors, the said Jeremiah Nicols and William Barroll, were not by the said last will and testament constituted and appointed trustees to execute any such trust, and because the said state also saith, that the said Jeremiah Nicols and William Barroll, by the agency and acts of the said William Barroll, of the money, goods and effects, rights and credits of the said Henry Tilghman real and personal, did not receive the amount [**21]  of the legacy aforesaid, that is to say, the sum of $ 300, and the said Jeremiah Nicols and William Barroll, by the acts and agency of the said William Barroll, did not pay the said sum or legacy of $ 300, over to the said William Barroll as one of the trustees aforesaid, that is to say, on the 13th day of July, in the year 1828, at the county aforesaid, and this the said state is ready to verify.

Rebutter of defendant to first sur-rejoinder.--That the said Jeremiah and William were appointed and constituted by the last will and testament of the said Henry Tilghman, trustees of the said legacy of $ 300, bequeathed by the said Henry to be paid to the said Sarah A. Nicols when she should arrive at the age of sixteen years, and of the funds out of which the same was to be paid, and that the same was bequeathed to them the said executors in trust, for her the said Sarah A. Nicols, and the said Jeremiah as to the said first sur-rejoinder of the said state further saith, that the said Jeremiah and William did on the 13th day of July, in the year 1828, fifteen months after the date of the said letters testamentary to them granted at Kent county aforesaid, as executors as aforesaid, of [**22]  the money, goods, effects, rights and credits of the said Henry, pay over to themselves as trustees aforesaid, appointed under the said will, the said sum of $ 300, limited and appointed by the said last will and testament, to be paid to the said Sarah A. Nicols as aforesaid, and this the said Jeremiah prays may be inquired of by the county, &c. and the said state doth the like.

Rebutter of defendant to second sur-rejoinder.--That the interest on the said sum of $ 300, bequeathed as aforesaid by the said last will and testament of the said Henry Tilghman, to the said Sarah A. Nicols, was regularly paid over to the said Peregrine Wroth, guardian of the said Sarah A. Nicols, to the time of her death, and to the said Peregrine Wroth her administrator by William Barroll, aforesaid, one of the trustees under the will of the said Henry, to the time of his death, which happened the 12th day of March, in the year 1834, and that the said Henry Tilghman, by his said last will and testament, did constitute and appoint the said Jeremiah and William, trustees of the said legacy, and of the funds out of which it was to be paid, and that the same was bequeathed to them the said Jeremiah and [**23]  William, in trust for her the said Sarah A. Nicols, and the said Jeremiah as to the said second sur-rejoinder of the said state further saith, that they the said Jeremiah and William, did not as executors receive the said legacy of $ 300, bequeathed to the said Sarah A. Nicols, of the money, goods, effects, rights and credits of the said Henry, but they the said Jeremiah and William, did as executors aforesaid, on the 13th day of July, in the year 1828, of the money, goods, effects, rights and credits of the said Henry, pay over to themselves as trustees aforesaid, appointed under the said will, the said legacy limited and appointed by the said will, to be paid to the said Sarah A. Nicols, as aforesaid, together with all the interest due and growing due thereon, and this the said Jeremiah prays may be enquired of by the county, &c. and the said state doth the like.

To the third sur-rejoinder the defendant demurred generally, in which the plaintiff joined.

Rebutter of defendant to fourth sur-rejoinder.--That by the last will and testament of the said Henry, a trust was raised and limited of the said legacy of $ 300, bequeathed as aforesaid, to the said Sarah A. Nicols, and [**24]  that the said Jeremiah and William, were by the said last will and testament, constituted and appointed trustees of the said legacy, so as aforesaid bequeathed to the said Sarah A. Nicols, and that the said Jeremiah and William, by the agency and acts of the said William, of the money, goods and effects, rights and credits of the said Henry Tilghman, real and personal, did receive the amount of the legacy aforesaid, that is to say, the sum of $ 300, and that the said Jeremiah and William, by the acts and agency of the said William, did pay the said sum or legacy of $ 300, over to the said William Barroll, as one of the trustees aforesaid, that is to say, on the 13th day of July, in the year 1828, at the county aforesaid, and this the said Jeremiah prays may be inquired of by the county, &c. and the said state doth the like.

The county court (Hopper, A. J.) adjudged pro forma, that the sur-rejoinder to the third rejoinder of the defendant, was not sufficient in law, sustained the defendant's general demurrer to that plea, and gave final judgment for the defendant.

Thereupon the State brought this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO ORDERED.  

HEADNOTES:

It is not in the power of a testator to alter the legal character of real estate by directing that it shall be considered as part of his personal estate, and money arising from the sale of the former, therefore, when paid over to executors in pursuance of the will, will be held by them as trustees, and treated as equitable assets, though the testator has said it shall be considered as part of his personal estate, applicable in the hands of his executors, to the payment of legacies.

When executors give bond for the payment of debts and legacies, they subject themselves to an absolute and unqualified responsibility for their payment, without regard to the sufficiency, or insufficiency of the personal estate.

In the present case, there was no provision or trust in the will, in relation to the legacy sued for, which prevented a recovery of it upon the bond, given by the executors for the payment of debts and legacies.

Upon demurrer, which brings the whole record before the court, the established principle is, that judgment is to be rendered against the party, in whose pleading the first substantial vice is found.  

COUNSEL:
GEORGE VICKERS, for [**25]  the appellant, contended:

1. That the proceeds of the sale of the land made by the trustee, and paid over to the executors as personal estate, under the direction of the testator, were transmuted from equitable, into legal assets, and administrable as such. 1 Har. and John. 230. 1 Bro. C. R. 497. 1 Atkyn, 484. 1 Vern. R. 63. 2 Vern. 106. 3 Cond. E. C. R. 575.

2. That by the fair and legitimate construction of the bond, the executors were bound to pay the legacy for which this suit was brought.

That the liability of executors and administrators has been enlarged by our testamentary system, that they are reciprocal securities and answerable for the defaults of each other. Clark and Wife, adm'rs of Underwood, vs. Williams' executors, 6 Gill and John. 288.

That the condition of the bond is virtually to pay the legatee the specific sum of money bequeathed, at a particular period, without any collateral circumstance, or qualifying condition, and is equivalent to an ordinary money bond, with a single and absolute condition, and that neither plene administravit nor nulla bona can be pleaded; that assets are admitted, and that neither their extent, nor their nature, can [**26]  be inquired into an action by a creditor or legatee on the bond. State use Barber vs. Hammond's Executors, 6 Gill and John. 157. Duvall vs. Snowden, 7 Gill and John. 430. That an action by a creditor or distributee on an ordinary administration bond, could be sustained at all events to the extent of legal assets (where the fund was mixed,) if the pleadings presented the point, unless they alleged that the legal assets had been exhausted, and that the assets in hand were entirely an equitable fund. The point would then be fairly presented, whether equitable can be converted into legal assets, but the pleadings in this case admit legal assets to be in the hands of the executors without stating the precise amount.

3. There is no expression in the will constituting Messrs. Barroll and Nicols trustees.

1. It speaks of executors and trustees, but does not confound them. The duties required in reference to the legacy to Elizabeth Nicols, to the unfinished trusts, and to the residuary legatee, upon the contingency of his refusal to consent to the execution of a bond by the executors to the state, to pay debts and legacies, were such as justified the appellation of trustees, while [**27]  all the other duties enjoined upon them were executorial; but if the testator had denominated them trustees of the legacy, the duty to be performed, its nature and manner of execution, would have determined their character, that a testator cannot evade the testamentary laws by the appointment of trustees to do what naturally belongs to the office of an executor. That this is a common pecuniary legacy payable at a subsequent day, there being no distinguishing features, either in the nature of the fund, in the manner of the gift, or in the condition of the legatee.

2. That the executors as such being liable for this legacy, they could not discharge themselves by paying over to themselves as trustees, because if by operation of law the payment is made at the end of thirteen months, it would be an invitation to executors to violate their duty, in not paying before that period, for the purpose of relieving their securities from responsibility.

3. That the postponement of the time of payment cannot make any change in the subject.

Because it is usual, and because the act of 1798, ch. 101, sub ch. 10, sec. 11, provides that legacies payable at a future period, or money to be [**28]  paid upon a contingency, may be carried into the orphans court by the executor, which negatives the idea of any presumptive trust of the funds thus to be disposed of. Hunter vs. Bryson, 5 Gill and John. 483.

To the point presented by the appellee that the appellant ought to have demurred to the appellee's third rejoinder, instead of pleading over, he contended:

1. That the rejoinder was not precise and explicit, it being stated that the appellees were trustees, generally under the will, and not that they were trustees of this particular legacy, as they might well be trustees for some purposes but not for all, and hence the necessity of a sur-rejoinder denying the trust as to this particular legacy.

2. That it was an established rule in pleading, that in the examination of demurrer, the court will look through the whole record, and seizing upon the first error, decide against the party committing it, although he may be the person demurring. 1 Chit. P. 580.

3. That the first error in pleading was committed by the appellee, because he first pleaded performance of the condition of the bond, and in his rejoinder has departed, by assigning excuses for not performing it.  [**29]  Evans on P. 70. 1 Chit. P. 557, 558.

W. A. SPENCER, for the appellee.

The judgment below is right: 1. because there was error in the sur-rejoinder. The plaintiff ought to have met the rejoinder by a demurrer and tendered an issue in law. Step. on Plea. 24. Gould on Plea. 406. Matter of law is not traversable. 2 Saunder's Rep. 159, 160, notes 10 and 11. It was not for the jury to determine whether they were trustees. Matter of fact mixed with matter of law is vicious, because not triable by court or jury. The executors were appointed trustees for the plaintiff's intestate, because the testator had no power to appoint testamentary guardian. 2 Har. Ent. 326, is an authority that the appellee's pleadings are accurate. 3 Har. and McHy. 179. A bond is not necessary to be given to make the principle operate, that the executor shall hold as guardian. 3 Har. and John. 239. The defendant was not bound to demur. In looking to first fault, the court will examine the replication and regard it as the declaration in this cause.

2. William Barroll and the defendant being trustees under the will of Henry Tilghman, of his personal estate, the defendant in error is not answerable for the [**30]  legacy claimed in this suit on the testamentary bond. They are made executors, that they may collect the funds, and trustees that they may control it. It is made their duty as trustees to invest the fund. This might have been done by the executors, if the testator had not designed they should act as trustees. As soon as they collected the funds as executors, they became trustees. The 14th section of the will makes them trustees. The testator only meant to make the proceeds of the sale of the lands a fund for the payment of the plaintiff's legacy. In the case of Elizabeth, the executors are made trustees to hold the legacy. They are made trustees for the use of his will.

By the act of 1798, ch. 101, sub ch. 14, sec. 6, legatees may sue the bond. It is only liable for the legal duties of the executor. Suppose the will shows that the legacy is not to be paid by the executor, as executor would the bond be liable? Suppose the legacy is charged upon land, and to be paid by the devisee? By the act of 1798, a time is limited for settling administrations. The testator could not enlarge the liability of executors by postponing the time of paying legacies beyond fifteen months. Here the [**31]  legacies were payable long after fifteen months. Which character was intended? They paid to themselves as trustees by implication of law, what they had received as executors.

3. The judgment below is right, because the funds of the late Henry Tilghman, upon which the legacy is charged, being part real assets and part personal, the defendant in error is not answerable on the testamentary bond.

As the pleadings stood, the assets could not be marshalled by the jury, being part payable out of the real, and part out of the personal assets. Bond as we have shown is not liable for legacies payable out of the real assets. This legacy was payable out of the funds to be paid by John B. Eccleston. Bac. Abr. title Executors, 416. We may look to the character of the legacy under the will, to ascertain if it is covered by the bond. Clay vs. Willis, 1 Barn. and Cres. 364.

In 8 Serg. and Low. 103, the executors could not receive a fund as executors, but must take it as trustees, although a deed directed the fund to be paid to them as executors. 9 Law Lib. 106. This last case shows that the proceeds of real estate are equitable assets, although directed by the testator to be considered [**32]  part of the personal estate. If Eccleston had refused to pay over the money to the executors, they must have sued in equity, and could not have sued at law for money had and received. The case of the creditors of Sir Charles Cox, 3 P. Wms. 341. Ambler, 308. Lewin vs. Okely, 2 Atk. 50. 1 Br. C. R. 134. Bailey vs. Ekins, 7 Vesey, Jr. 319. Shiphard vs. Lutridge, 8 Vesey, Jr. 26.

W. CARMICHAEL, on the same side.

The replication of the plaintiff first showed the cause of action, and the defendant could not before make his defence; hence that defence can be no departure. If a departure, the defendant would have expected a demurrer and not a plea over. The sole question, however, for this court, arises upon the demurrer to the third rejoinder. This is not a question for a jury. It relies not on a formal but a substantial defect. Where was the money until time of payment over to the legatee? It was a trust will from beginning to end, both in words and substance. By act of 1798, ch. 101, sub ch. 10, sec. 11, power of investment is given to orphans court over legacies payable in future; but here it was not necessary to exercise that power, for trustees are appointed by the will. Seegar [**33]  vs. State, 6 Har. and John. 162. So soon as they received the money as trustees, they were discharged as executors. So soon as the bond was executed they became trustees.

But suppose the executorship continued during the ordinary period prescribed by law. The principal sum remained in their hands as trustees. The form of the bond merely requires them to perform the duties prescribed by law. The direction of trusts--nor the power of the testator to create a trust, not affected by this bond.

The case in 3 Har. and John. 239, shows that the property vested in the executors as trustees, especially after the expiration of fifteen months. The plaintiff below considered the real and personal estate as objects of administration; and the court of appeals had decided that the proceeds arising from the sale of land were not objects of administration. Hence the act of 1831. If the party meant to proceed against the trustees, it must be in equity. Equitable assets cannot be administered at law. The course of pleading pursued here is sanctioned by the case in 3 Har. and McHy. which in fact determine the defendant in this case. 2 Har. and Gill, 179. 1785, ch. 72, sec. 10.

PEARCE and [**34]  PAGE, in reply.

Insisted there was no general trust pervading this will; that there were some particular trusts carefully created, but none which had reference to the legacy claimed. A trust in relation to that was excluded, by the nature of the will. Expressio unius est exclusio alterius.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*46]  STEPHEN, Judge, delivered the opinion of the court.
This suit was instituted in the court below, upon a testamentary bond given by the executors of the last will and 

 [*47]  testament of Henry Tilghman, late of Kent county, deceased, for the payment of debts and legacies, pursuant to the provisions of the act of assembly, passed in the year 1798, ch. 101. The object of the suit was to recover a legacy given by the will of said Tilghman, to Sarah A. Nicols, to be paid on her arrival at the age of sixteen years, the intermediate accruing interest to be paid annually to her guardian, or to such person as might have the care of her, for her use. The legatee dying before the legacy became payable, conformably to the terms of the will, the suit was brought by her administrator [**35]  on the bond, given by the executors against the appellee, the surviving executor, to compel payment of the legacy, according to the terms and conditions of that bond. To the declaration filed upon it the defendant pleaded performance, and the plaintiff in his replication, assigned as a breach of the condition of the bond, the non-payment of the legacy, given by the will of the said Tilghman to his intestate. To this replication there was a rejoinder put in by the defendant, in which he attempts to repel the plaintiff's claim, and bar its recovery on the bond given by the defendant, on the ground of a trust created by the will, which constituted the executors trustees of the legacy, and exonerated them from all liability on their bond for the payment of the same. Upon the best consideration we have been able to give to this subject, after all the light derived from an examination of the authorities referred to in the course of the argument, we have come to the conclusion, that upon the true and legal construction of the will of Henry Tilghman, by which the legacy in question was bequeathed, the executors were not constituted trustees of the said legacy, nor responsible for the payment [**36]  of the same, in the first instance in that character, to the exclusion of their liability upon their bond. On the contrary we think that the suit was well brought upon the bond, and that the matters and facts stated in the defendant's third rejoinder to the plaintiff's replication furnished no legal defence to the action. The testator directs that there shall be no appraisement or sale of his personal estate, but that his executors 

 [*48]  should give bond, as the law directs, for the payment of his debts and legacies. In his will he directs his land called Dugan's Delight, to be sold by a trustee named in the will, and the proceeds of sale to be paid by the trustee to his executors, which he directs to be considered as part of his personal estate, and to be applied to the payment of the legacies thereafter mentioned, including the legacy, the subject matter of the present controversy; and he charges the estate devised to his residuary devisee, with the payment of his debts and legacies in case his other estate should be insufficient. He also gives to each of his executors a commission of five per centum upon all of his personal estate, (excepting his household and kitchen furniture,  [**37]  and farming utensils,) including the money arising from the sale of the land directed to be sold, which should be distributed, paid away, or invested during their executorship. It is true, as was held in 9 Barnewall and Creswell, 489, the testator could not alter the legal character of the property, by directing that it should be considered part of his personal estate; and that the money in their hands would be held by them in the character of trustees as equitable assets, and not as legal assets, to be administered by them in their character of executors, in a due and legal course of administration. But the direction of the will in that respect, although legally unavailable, is strikingly illustrative of the testator's intention, in requiring his executors to give bond for the payment of his debts and legacies, by which they subjected themselves to an absolute and unqualified responsibility for such payment, without regard to, and apart from any consideration, as to the sufficiency or insufficiency of his personal estate. The money arising from the sale of his real estate, was manifestly intended as an auxiliary fund, to supply a contemplated deficiency of the personalty, and [**38]  together with the charge in the residuary clause of his will, was intended as an indemnity, to protect his executors from any loss or damage which might arise from the personal responsibility incurred by them in executing the bond he had required them to give. It is 

 [*49]  clear beyond controversy, that the executors are not expressly constituted trustees of the legacy in question, and are expressly charged by the will in their character of executors, with the payment of the legacy of $ 1,000, to Mrs. Rebecca Tilghman, of Philadelphia, after the expiration of five years from the death of the testator, the interest to be paid annually until the principal should become due; and the testator provides in his will, that his executors should not be responsible for the application of the money after the payment of the legacy as directed by the will. Upon the whole of this case then as presented by the record, we think that the plaintiff's right of action upon the bond, was not barred or extinguished by any trust created by the will of the testator as set out in the pleadings in this case; and that his right to recover the legacy in the suit instituted upon it, was unaffected and unimpaired,  [**39]  by any provision or trust in relation to such legacy contained in the will. From these premises the conclusion necessarily follows, that the matters and allegations contained in the defendant's third rejoinder to the plaintiff's replication, are substantially defective as a defence to the action, and wholly insufficient and inoperative in law to bar the plaintiff's remedy upon the bond given by the defendant. If this view of the nature of the rejoinder be correct, the legal effect of the demurrer to the sur-rejoinder bringing before the court the whole record, and the well established principle being that the party in whose pleading the first substantial vice or defect is discovered must fail, it results as a necessary legal consequence, that the judgment of the court below in favour of the defendant was erroneous, and ought to be reversed.
JUDGMENT REVERSED AND PROCEDENDO ORDERED.  

30 of 47 DOCUMENTS 

THE UNION BANK OF GEORGETOWN vs. THE PLANTERS' BANK OF PRINCE GEORGE'S COUNTY, MD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 439; 1838 Md. LEXIS 3 

June, 1838, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Prince George's county court.

THIS was an action of assumpsit, commenced on the 11th November, 1834, by the appellants against the appellees. The plaintiffs below declared for money had and received; money lent and advanced; paid, laid out, and expended; and upon an insimul computassent. The defendants pleaded non-assumpsit; non-assumpsit infra tres annos, and actio non infra, &c. On these pleas issues were joined.

At the trial of the cause the following exceptions were taken:

1st EXCEPTION.--In this case, the plaintiffs, an incorporated bank of the District of Columbia, proved by a competent witness, that between the years 1820 and 1829, inclusive, it had extensive mutual dealings with the defendants, a banking corporation of the state of Maryland, consisting of mutual remittances, for collection and credit, which remittances as collected, according to the well established, and mutually understood, usage of banking, were to be by the party receiving them, credited on its books, to the party sending them, and to be held as deposites, and subject to the drafts of the said last party. That on the 16th December, 1828, and 22d day of August, 1829, the plaintiffs,  [**2]  according to the general banking usage in such cases, rendered to the defendants, in letters of those dates, addressed by the cashier of plaintiffs, respectively, to the cashier and president of defendants, accounts of such mutual dealings in detail. One account commencing April 1st, 1827, and ending December 16th, 1828, and the other extending thence to August 9th, 1829; showing a balance due to, and claimed by plaintiffs from defendants, by first account, of $ 676.31, and by the second account, of $ 797.02, which letters were in the following terms:

Dear Sir,--I cover for our credit with you, E. Belt's check on your bank for $ 485.75; J. R. Magruder's check on your bank for $ 9; and I enclose a copy of our account, showing a balance due us of $ 676.31. The account commences April 1st, 1827.

I am your ob't,

D. ENGLISH, Cashier.

UNION BANK OF GEORGETOWN, August 22d, 1829.

J. R. MAGRUDER, Pres't Planters' Bank.

Dear Sir,--I cover a copy of our account since last rendered, shewing a balance due us of $ 797.02. We have of your notes $ 2,525, and J. Johnson's check for $ 22.89. The notes and check sent on Tuesday after you closed. July 25th, I wrote Mr. T.  [**3]  that we had $ 1,500, and you will see by a prior letter when we had $ 1,000; when I requested him to retain as many of ours, but received no answer to either. The notes falling due hereafter, I hope you will receive the amount, and transmit the money to us.

And the said president, on the 25th day of last month, acknowledged said letter and account, by the following letter, to wit:

PLANTERS' BANK OF PRINCE GEORGE'S COUNTY, August 25th, 1829.

Dear Sir,--Your two letters of the 22d were received by the mail yesterday. One enclosing a copy of your account, showing a balance in your favour of $ 797 02. The only note for collection deposited by you, and not overdue, is Sasscer's, due 7-10th September, and this you had better direct to be returned to you, for he may insist upon paying it in the paper of this bank, which I am not prepared to say he would not have a right to do. Ray's draft on J. A. Magruder is not paid. Our board has come to the determination to make no distinction between depositors and bill-holders, under any circumstances. The paper which you hold, I would advise you to deposite, and take a certificate for it. Your account shall be examined and adjusted as [**4]  speedily as possible; at present we are very much engaged.

In haste, dear sir, yours, very respectfully,

J. R. MAGRUDER, President.

Addressed and sent to the cashier of plaintiffs, and since that time the plaintiffs have received no notice from defendants of objection to, or denial of the said account, or any part thereof, or refusal to account with plaintiffs for the claim therein made, until a short time less than three years, before the 11th day of November, 1834, when the present action was brought.

And the plaintiffs then further proved, that, during all the period aforesaid, it was the general, well-established, and recognized usage of banks, in cases of such mutual dealing as aforesaid, that the same should be adjusted and settled in the following manner: one party desiring an adjustment, renders a full account of the mutual dealings between the parties, as exhibited by its books; which account is compared by the party receiving it with its books, and if any discrepancies appear on such examination, a statement of the differences, called a reconciling statement, is returned for explanations to the party furnishing the original account; and so mutual explanations [**5]  are made and received, backwards and forwards, by the parties, until all the differences are reconciled, or finally denied. And that it was, and is, the usage and custom of banks to infer and assume, from the absence of any report of differences on an account rendered as aforesaid, the correctness of such accounts; that there was no difference as to such usage or custom, when one of the banks had suspended specie payments. And thereupon the plaintiffs prayed the court to instruct the jury that on the proof aforesaid given in evidence, they may infer an acquiescence on the part of the defendants, in the correctness of such original account so rendered as aforesaid by the plaintiffs, although it was also given in evidence by defendants that on the 10th of August, 1829, specie payments were suspended by defendants, and they have not since resumed active banking operations, which suspension was known to plaintiffs in August, 1829, but have confined themselves to adjusting and settling their old business.

The Court, DORSEY, A. J., refused to give the instruction, and the plaintiffs excepted.

2d EXCEPTION.--In addition to the evidence contained in the preceding bill of exceptions,  [**6]  which it is agreed shall make a part of this exception, the plaintiffs further to support the issues on their part joined, offered evidence to the jury of a balance, amounting to several hundred dollars due them from the defendants, resulting from the mutual dealings between them as banking institutions, as set forth in said former bill of exceptions terminating on the 8th of August, 1829. And they further read to the jury the following letters; the first two from the plaintiffs to the defendants, and the latter from the defendants to the plaintiffs.--See ante page 440-41.

And also proved, that a few months previous to the institution of this suit, Robert W. Bowie, the president of the Planters' Bank, said to the president of the Union Bank, that he would submit the account of the Union Bank to a board of directors of his bank, but did not admit or deny the correctness of said account. Thereupon the defendants proved, by competent testimony, that at the date of the plaintiffs' letter of the 22d August, 1829, above referred to, it was known to them that the defendants had suspended specie payment, and discontinued active banking operations, which event occurred on the 10th of August,  [**7]  1829, as was also proved by the defendants; and they further proved, that a public notice, announcing that fact to the public, was published in the newspapers in the District of Columbia, Baltimore, and Annapolis, at the time, in the following terms:

"Whereas, the very general prevalence of reports injurious to the credit of this institution, have produced such incessant demands for specie, that in the opinion of the board it has become necessary, at least for a period, to suspend the redemption of its paper. In adopting this course, the board of directors consider it their duty to assure the creditors of the institution, that the funds of the bank are, in their opinion, abundantly sufficient to discharge all its obligations, so soon as the same can be made available; and they are also justified in the belief, that the period when this can be effected is not far distant. The board likewise make known to the stockholders that, so far as they can at this time determine of the situation of the bank, they entertain a decided conviction that there will not be ultimately a considerable loss; indeed, they are persuaded there will be none, because it is not believed that the amount of [**8]  bad debts will be more than equal to the surplus profits. The board, therefore, whilst they earnestly advise the bill-holders and depositors to submit to no sacrifices, feel themselves perfectly warranted in holding out to the stockholders the prospect of full indemnity. It is in contemplation to appoint a committee to investigate carefully the affairs of the bank, and when the same shall be completed, a full exposition of its situation will be laid before the public. Resolved, therefore, that, until further notice, the paper of the Planters' Bank of Prince George's County will not be redeemed, and that the president cause this preamble and resolution to be communicated to the public, by inserting a copy in one or more newspapers in the District of Columbia, and the cities of Baltimore and Annapolis, and by putting one at the door of the banking-house."

And thereupon the defendants, by their counsel, prayed the court to instruct the jury that if they should believe, from the evidence in the cause, that more than three years had elapsed between the commencement of the present suit and the termination of all dealings between the plaintiffs and defendants, that in that case the plea [**9]  of limitations is a bar to the plaintiffs' recovery in the present action, unless the plaintiffs can produce some recognition of indebtedness, or promise, by the defendants, within three years next before the commencement of this suit, or since, to pay the plaintiffs' claim. And secondly, the defendants, upon the evidence, further prayed the court to instruct the jury that the cause of action, if any, in this cause, accrued at least as early as the jury shall find that all dealings between the parties terminated; and if the jury shall find that said dealings terminated three years, or more, before the institution of the present suit, that then the plea of the act of limitations is a bar to the plaintiffs' right of action, unless the jury shall find from the evidence, that within three years next preceding the impetration of the original writ in this cause, or since, the defendants acknowledged an indebtedness to the plaintiffs, or promised or assumed to pay the amount of their claim, or some part of it. Which instructions, so prayed by the defendants, the court granted. The plaintiffs excepted.

The verdict and judgment being against them, they brought the cause to this court.  [**10]  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

When accounts are rendered by one banking institution to another, according to a proved usage between them, and when it was further proved, that in case either objected to the account of the other, it was the usage for the objecting bank to give notice thereof to the other, in the absence of such objection, the jury may infer that the bank receiving the account acquiesces in its correctness.

The circumstance that the bank receiving the account has suspended payment and general banking operations, can make no difference, when it was in proof that such bank was, notwithstanding, engaged in settling up its business.

When a bank holding deposites has suspended specie payments, the act of limitation runs against the depositors, from the time the fact of such suspension is known to them.

Although the county court may have erred in the direction given by them to the jury, this court will not reverse the judgment, if the party appealing has not been prejudiced by the error.

A party cannot avail himself of the exception in the act of limitations, in favour of accounts between merchant and merchant, concerning the trade of merchandise, without relying on such exception in his pleadings.  

COUNSEL:
C. COX, for the appellants.

This is an action brought in the Prince George's county court by the appellants, a foreign incorporated banking company, against the appellees, a domestic company of like character, to recover a balance due on their mutual dealings as bankers, consisting of reciprocal remittances of money, bills, checks, and notes for collection and credit, and which, when collected were, according to the well established usages of banks and the common understanding of the parties, held as deposites for the use of the remitting party, and to be paid over on their draft. See 1st and 2d bills of exceptions.

In most of its essential features, the claim of the appellants is similar to that of the Farmers and Mechanics' Bank of Georgetown, against the same defendants, tried at the last term of this court. The counsel, too, in both cases are the same here and in the court below; and in both cases, it was the common understanding of the counsel, and so conceded to the court and jury, that bank deposites are to be paid to the depositor on demand, at the counter of the bank; and with this conceded understanding, both causes were tried below. This [**11]  understanding of counsel is noticed, in the opinion of this court, in the case tried here at the last term, after both the trials below, and will now be recognized. In the opinion of this court referred to, it is settled that this usage as to bank deposites, will not be judicially recognized without proof. But this court seeing that the usage was, or might probably have been, susceptible of proof, would not be disposed, in the circumstances of this case, to conclude the appellants from the benefit of such proof, did it not sufficiently appear on the record; and, it is submitted, would feel the justice of remitting the cause to the court below under a procedendo, that the rights of the appellants might not be sacrificed by reason of a defect influenced by the appellees' concession. It is believed, however, that the record does exhibit competent evidence of the usage; for it is there shown, that the deposites were payable only on the drafts (or checks) of the depositors on the bank.

The question then occurs on the operation of the act of suspension of the defendants, to change the pre-existing fiduciary relation of the parties. The general principle, that such act supersedes the [**12]  necessity of draft or other demand by the depositor, since the decision of this court already referred to, is become res judicata, and is no longer open for discussion. But that decision does not establish that the former fiduciary relation between the parties may not be renewed and continued, with modifications adapted to the altered position of the suspending bank, so as to prevent, alike, an action and the running of the statute of limitations; and the present position of the banks in general throughout the country, admonishes the court of the mischief that such an extension of the decision might produce, and will constitute a strong argument against it. As is well known, we have in our country a double currency; first the constitutional currency of coin; and secondly, the conventional currency of paper, the convenience of which has caused it for the most part to supersede the use of the other. The great object of banks is to create the paper currency, and it has a credit and value graduated by its convertibility into coin. If immediately convertible, it is of equal value with the coin; if otherwise, it still has a value and credit graduated by the estimate of its ultimate convertibility.  [**13]  This is illustrated by the market of suspended bank paper at different periods of the banking history of the country, both when the suspension has been general, and when it has been only partial. A convention may, therefore, well be entered into between depositor and suspended bank, and be sanctioned by law, whereby the pre-existing fiduciary relation between the parties shall be continued, with the only modification (adapted to the changed position of the bank) that during the period of the suspension, the drafts of the depositor shall only be payable in the paper of the suspended bank, or its equivalent. Such convention may be express or implied. It is by no means unreasonable, in cases like the present, where the ultimate solvency of the suspending bank is unquestionable, and there is a certain demand by the debtors of the bank for such paper to discharge their debts, in which it is to all intents as available as coin. In the absence of any negation by the suspending bank, its accession to such convention is fairly to be inferred; and it is submitted, that it may be fairly held to be a case for the election of the depositor, whether to consider the fiduciary relation as continued [**14]  or closed.

Here, however, it is submitted, that the mutual accession of parties to the convention, for the continuance of their fiduciary relation, may be fairly inferred from the record; from the limited extent of the suspension, as shown by the preamble and resolutions of the defendants; from the subsequent correspondence and verbal communication between the parties and their agents; and the transmission and sanction, as shown in the first bill of exceptions, of the mutual accounts. It may be here observed, too, that this preamble and resolution of suspension, extend only, by their terms, to the bill-holders, and not to the depositors of the banks. These discriminations between bill-holders and depositors are common, and many instances are now being exhibited, by different banks of the country. The utmost length, therefore, that the court below could properly go for the extension of the act of suspension to depositors, was to leave it as a matter of evidence and construction for the jury; and so far as any of the instructions, or refusals to instruct, by that court proceed, on the assumption of such extension, it is error.

The court's refusal to grant the prayer of the [**15]  appellants in the first bill of exceptions was erroneous, alike on the proof given of the usage and custom of banks, as on general principles. Starkie on Evid. pt. 4, p. 37.

The court also erred in the instructions contained in the second bill of exceptions, that without reference to the period of the appellees' suspension, the statute of limitations commenced to run against the appellants' claim from the termination of the dealings between the parties. These last instructions clearly assume to decide peremptorily that the ordinary relation between bank and depositor authorizes an immediate action by the latter without previous demand and refusal of the deposites; and reject in advance any evidence that the depositor might have been prepared to offer, of an usage requiring a previous demand at the counter. If there be error in either bill of exception, the court will reverse the judgment and award a procedendo, for it will not undertake to pronounce on the ability of the appellants if not thus interrupted in their proof, to make out their demand by competent evidence, covering every requisition of the law of this court as settled by the case of the Farmers and Mechanics' Bank [**16]  of Georgetown.

Should the court hold the aforegoing positions untenable, this alternative view is respectfully submitted:

The appellants are admitted on the record to be a foreign banking company, as the appellees are a like domestic company. These companies are merchants. The term merchant is in England, according to the general acceptation of the word, confined to him who buys and sells any commodities in gross, or deals in exchange: that traffics in the way of commerce either by importation or exportation; or that carries on business by way of commission, vendition, barter, permutation, or exchange, &c. Beame's Lex. Merc. Ed. of 1752, p. 31. The word merchant, includes every description of traders. Mayor of London vs. Wilkes, Salk. 445. 12 Petersdorff, Ab. 614. Drawing and re-drawing bills of exchange for large sums and a continuation of it, is a trafficing in exchange. Richardson, et al, vs. Bradshaw, et al, 1 Atk. 128. Drawing bills of exchange for large sums is merchandising. Hankey vs. Jones, Cowp. 746, 751. Now this "dealing in exchanges" is one great object of all banks, and as such is recognized and allowed in express terms in every known charter of incorporation.  [**17]  And the accounts in the present case are such "as concern the trade or merchandise between merchant and merchant which are not residents within this province," in the terms of the act of assembly, 1715, ch. 23, sec. 2. Bond, et al, vs. Jay, 7 Cranch, 350. In the trial below several issues were submitted to the jury, one, the general issue, and others on pleas of the statute of limitations; and the record shows, that under the former the appellants showed a balance due them of several hundred dollars. On this issue then, the appellants were entitled to a verdict, and the general instructions of the court below, on all the issues, that the appellants were not entitled to recover, so far as applicable to this issue, was erroneous. Is this error immaterial? It is respectfully submitted that it is not, and that on a verdict in favour of the appellants on this issue, they might have claimed a judgment in their favour. It may be admitted that under the issues on the pleas of the statute of limitations, did they stand alone, the appellants could not have given in evidence their character as foreign merchants, and that this should have been made a matter of special replication to the pleas.  [**18]  But the record shows an admission of the character of the appellants as foreign merchants, (under which admission the cause was tried below,) and proof under the general issue of a balance of several hundred dollars due them from the appellees, the result of their mutual dealings as banks in the proper business of banks, which dealings were not within the purview of the statute of limitations, but expressly excepted from the operation thereof. It is not the case of a mere personal privilege, as of infancy, &c. where the subject matter is expressly within the statute, but the case shows a claim established to which the issues on the statute of limitations never would be applicable in any circumstances.

J. JOHNSON and PRATT, for the appellees.

This suit was commenced by the appellants against the appellees on the 11th of November, 1834, and was brought to recover a balance claimed to be due the plaintiffs, upon accounts between them as banking institutions, the last item of which was on the 9th of August, 1829. Five years, therefore, and more, had elapsed, from the termination of all dealings between them and the institution of the suit.

To the declaration which contains [**19]  the money counts, and an insimul computassent, the defendants pleaded non-assumpsit and limitations, to which there were issues, and the first question is, whether the statute is a bar to the action.

It is not very clear, that any question upon the act of limitations is in fact raised by the plaintiffs' prayer in the first exception. After offering proof of the claim, consisting of dealings between the parties as incorporated banks from 1820 to 1829, and letters from each to the other, written by their respective agents, and proof of the usage in the case of such accounts, the plaintiffs prayed the court to instruct the jury, that from such proof they might infer an acquiescence by the defendants, in the account rendered by the plaintiffs, which prayer the court refused to grant.

Now, from the frame of this prayer, and the evidence upon which it is founded, it is rather to be inferred, that the purpose of the plaintiffs was to establish the existence of their claim, and not to save it from the operation of the statute of limitations.

The plaintiffs first proved, that by their letters of the 16th December, 1828, and 22d August, 1829, they rendered their accounts to the [**20]  defendants; the last ending on the 9th of August, 1829, and showing a balance then claimed by the plaintiffs, of $ 797.02. That according to the usage among banks, they, the plaintiffs, had a right to expect, that if any errors were alleged to exist in these accounts, they would be pointed out by the defendants, &c. and that in the absence of such allegation of error, the plaintiffs had a right to assume their correctness; and the amount of their prayer is, that the jury may from this proof do the same thing--that is, may infer the acquiescence of the defendants in the correctness of the plaintiffs' accounts.

The prayer does not assume that such acquiescence will obstruct the running of the statute of limitations, nor does the court say that such will or will not be the case, but simply, that the circumstances adduced by the plaintiffs will not authorize the jury in inferring the defendants' acquiescence in the correctness of the account rendered them by the plaintiffs.

But waiving this objection, and conceding that the question of limitations is presented by this exception, it is insisted that the decision of the county court is perfectly correct.

There is not in this [**21]  case any evidence of a usage, that the money, bills, or notes, sent to, or deposited with the defendants by the plaintiffs, for collection, were to be paid at the counter of the bank, nor do the prayers assume, nor will the argument yield any such position. That any usage of the kind is proved is not pretended.

The prayer in the first exception came from the plaintiffs, and for its assumptions the defendants are not responsible; but in fact it assumes nothing in relation to the mode of payment. The defendants' prayers in the second exception are, simply, that limitations are a bar, if the jury find that more than three years had elapsed from the termination of the dealings between the parties and the commencement of the suit, and that the cause of action accrued as early as the jury shall find the dealings did terminate, unless an acknowledgment should be proved.

These prayers, therefore, assume nothing in reference to the mode of payment.

But suppose such to have been the case, this court has already decided, in the case of the Farmers and Mechanics' Bank against the same defendants, that such usage cannot be judicially recognized by the court, without proof of its [**22]  existence; though in that case, the court considered the existence of the usage to have been assumed in the prayers, and yielded impliedly in the argument; neither of which is done here. The observation in the notes of the appellants' counsel, that the counsel for the Planters' Bank are the same in this case as in the former, can hardly be of sufficient force to transplant the assumptions of the one case to the other. There would be about as much propriety in taking the facts of that case and putting them to this, because the counsel happened to be the same.

In the case of the Farmers and Mechanics' Bank, the defendants' first prayer was, "that if the jury should find that the dealings between the parties terminated in 1829, and that from that time to the present the defendants had recognized no indebtedness, but had refused to settle and allow the plaintiffs' claim, that limitations is a bar."

The Court of Appeals say, that, "the county court was clearly in error in refusing this prayer, the act of limitations being a conclusive bar to the action, whether the defendants have refused to settle or allow the claim asserted by the plaintiffs or not."

And they further say,  [**23]  that the other four prayers in the first exception should have been granted, not upon the special grounds assumed by the prayers, but upon the general effect of the statute, independently of such special grounds.

This decision, it is confidently insisted, is decisive of this case, there being not one single particle of evidence of that usage, from which alone a contrary determination could be anticipated.

But there are other grounds for the affirmance of the judgment of the county court in this case, even if the usage as to payments at the defendants' counter had been proved.

It is in evidence here, that the defendants stopped payment, and discontinued active banking operations on the 10th of August, 1829, and that, that fact was known to the plaintiffs on the 22d of the same month and year, being more than five years before they commenced their suit.

In the case of the Farmers and Mechanics' Bank, the defendants in their second exception proved the fact of suspension, but did not prove that the plaintiffs knew of it; and, upon that ground alone, this court decided that the defendants' prayer in this exception should not have been granted, upon the assumption of [**24]  the existence of the usage in reference to payments at the counter; though this court reversed the judgment of the county court even in this exception, because they assumed such usage without proof, which the Court of Appeals say they were not warranted in doing; and the act of limitations being a bar, in the absence of such proof, the defendants' prayer in this exception should have been granted.

In considering the opinion of the county court, in the second exception, in the case of the Farmers and Mechanics' Bank, this court, in the first place, assume, that they are to take judicial notice of the before mentioned usage, and upon that assumption say, that limitations would not run against the plaintiffs, unless payment of their claim had been refused by the defendants, or some act had been done by the defendants (a knowledge of which is brought home to the plaintiffs) dispensing with the necessity of a demand of payment at the counter of the defendants. And the court further say, that "such dispensation is abundantly furnished by the acts of the defendants on the 10th of August, 1829." But this court go on to say, that a knowledge of those acts not being brought home to the [**25]  plaintiffs, or not with sufficient conclusiveness to justify the county court in assuming the fact, they did right in refusing the defendants' prayer upon that ground.

The acts of the 10th of August, 1829, referred to by the court, were the suspension of specie payments, and discontinuance of active banking operations. These acts, the court say, if known to the plaintiffs, would (even in case the usage referred to was established) dispense with the necessity of a demand at the counter of the defendants, and from the time of such knowledge put the act of limitations in motion against the plaintiffs. In the case now before the court, express knowledge of those acts is brought home to the plaintiffs, as early as the 22d of August, 1829, more than five years before suit was brought, and consequently, even assuming the usage to be proved, the claim is effectually barred.

The counsel for the appellants adverting to the general condition of the banks throughout the country, admonishes the court against the danger of extending the doctrine established in the case of the Farmers and Mechanics' Bank, beyond the limits which the facts of that case render imperatively necessary; and [**26]  whilst he admits that the question is now no longer open, that a suspension of specie payments by a bank supersedes the necessity of a demand at the counter, either to create the right of immediate suit, or to put the act of limitations in operation, nevertheless contends that other circumstances may arise, which will revive or continue the former fiduciary relations of the parties, and thus prevent the statutory bar from attaching.

Our first answer to this view of the case is, that according to the express language of this court, in the case of the Farmers and Mechanics' Bank, mere fiduciary relations between the parties to a suit, will not per se prevent the running of the act of limitations. In courts of law, trusts have no force in opposition to the statute, except as indicating the time at which the cause of action accrued, as had been before decided in the case of Green vs. Johnson, et ux, 3 Gill and Johns. 391; in which it was further held that, at law, there was no such head of pleading as trusts.

Our next answer is, that supposing a conventional arrangement between depositor and suspended bank, that the drafts of the former should be paid in the paper of the suspended [**27]  bank, or its equivalent, during the suspension, (as is supposed in the argument of the appellants' counsel,) and thus render a demand necessary at the counter of the bank of payment in such medium, before a right of action would arise, there is not in this case a shadow of proof of any such convention. Before, therefore, the court can adopt any such hypothesis, they must assume the existence of such convention, in the absence of all attempts to prove it; and in addition to that, they must assume that payment in the medium spoken of, was only to be made at the counter of the bank, without any evidence of a usage to that effect. And this the court is asked to do, with the fact of their opinion in the case of the Farmers and Mechanics' Bank against these appellees; though in that case, they expressly say, that they can take no judicial notice of such usage without proof; although its existence was impliedly, at least, assumed in the defendants' prayers, and in the argument on both sides in this court.

But apart from these considerations, which are deemed conclusive upon this point, it is not perceived how the present condition of our banking institutions can have any influence upon [**28]  the decision of this case, even if the court can take judicial notice of their condition.

The suspension of the Planters' Bank occurred on the 10th of August, 1829, and the general suspension not until May, 1837. It is difficult to imagine, therefore, how arrangements which are supposed to be the result of a state of things occurring seven years afterwards, can be attributed to the transaction in question. Besides, the Planters' Bank not only suspended specie payments, but she discontinued banking operations, which of itself repudiates the idea of arrangements applicable alone to institutions continuing in the full exercise of all their functions, but which, from peculiar circumstances, are unable, for a season, to meet their engagements to the public.

But there is another answer to this notion, which must be insurmountable. The Planters' Bank had failed, and the Union Bank, it is conceded for the purpose of argument, was a depositor, and of course a creditor.

In this state of things the counsel for the appellants supposes, and asks the court to suppose, that an arrangement was made between these two banks, by which the Planters' Bank was to retain the money, to be paid [**29]  on demand at her counter, in her own notes. Why, how would this better the condition of the Union Bank? The notes of her debtor would be of no more value than a credit upon her books, especially as it appears, from the letter of the president of the defendants, that they had determined to place the note-holders and depositors upon the same footing.

Thus, therefore, the court is asked to imagine a convention, without a title of proof; to attach to that a usage, which they have already said they cannot assume without proof; when it is perfectly manifest that the convention, if made, would in no respect have bettered the condition of the creditor. If the probabilities of the arrangement were ever so strong, this court could not, and would not make it the basis of judicial action without proof; and they will hardly do so, when every presumption resulting from its entire futility is against it.

The appellants' counsel does not contend that the proof in the second exception, that the president of the defendants said he would submit the plaintiffs' account to the directors, takes the case out of the statute. That it does not is clear, from the cases of Oliver vs. Gray, 1 Harr. and [**30]  Gill, 216; and Frey vs. Kirk, 4 Gill and Johns. 509.

There was no acknowledgment of a present subsisting debt, from which a promise could be implied, as is essential, according to those decisions.

The plaintiffs' counsel contends, that if the county court erred, in either exception, this court will send the case down upon procedendo. This is not so. If upon either exception, and especially the last, they agree with the defendants, the the case will not be sent back. If the law of that exception is right, the final judgment must be for the defendants. In the case of Morgan vs. Morgan, 4 Gill and Johns. 395, this court refused a procedendo, even when they reversed the judgment of the county court rendered for the defendant, because they said the plaintiff could ultimately recover nothing.

The same thing was decided in Berry vs. Harper, same book, 467; and in Green vs. Johnson, et ux, 3 Gill and Johns. 389. In this latter case, which was an action of assumpsit, the judgment below was for the plaintiff, but this court being of opinion that limitations which were pleaded was a bar, reversed that judgment, and refused a procedendo. That was going much farther than is necessary [**31]  here, for in this case all we ask is, that no procedendo shall be awarded if the judgment is affirmed; and we cannot suppose that a procedendo will be ordered, to re-try a case which was decided right, when it was refused when the first judgment was wrong; especially when the form of the action and the defence is precisely the same in both cases.

The appellants' counsel present one other view of this case. He assumes that these two banking institutions are merchants, and asks that the exceptions in favour of merchants' accounts be applied to the transactions between them.

Now, in the first place, if the plaintiffs designed to avail themselves of the savings in the act of limitations, in favour of accounts between merchant and merchant, he should have replied the savings, and not taken issue upon the plea of limitations, as he has done. 1 Chitty, Pl. 555.

By taking issue upon the pleas, the plaintiffs "admitted their legal sufficiency and applicability," as this court say in the case of Green vs. Johnson, et ux, 3 Gill and Johns. 396. And further, that by doing so, "they admitted upon the record that, if true, the verdict must be for the defendants."

But waiving [**32]  this objection, is it true that merchants' accounts are out of the reach of the act of limitations, if there be, as here, no item within the prescribed time? In the case of Coster vs. Murray, 5 Johns. Ch. R. 522, Chancellor Kent, after reviewing all the cases upon the subject, comes to the conclusion that accounts, even between merchant and merchant, are within the statute, if there be no item within the time limited by the statute.

The Court of Appeals of South Carolina, in 1826, concurred with Chancellor Kent. Angell on Limitations, 214.

And from the language of this court, in Green vs. Johnson, et ux, 3 Gill and Johns. 394, it may fairly be inferred, that they are not disposed to increase the number of exceptions.

The appellants' counsel has cited several cases, to show that banks are to be regarded as merchants; that all persons having mutual dealings, are entitled to the benefit of the exception in favour of accounts between merchant and merchant.

That this exception applies to all persons having mutual dealings, if the last item of the account is within the prescribed time, may be admitted; and yet the plaintiffs' claim will not be saved, unless it can be [**33]  shown that these banks are merchants within the meaning of our act of assembly, and that their accounts concern the trade of merchandise; for there is no item on either side of the account within three years. It may be admitted, we say, (though the admission is only made for the sake of the argument) that where the parties dealing together are merchants, and the subject of their dealings merchandise, that it is not necessary that any one item in the account should be within three years; in other words, that such accounts are not embraced by the statute; and yet, as these banks are not merchants, nor the subject of their dealing merchandise, the claim is barred by the statute, there being no item within three years.

All the cases upon the subject show, that where the accounts are not between merchants, strictly so called, and the account does not concern the trade of merchandise, there must be some one item within the time to preserve those which are not, from the bar of the statute. The court will find the distinction between the mutual dealings of parties who are not merchants, and those accounts which concern the trade of merchandise between merchants, spoken of in Angell on [**34]  Limitations, 205, 206. And that it is only in reference to the latter, that it has ever been decided that there need be no one item within the time limited, to save the rest of the account from the statute. Unless the parties are merchants, and their accounts concern the trade of merchandise, some one item within the prescribed period is indispensable. If there be none such, the whole claim is barred; and that being the case here, the effect of the plea would not be removed, even if the plaintiffs, by their pleadings, had put themselves in a position to raise the question, which they have not done.

The case of Bond, et al, vs. Jay, 7 Cranch, 350, was between merchant and merchant, and concerning the trade of merchandise, strictly so called, and the exception was presented by the replication to the defendants' plea of limitations.

Suppose we are in error upon this point, and the plaintiffs might have availed themselves of the exception in favour of merchants' accounts, by their declaration or a special replication to the plea of limitations, this court will not, if the judgment of the county court was right upon the questions decided by them, remand the record, for the purpose [**35]  of enabling the plaintiffs to amend their pleadings.

In the case of Watchman & Bratt vs. Crook, et al, 5 Gill and Johns. 239, an application of the kind was refused after argument.

But it is said, that if the plaintiffs' prayer in the first exception ought to have been granted, the court was clearly wrong in instructing the jury upon all the issues against them. No such instruction was given. In the first exception, the court simply refused the plaintiffs' prayer; and in the second, granted those of the defendants, which asserted that the claim was barred by limitations, if the jury from the evidence believed certain facts.

The prayers refer exclusively to the operation of the act of limitations, and the court granted them in the terms in which they were asked, without the slightest reference to any other issue.

Upon the first exception, the appellees' counsel would make this additional remark. If the omission of the defendants to point out errors in the accounts transmitted them by the plaintiffs, is evidence of acquiescence, as is insisted by the plaintiffs, then their claim rests upon an account stated, and as such is barred by limitations, even if they are viewed [**36]  as merchants, and the account concerning the trade of merchandise, within the strict sense of the statute. Freeland vs. Herron, et al, 2 Cond. S. C. R. 449. Angell on Limitations, 199.  

JUDGES:
Argued before BUCHANAN, C. J., ARCHER, DORSEY, CHAMBERS, and SPENCE, J.  

OPINIONBY:
ARCHER 

OPINION:

 [*459]  ARCHER, Judge, delivered the opinion of the court.
We think the court were in error in the first bill of exceptions, in not granting the plaintiffs' prayer; that the jury were at liberty to infer from the silence of the defendant, their acquiescence in the correctness of the account rendered by the plaintiffs to the defendants.
These accounts, according to the proof offered in this exception, were rendered to the defendants according to the usage as proved, and as it was further proved, that in case there should be any exception taken to the accounts, such exception or disagreement, was, by usage, notified to the plaintiff, and no such notification being given, it was a reasonable inference, that the defendant thus receiving the account, had acquiesced in its correctness, and the inference was the stronger in this case, as according to the practice and usage of the banks, in case of failure, to [**37]  notify differences in the respective accounts of the banks, for the bank transmitting 

 [*460]  its account, to infer that it was not objected to, and was admitted to be correct.
The suspension of specie payments in August, 1829, and the declension of banking operations from that time, by the defendants, can make no difference in the sufficiency of the evidence, to enable the jury to draw the deduction sought by the plaintiffs, as it was in evidence that the defendants, The Planters' Bank, were engaged after the suspension, exclusively in the settlement and adjustment of their business, and the plaintiffs had a right to expect the observance of the usage in regard to the settlement of their mutual accounts, notwithstanding they had suspended banking operations, as they were still engaged, and exclusively engaged, in the settlement and adjustment of their accounts.
The second bill of exceptions arises on the statute of limitations. The defendants pleaded non-assumpsit; non-assumpsit infra tres annos; and actio non-accrevit infra tres annos. The plaintiffs took issue on the first plea, and issue was joined on the second and third pleas; so that the only questions the [**38]  jury had to try, or which could legitimately be submitted to them, were, whether the defendants had assumed to pay the claim; whether they had assumed to pay within three years; and whether the action had accrued within three years anterior to the institution of the suit.
There is certainly no evidence in any of the bills of exceptions, of any admission by the defendants, which could prevent the running of the statute.
The claim of the plaintiffs consists of remittances for collection, and of credits, which according to the usage as proved, when collected, were placed to the credit of the bank sending; and to be held as deposites, liable to draft. The defendants, The Planters' Bank of Prince George's County, suspended payment on the 10th of August, 1829, and by the letter of the cashier of the defendants, dated 25th August, 1829, the plaintiffs are informed, that the defendants had resolved to make no distinction between depositors and bill-holders: and it is in evidence, that this suspension of payment, 

 [*461]  was known on 22d August, 1829, to the plaintiffs. The time then from which the statute of limitations would commence running, according to the opinion of this court,  [**39]  in The Farmers' and Mechanics' Bank of Georgetown vs. The Planters' Bank of Prince George's County, would be the period when the plaintiffs first had knowledge that the defendants had suspended specie payments: and not the period when the transactions between the parties terminated, as assumed by the court in their directions to the jury.
The dealings between the parties terminated according to the evidence on the 9th day of August, 1829. The court were therefore in error in instructing the jury that the cause of action accrued, at least, as early as the jury should find all dealings between the parties terminated, and that limitations commenced to run from such period instead of dating the commencement of the running of the statute, from the day when the plaintiffs first had knowledge of the suspension of payment by the defendants.
But the plaintiffs, from the evidence in the cause, were clearly barred of their action, more than three years having elapsed from the date of knowledge by the plaintiffs of the suspension of payment by the defendants: and the plaintiffs are in no manner, therefore, prejudiced by such erroneous direction. For, whether the one period or the [**40]  other be assumed, as the day from which to date the running of the statute, the plaintiffs are equally barred. Nor do they receive any prejudice by the erroneous refusal of the court to grant their prayer contained in the first exception, for, by the evidence in the cause, their claim was clearly barred by limitations.
If, as is supposed, this were a case of accounts between merchant and merchant, concerning trade and merchandise, to have availed themselves of it, the plaintiffs should have specially replied the fact to the defendants' plea; until this was done, the disclosure in evidence of the fact, could have no effect on the issue which the jury were sworn to try.
JUDGMENT AFFIRMED.  

31 of 47 DOCUMENTS 

THE TIDE WATER CANAL COMPANY vs. ANN ARCHER. Harford County Court.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 479; 1839 Md. LEXIS 1 

May, 1839, Decided 

PRIOR HISTORY:
 [**1]   THIS case was argued at this term, before MAGRUDER and PURVIANCE, Judges.  

HEADNOTES:

It is settled in this state, that the power to take private property for public uses, upon making just compensation, may be exercised for the benefit of the public, by individuals, or by corporations, upon whom the legislature has, within proper limitations, conferred the power so to exercise it.

In construing statutes giving powers, that are to be applied to a great public object, depending for its success upon the judgment of the officers entrusted with its execution, and in whom there must of necessity be vested large discretionary powers, the interpretation should be liberal.

Care should be taken on the one hand, to secure to the individual whose property is appropriated to the public, a just and reasonable compensation; and on the other, that the objects contemplated by the grant of the powers, shall not be defeated, or embarrassed.

A jury summoned under the Act of 1825, ch. 180, to assess the amount of damages sustained by the owners of property, though at liberty to enlighten their own judgments by the testimony of others, are not, as juries in ordinary civil and criminal cases are, bound by the weight of evidence.

They may be governed greatly by the "view" which they take of the lands to be valued by them, when they meet thereon.

In determining questions of fact, in which the verdict of an ordinary jury would never be disturbed, if justified by the weight of the evidence, their decision would be open upon review by the court.

In cases arising under this statute, and other kindred ones, the reviewing tribunal may hear new testimony, as good cause against the inquisition, and set it aside upon such new evidence, though upon the proof submitted to the jury the verdict was right.

The proceedings of a jury empanelled under this law, and others of a like nature, are not to be regarded as those of a common law jury, and the jurors who signed the inquisition, may be examined as witnesses, as to the grounds and motives of their finding; in order to ascertain whether their verdict is not the result of mistake in the facts, as well as the law.

That the sheriff who summoned the jury, may have been partial to, or prejudiced in favour of one of the parties to the controversy, is not per se sufficient to set aside the inquisition, if it appears that no injustice has been done to any one.

The objection, that a juror is related to the parties, or interested in the land to be condemned, should be taken by way of challenge, before he is sworn, and comes too late, upon a motion to vacate the inquisition.

In cases of inquisition, to condemn property under this law, and others of a like nature, all the papers returned by the sheriff are to be regarded as one whole, each constituting a part of the other, and to be construed together, as a record of the proceedings.

The inquisition itself, need not assert upon its face, that the sheriff administered an oath to every juryman.

It is sufficient if the fact appears by his return, and the very language of the oath prescribed by the statute need not be followed, if the substance is preserved.

If other persons, beside the particular proprietor in the case, have an interest in the land condemned, it is not a valid objection, that such interests do not appear upon the face of the inquisition.

Where an appeal is allowed by law from the finding of the jury, and upon such appeal, the case is to be tried de novo, as if no finding had taken place, it is not laches in either party, that he offered no evidence, or forbore to offer all his evidence upon the first trial,--and if the law granting the appeal is repealed before the appeal is heard, that does not deprive the party in shewing cause against the inquisition, in the original court of the privilege of offering the proof, which he omitted before, relying upon his right of appeal.

It is not necessary that the jury in their inquisition, should describe the lands by metes and bounds.--If the description is such as to enable the party to make a true location, it is sufficient; and as in cases of deeds of conveyance, and inquisitions in the nature of ad quod damnum; matters in pais, may be resorted to, to arrive at the true location.

But where the first line of a parcel of land was described, as "beginning at the lands of H. S. and running thence down the Canal, and parallel thereto," and no natural boundary, plat or diagram was referred to, as designating the spot, at which the starting point on the lands of H. S. was situated, the description was held insufficient, and incurable by a resort to extrinsic circumstances.

The court in a proceeding of this kind, has no jurisdiction to correct the description, except by consent of parties.--Nor would the tender of a deed by the land proprietor, correcting the description, but refused by the other party, vary the case; and it seems that either party, may take advantage of the defect.

If the party in possession of the land have but a life estate, and the jury condemn it in perpetuity, and allow damages as for a fee simple, the whole estate is bound by the inquisition, though notice is only given to the party in possession, the owner for life, and the proprietor of the fee may get his proportion of the damages by applying to chancery for a distribution.

The rule by which damages are to be estimated, is in all cases a question of law, though the application of it is for the jury.

In estimating the value of property condemned for the public use, the jury should give the proprietor what, in their judgment, it would actually at the time, sell for, and not what it might bring, or perhaps ought to produce, at some future period.

Possible or probable profits resulting from the enjoyment of the property, are not proper to be considered by the jury in making up their verdict; but they should limit themselves to the direct loss sustained by the owner, or other persons having an interest in the property sought to be condemned. 

COUNSEL:
By WM. SCHLEY and OTHO SCOTT, for the Company, and MCMAHON and R. JOHNSON, for Mrs. Archer.

The nature and circumstances of the case are fully stated by the learned judges, before whom it was tried and decided.  

JUDGES:
Argued before MAGRUDER and PURVIANCE, Judges.  

OPINION:

 [*481]  THE questions now to be decided in this case, arise upon objections filed by the Tide Water Canal Company, to the affirmance of the inquisition returned to the clerk of this court by the late John Carsins, who was at the time of the taking and of the return thereof, the sheriff of Harford county, and the same having been taken on parcels of land alleged and stated in and by said inquisition, to be owned and claimed by Mrs. Ann Archer of said county. The objections are filed under a provision in the 13th section of the act of assembly of 1825, chapter 180, entitled "an act for the promotion of internal improvement," which section was ingrafted by the fourth section of the act of 1825, chapter 200, upon the charter of a company formerly called the "Susquehanna and Patapsco Canal Company," whose corporate name was changed [**2]  by the third section of the act of 1835, chapter 340, and first section of 1835, chap. 356, by which enactments the company thereafter became, and was known and designated by the name and style of "The Tide Water Canal Company." The 13th section of the act of 1825, chap. 180, after prescribing the manner in which the inquisition is to be taken, directs it when taken, to be returned by the sheriff to the clerk of his county, and then goes on to provide that "unless good cause be shewn against the said inquisition, it shall be affirmed by the court and recorded; 

 [*482]  but if the said inquisition should be set aside, the said court may direct another inquisition to be taken in the manner above prescribed," &c. &c. It is under this provision that the Canal Company has offered its objections, and has alleged as cause why the inquisition should be set aside, not only that the damages allowed are excessive, but that there are many and various other grounds, all of which are set forth distinctly, and any of which, if sustained by the court, ought, as it is contended by the counsel of the company, to prevent the affirmance of the inquisition. It has not, heretofore, been the [**3]  practice of the court, in cases arising under the acts of assembly authorizing the condemnation of private property for public purposes, to assign at length, their reasons for their decision. It has been their usual course, simply to affirm, or to set aside, as in the exercise of a sound discretion, it seemed best to them, the inquisition taken and returned to the court; but as the case now under consideration, is one involving a large amount of money--affecting in its principles, many other cases now depending and awaiting its decision, and which it is most probable, cannot be finally settled until there is an adjudication upon the many questions which have been presented by the argument, to the consideration of the court--as it is one of a class of cases, in relation to which there have been several legislative enactments, and as moreover, it has been ably argued by the counsel of both parties respectively, it is, perhaps expected, but is, at any rate, fit and proper that reasons should be assigned for the decision now about to be made.
As most, if not all, of the objections set up by the Canal Company are founded upon the provisions of the 13th section of the act of 1825, chapter [**4]  180, and as much of the validity of those objections will depend upon the true construction of that section, it may be well, before we proceed to an examination of the several questions, to make a very few remarks upon the policy of that statute, and the object and intention of the legislature in passing it. The power of appropriating to public uses the property of any individual, 

 [*483]  whenever the public exigencies require it, on the equitable and indispensable condition that such individual shall receive just compensation for his property so taken, has been heretofore decided in this case, in one of its earlier stages, to exist in the state, and has been conceded, in the argument, by all the counsel. This power, or as it is termed by the books, the right of "eminent domain" is inherent in every government. It has been settled in the judicial tribunals of every state in which the right to its exercise has come under review, to be a legitimate assertion of power by the legislature, in all cases in which they do not stop short of providing for compensation. And it is equally well settled now, and in this state certainly, that this right may be exercised for the benefit of the [**5]  public by individuals, or by corporations, upon whom the legislature has, within proper limitations, conferred the power so to exercise it.
The "act for the promotion of internal improvement," (1825, chap. 180) was almost the commencement of those great undertakings, which in the language of one of our statutes (1824, chap. 79) was "to establish a connected navigation between the eastern and western states, so as to extend and multiply the means and facilities of internal commerce and personal intercourse between the two great sections of the United States, and to interweave more closely all the mutual interests and affections that are calculated to consolidate and perpetuate the vital principles of union." The legislature had previously created a board of public works, and had, in other respects, manifested a determination to prosecute with vigour, that great system of internal improvement which was to advance the prosperity and elevate the character of the state, and this act (1825, chap. 180) was a portion of the legislation which was necessary to carry out that system. In interpreting statutes which confer powers that are to be applied to a great public object, depending for its [**6]  successful results upon decision of character and maturity of judgment in the officers and others entrusted with its execution, and in whom, from the very nature of the case, there 

 [*484]  must necessarily be vested large powers, resting much for their exercise in discretion, and that discretion undefined, our construction ought to be benign and liberal--whilst on the one hand, we should regard these statutes as remedial acts, intended to carry into execution that most important and equitable provision in favour of private right, that whenever public necessity demands that the property of any individual should be appropriated to public uses, he shall receive a just and reasonable compensation therefor, and give to the expressions of the lawgiver the sense most suitable to the subject and best adapted to ensure to such individual the most liberal compensation for the damages he may sustain, we are, on the other hand, so to construe them as not only not to embarrass or defeat their purposes, but as far as we properly can, to facilitate and promote the success of a great and generous scheme of public policy. We are not to regard as wrong-doers or trespassers, those who in the execution [**7]  of the work of public improvement, must necessarily come in conflict with private right, provided they act with good faith, and with sound common sense. Private rights of every description must give way upon such an occasion, to the permanent interest of the public, upon fair and reasonable compensation, otherwise it would be impossible to accomplish any scheme of internal improvement of any magnitude, involving heavy expense. The legislature having, in such cases, provided for the payment of compensation to the owner of private property whose individual rights have been impaired, whenever that is paid to the claimant of damages, the state succeeds to his right. The state becomes a purchaser; and the sole reason why the purchase is not one in fact and made in the ordinary way is, that the parties cannot agree upon a sale, for it is only "in case of disagreement," where there is a legal capacity to contract that the power to condemn by process of law, the lands wanted for public uses, is conferred by the state upon those whom it has constituted its representatives in carrying out the scheme of public policy.
With these principles or rules of interpretation for our 

 [*485]  guidance,  [**8]  let us now consider the various objections which have been interposed by the Canal Company, as causes why the inquisition returned by the sheriff, in this case, ought not to be confirmed. The particular section under which the several questions growing out of these objections, arise (sec. 13 of 1825, chapter 180) is in the following words, viz: "And be it enacted, that it shall and may be lawful for the president and directors, or a majority of them, to agree with the owners of any land through or on which it is intended that the said canal or any of the works thereunto appertaining shall pass or be situated, for the purchase or use and occupation thereof, and in case of disagreement, or in case the owner thereof shall be a feme covert, under age, non-compos, or out of the state or county, on application to a justice of the peace of the county in which such land shall be, the said justice of the peace shall issue his warrant under his hand and seal, to the sheriff of the county, to summon a jury of eighteen inhabitants of his county, not related to the parties, nor in any manner interested, to meet on the land to be valued, at a day to be expressed in the warrant, not less [**9]  than ten, nor more than twenty days thereafter; and the sheriff, upon receiving the said warrant, shall forthwith summon the said jury; and when met, shall administer an oath or affirmation to every juryman who shall appear, being not less than twelve in number, that he will faithfully, justly and impartially, value the land and all damages the owner thereof shall sustain by cutting the canal through such land, or the use or occupation for the purposes and period necessary, of such land, according to the best of his skill and judgment, and that in such valuation he will not spare any person for favour or affection, nor any person grieve for malice, hatred or ill-will; and in every such valuation and assessment of damages the jury shall be, and they are hereby instructed to consider, in determining and fixing the amount thereof, the actual benefit which will accrue to the owner from conducting the said canal through, or erecting any of the said works upon his land, and to regulate their verdict thereby, except 

 [*486]  that no assessment shall require any such owner to pay or contribute any thing to the said company, where such benefit shall exceed in the estimate of the jury, the [**10]  value and damages ascertained as aforesaid; and the inquisition thereupon taken, shall be signed by the sheriff and some twelve or more of the jury, and returned by the sheriff to the clerk of his county, and unless good cause be shewn against the said inquisition, it shall be affirmed by the court and recorded; but if the said inquisition should be set aside, or if, from any cause, no inquisition shall be returned to such court within a reasonable time, the said court may, at its discretion, as often as may be necessary, direct another inquisition to be taken in the manner above prescribed, and upon every such valuation, the jury is hereby directed to describe and ascertain the bounds of the land by them valued, and the quantity and duration of the interest and estate in the same, required by the said company for its use, and their valuation shall be conclusive upon all persons, and shall be paid by the said president and directors to the owner of the land or his legal representatives, and on payment thereof, the said company shall be seized of such land, as an absolute estate in perpetuity, or with such less quantity and duration of interest in the same, or subject to such partial [**11]  or temporary use or occupation, as shall be required and described as aforesaid, as if conveyed by the owner of them," &c. &c.
The first objection which we shall consider is that which charges the late sheriff who returned this inquisition, with partiality to the proprietors of the lands taken under it, and with prejudice against the Canal Company, and with having acted in this behalf, under the influence of those feelings "in this, to wit: that he summoned particular persons to attend as jurors in this case, from his knowledge or belief, that said persons, as jurors, would not be in favour of awarding high damages; and purposely omitted to summon certain other persons, as jurors, from his knowledge or belief that said omitted persons, if summoned and sworn as jurors, would not be in favour of awarding high damages; and also in 

 [*487]  this, to wit: that at the time of summoning the jurors in this case, or some one or more of them, he openly advocated the giving of high damages to the proprietors by juries, and spoke in terms of reproach and disparagement of certain individuals, who had served on former juries, because such individuals had refused to sign some inquisition [**12]  or inquisitions on the ground that the damages allowed, were, in their judgment, high and excessive; and also in this, to wit: that on the day this inquisition was taken, and before the same was found, he urged upon the jury, or some one or more of them, that high and liberal damages ought to be given to the proprietors of lands, taken for the use of said company." Connected with this objection are several other additional ones, five in number, which charges the sheriff with corruption, as well as with prejudice and partiality, and which set out in detail the facts upon which the charges rest, and which facts are substantially embraced in the objection herein above recited. In coming to the conclusion at which we have arrived on this point, it became necessary to consider and decide another question which was argued, and that was, whether the testimony of the jurors who found this inquisition, could be taken before the court on the whole subject of this review, or if not, then to what extent it could be received. We do not intend to question, in the slightest degree, the authority of the case decided by the chief judge of this court, referred to in the argument, and which will be found [**13]  reported in a note to the case of Bosley vs. The Chesapeake Insurance Company, 3 G. & J. 450. On the contrary, we think that decision, which was pronounced after a careful examination of the books, entitled to the same respect in which it is held by the profession, and which it has deservedly received from the reporters of the highest court in this state. And the reasoning with which the learned judge sustains his opinion, is strong and founded upon sound sense, independent of the cases referred to by him as having been adjudicated by other tribunals. He says that those decisions establish the principle "that no evidence can be received from 

 [*488]  the jury to show mistake," and thinks "those decisions right, because were the law different, an inquisition might be instituted in every case, into the grounds and motives of a jury for their finding, in order to ascertain whether in coming to given conclusions, they had not mistaken facts. Verdicts of juries would then, in all cases, be uncertain. To permit such inquisitions into the motives of juries, would it appears to me," continues the judge, "be against public policy, and lead more frequently to the prostration [**14]  of justice than to its preservation." The courts in England have also refused to receive the affidavits of jurors to explain the grounds of their verdict, and show that they intended something different from what they found. But the case in the note to 3 G. & J. 450, 473, just referred to, and it is believed also all the other cases in which the doctrine has been established which excludes the testimony of jurors, were instances of a common law jury, whose verdict is entitled to peculiar sanctity, and the rule rejecting the affidavits of jurors composing a panel of that species of jury, to impeach their verdict is strict, and rarely, if ever, departed from. (Canal Bank of Albany vs. Mayor, &c. of Albany, 9 Wend. 254, & cases ib. cit.) There is one case, however, which was tried before a common law jury, wherein, after a careful review by the supreme court of New York, of all the authorities, the affidavits of two of the jurors were received, on a motion for a new trial, to show that in making up their verdict, they adopted a principle, in estimating damages, not allowed by law, (5 Cow. 106, 121, Sargent vs. Deniston.) And the court [**15]  there say that the affidavits may be received in the case before them, without impeaching the principle of either class of those cases which had passed under their review. It is true that in this last case, it is stated that the counsel for the plaintiff, in summing up, told the jury that they must find according to a principle which was afterwards, on hearing the motion for a new trial, disapproved by the court, and which not being corrected by the judge who presided at the trial below in his charge after the counsel had summed up, led the jury astray, and they in 

 [*489]  consequence allowed in their verdict what was claimed upon an erroneous principle of law. The court say, "this is in effect, equivalent to a misdirection of the judges. It is clearly the duty of the court to interfere in such a case, if the facts come properly before them." So that even a common law jury may be allowed to testify as to their having, in making up their verdict, estimated the damages upon a principle erroneous in point of law. This decision may have some bearing upon another question in this case, hereafter to be considered.
In the view which we take of the nature, duties, and powers of the jury [**16]  which is constituted by the 13th section of the act of 1825, chapter 180, we shall not, in any wise, disturb the rule which has been adopted by the decisions above adverted to. It seems to us that the legislature did not intend to throw around that jury all the attributes and rights of a common law jury, nor to confine it to the duties and limitations to which a common law jury is subjected. In performing the duties prescribed to him by the provisions of that section, the juryman is not to govern himself "according to the evidence" adduced in the cause, as a juror in ordinary cases, is sworn to do, but he is to act "according to the best of his skill and judgment." We do not mean to say, that in cases of this kind, the jury are prohibited from listening to testimony, because the practice in this state has been to do so, and the opinion of the chief justice of the supreme judicial court of Massachusetts pronounced in a case arising under a statute conferring upon a jury a similar power to estimate upon view, would seem fully to sustain that practice, (Parks vs. Boston, 15 Pick. 210,) Mr. Chief Justice Shaw, in delivering the opinion of the court in that case,  [**17]  says, "the locating committee, and the sheriff's jury, are to make an estimation upon view, and speaking for myself, I cannot," says the Judge, "perceive why they might not, in both cases, have estimated the damages upon their own experience and judgment, without any evidence aliunde, though they might be at liberty to enlighten their own judgments by the 

 [*490]  aid of testimony." We only mean to say, that we think such a jury is not bound, as juries in ordinary civil and criminal cases are, by the weight of evidence--they may be governed greatly by the "view" which they take of the lands to be valued by them when they meet thereon, as they are not instructed upon questions of law, by a court, they may and probably often, and generally do, form and act upon their own opinions, or those of their presiding officer, as to the law, arising out of the facts before them, and in so far as they are correct in these opinions, their proceedings would be free from error; but still they are liable to err upon such points, not having, as jurors in ordinary trials always have, the aid of a court, which is peculiarly conversant with such subjects. It would occupy too much space to enter [**18]  into details to show the difference which exists between a body of men proceeding under a law of this kind, and a common law jury--they are, it is true, authorized to examine, consider and settle, so far as they constitute a part of that entire tribunal which is finally to settle them, great and important interests, and rights of property; but even in determining questions of fact, in which the decision of an ordinary jury would never be disturbed, provided it was justified by the weight of evidence, the verdict of a jury empannelled under the provisions of the statute we have been considering, would not be conclusive, although it might be found according to the weight of evidence, but would be, even on that point, open upon review by the court. Such has been the practice in this state, it is believed, and it would seem to be sustained by the phraseology of the statute itself, because although in cases of ordinary trials in courts, it might conflict with well established rules to set aside upon testimony not produced at the trial a verdict right in itself upon the evidence which was submitted to the jury who rendered it, yet in cases arising under this statute and other kindred ones,  [**19]  the introduction of new testimony to enlighten the judgment of the reviewing tribunal, and which, if it had been heard by the jury who found the inquisition, might have led their minds to a different result, 

 [*491]  would, if such testimony should materially alter the state of the controversy and the rights of the parties, be "good cause shewn against the said inquisition," and why it should not be affirmed by the court. We refer to a case already cited in this opinion, (Canal Bank of Albany vs. Mayor, &c. of Albany, 9 Wend. 254, et sequent.) in which the marked distinction existing, in many respects, between a jury such as is constituted by our canal and rail road laws, and other similar ad quod damnum statutes, and a common law jury, is pointed out somewhat at length, and, according to our judgment, very correctly and precisely. There Mr. Justice Nelson, in delivering the opinion of the supreme court of New York, in page 255, remarks, "in this case (similar in its character, somewhat, to that we are now considering) there is nothing to characterize the twelve men empannelled as a jury, but the name and mode of selection." In page 254, after stating [**20]  that he was not now disposed either to vindicate or impugn the rule rejecting the affidavits of jurors to impeach their verdicts, a rule which he admits is strict, and rarely departed from, he says, "there are cases both in our own and the English courts, in which appeals to the sense of justice of the courts, have excluded, if not overcome, the stubbornness of the rule. I admit," he says, "they are few, and do not intend to multiply them. It is enough that the rule is exclusively applicable to a common law jury, and is never applied or enforced where a body of men are substituted in their place, as in the case of arbitrations, referees, commissioners, &c. The principle applicable to a common law jury, never could be endured in those cases, and the grounds upon which it may be defended when confined to the verdict of the jury, do not exist here." He then gives a sketch of the proceedings of a common law jury--draws the distinction to which we have before alluded, between such a jury and that which is directed by statutes similar in their nature to that under which the jury in this case was empannelled--sets forth "the multiplied means of accurate information both in law and [**21]  fact," which are accessible, and of 

 [*492]  right belong to a common law jury--notices "the guards which have been cautiously and securely thrown around them to prevent extraneous influence or the knowledge of any fact except such as transpired in open court, all affording to the parties great security against error or mistake by the jury, and some foundation in reason for the policy of the rule which can exist in no other proceeding," and concludes in the emphatic language we have before transcribed, that "there is nothing to characterize the twelve men empannelled as a jury, but the name, and mode of selection." We are of the opinion that the proceedings of the jury who were empannelled in this case under the act of assembly, are not to be regarded as those of a common law jury, and therefore that the jurors who signed the inquisition, may be examined as witnesses upon all subjects whatever relating to this controversy, as fully as any other persons who might be sworn as witnesses in the cause--that they may be examined as to the grounds and motives for their finding, in order to ascertain whether in coming to their conclusions, they had not mistaken facts, as well as the law.  [**22]  
It is satisfactory to find that in the judicial district of our state, in which the learned and distinguished chief justice of Maryland resides, it has been decided in several cases, on the trial of objections to inquisitions taken before the sheriff for the condemnation of lands for the purposes of the Chesapeake and Ohio Canal Company, that jurors empannelled on the inquest may be sworn and examined as to the grounds of their inquisition, and may be permitted to give evidence of any facts and circumstances within their knowledge pertinent to the question under consideration, which others would be competent to prove. This constant and uniform practice of the judges of that district, who have had more experience upon such subjects, by reason of the many condemnations which have taken place at the instance of the Chesapeake and Ohio Canal Company, than has fallen to the lot of the members of any other judicial district in this state, would, of itself, and independent of the respect which is so justly due 

 [*493]  to the members of that learned tribunal, be regarded as adding great weight to the authorities which have been referred to, in support of the opinion which we have expressed.  [**23]  
We approach next, the question as to the conduct of the sheriff, but before we consider that, it will be necessary to dispose of a preliminary objection which was interposed in the course of the argument, by the counsel for the land proprietor. It was contended that this objection, if it was known to the counsel of the Canal Company at the time that the jury met upon the land, and it is asserted that it was within their knowledge, ought to have been taken before the jury was sworn, and in support of this position the case of Barre Turnpike Corporation vs. Appleton, 2 Pick. 430, has been relied on. There, however, it was expressly provided by the statute under which the proceeding took place, that the jury to be empannelled should be summoned by the sheriff or his deputy, or if he, or either of his deputies, were a party, or interested, that the jury should be summoned by a coroner of the county. The court in that case (page 433) put their decision upon this provision in the statute, saying that "the proceedings in the case are strictly and exclusively regulated by statute, and it is not for us to question the propriety of any of the provisions upon the subject.  [**24]  " There is no such provision in the act of assembly now under consideration, but on the contrary, no power is given to any person in that behalf but the sheriff, to whom alone is confided the duty of summoning the jury, and without some further legislative action, no one else could exercise such an authority. It would not be difficult to show that, however proper it might be under the Massachusetts statute to require such an objection to be made in limine, and before the empannelling of the jury (and we concede the correctness of the decision just referred to) such a course ought not to be exacted under the statute of Maryland, and we entertain no doubt, that if upon a review of the proceedings before this court, such a case of partiality or of prejudice, and a fortiori of corruption in the sheriff could be shewn, as would render it necessary for the 

 [*494]  advancement of justice that the court should interpose, it would not now be too late for either of the parties, if their rights were affected by the misconduct of that officer, to claim such interposition. It would be, as we think, clearly "good cause against the said inquisition," within the fair intent and meaning [**25]  of that provision of the statute which confers upon this court the authority to affirm or set aside the inquisition. But in the view which we take of this branch of the inquiry, it will be unnecessary to enlarge upon the subject further than to say, that this is an application to our discretion, and it must be treated as all applications of a similar character are now treated, according to the settled practice of the courts. On motions for new trials, not only in civil but in criminal cases, and some of them were capital, where jurors have been improperly put into the jury box, and have formed a portion of the panel which gave the verdict, the courts have refused to set aside such verdict, where there was no proof of any fraud on the part of the summoning officer, nor of collusion with any other person; and the reason is, that no injustice has been done to any body, that being the true subject of inquiry in all such cases. That a sheriff, or any other officer concerned in the administration of justice, should not only act with integrity, but should also be free from all partiality or prejudice, and wholly indifferent, is certainly demanded of him by the law, because if he were not [**26]  so, great mischief might follow, and much injustice be done. But where it is clear to the courts that there is no ground to apprehend any such result as injustice to any party the reason of the law ceases. The courts endeavour always so to apply the law, as to effectuate justice. The case of The King vs. Hunt, in 4 Barnw. & Ald. 430, S. C. 6 Sergt. & Lowb. 476, states the true rule. Mr. Justice Best, there says, "taking it to be an application to our discretion, is it shewn that any injustice has been done? The true rule is this, if the officer has not done his duty, he is to be punished for it; and if his omission has actually produced prejudice to the party, then it is in the discretion of the court to prevent injustice being done, 

 [*495]  by granting a new trial." In the case now under consideration, the proof is abundant, that even had the sheriff been partial, and prejudiced, or corrupt, no injury has in fact resulted therefrom to the Canal Company, every member of the jury who signed the inquisition, it is believed, has testified that he was never approached directly or indirectly by the sheriff, nor had any conversation with him upon the subject,  [**27]  and that his verdict was rendered free from any influence of that officer. If the sheriff had been guilty of any of the charges brought against him, he would, as we think, have been clearly liable to indictment, and if the proof taken before the court had not shewn conclusively to our minds, that not the slightest prejudice had resulted to any party by reason of the jury having been summoned and empannelled by him, we should not have felt ourselves at liberty, at least in this aspect of the case, to have concurred in an affirmance of the inquisition. It is much to be regretted that a man, who, from the proof in this cause, was one of undoubted integrity, enjoying, at all times antecedent to the period of this alleged offence, an unusual share of the confidence of his fellowcitizens, and whose character had been theretofore free from reproach, should, from any cause, whether at unguarded moments, or when probably under undue excitement, have so expressed himself, as to have subjected his official conduct to so strict a scrutiny, and in the course of a judicial proceeding. It was painful to the court, during the investigation, and it is almost equally so to be constrained now to advert [**28]  to it, as we have, from a sense of duty, briefly done. It is impossible that justice can be well administered, however pure its fountains, if its officers, and especially one of such confidential trust as a sheriff, be not incorruptible; and no tribunal can properly be silent, however sensibly it may feel the duty of noticing it, when there is the slightest apparent ground for suspicion, and the same is brought to its judicial consideration. It is, however, no more than an act of justice to the memory of the officer whose conduct has been impeached before us, to say, that however indiscreet he may 

 [*496]  have been in his expressions on some occasions, and whatever was, at the time of uttering them, the state of his feelings towards the parties to this cause inferrible from the language used by him, as proved by some of the witnesses, we feel bound from the whole evidence, to say that although his language was, at times censurable, we see nothing criminal in acts or intention, and we acquit him of all corruption, and of any reprehensible partiality or prejudice which influenced his official conduct in this case--and we are entirely satisfied, that on this score, no injustice has [**29]  been done in the finding of the inquisition.
The next objection made, is to the competency of the jurors, in many respects; that some one or more of them had formed and expressed an opinion upon the merits of this case before the jury was empannelled--that several of them were incompetent by law to act in this case, being related within the limited degrees of consanguinity or affinity to the proprietors of other lands required for the use of the Canal Company, lying in Harford county, and thereafter to be valued, in which the same question or some of the same questions would arise, and would be considered and determined in making the valuation and assessment of damages in those cases, as arose, and as were to be, and were considered and determined by the jury in this case--and that several jurors who are named in the objection, and who were summoned by the sheriff to attend on the lands to be valued in this case, were, or some one of them was, related to the said Mrs. Ann Archer, within the limited degrees, and so incompetent persons to serve as jurors in the case; and so the sheriff did not, as by the warrant to him issued he was commanded, summon a jury of eighteen inhabitants [**30]  of his county not related to the parties, nor in any manner interested, to meet on the land to be valued. We have said, in a former part of this opinion, that in the interpretation of statutes which confer powers that are to be applied to a great public object, courts ought so to construe them, as not only not to embarrass or defeat their purposes, but as far as they properly can, to facilitate, and 

 [*497]  promote the success of a great public undertaking. Now it is true that the statute we are considering, confers special powers and upon a new jurisdiction, and falls within a well established principle of law, that it must, in that behalf, be construed strictly--that these powers must be exercised according to the course prescribed by the statute. We do not think that we at all conflict with this principle, in over-ruling this objection, made, as it is, at this late stage of the proceedings. We are clearly of opinion, that should such an objection be sustained, if there would not be a failure of justice, there would be so many difficulties and embarrassments growing out of it, as would nearly, if not altogether defeat the purposes of the act of assembly. By the provision of the [**31]  statute, there is ample time allowed from the date of the warrant to the sheriff, who is directed forthwith to summon the jury, to every person having an interest in the controversy, to inform himself as to the requisite qualifications of all who are summoned as jurors, and there is no just reason, as we conceive, why a party should not avail himself of such objection, by way of challenge before a juror is sworn, as he would undoubtedly be obliged to do, in the case of a common law jury. The object of this provision of the statute is the same as the law requires in relation to a common law jury, that is to say, that the jurors shall be perfectly disinterested, impartial and free from all exception, and the rules which have been adopted as to challenges, ought, therefore, to be applicable to all juries. That it is the policy of our statutes regulating the qualifications of jurors (1715, chap. 37, and 1798, chap. 21, sec. 2) to require an objection to a juror to be made by challenge before he is sworn, is evident we think, upon their face, and that it can only be taken in that mode, is settled by a series of adjudications in England and elsewhere. (11 East. 231,  [**32]  note, "the case of a Juryman," sometimes called 12 East. Rex vs. Tremain, 16 Sergt. & Lowb. 319. 7 Cow. 478. 9 Johns. 261. 6 Wend. 389.) It is the duty of the parties interested, to make diligent inquiry as to the qualifications of jurors, if they mean to except to their 

 [*498]  competency, and they have the right to examine, on his voire dire, the juryman excepted to, or otherwise to satisfy the sheriff that such person is not properly qualified. (15 Johns. 179, Merserau vs. Norton. 6 Wend. 389, The people vs. Jewett. 11 Pick. 274, Merrill vs. Inhabitants of Berkshire. 9 Wend. 231, Roach vs. Cosine.) In one of these cases, the jury was sworn by the sheriff out of court, to assess damages where there had been judgment by default, (15 Johns. 179) and the court said, that if there be a legal and valid objection to a juror, "the sheriff may set aside the juror against whom the objection is made, and summon another, or if he should refuse to do so, it would be ground for an application to set aside the inquisition." In another, (11 Pick. 274,) [**33]  which was a proceeding under statutes authorizing the condemnation of lands for a highway, and, of course, similar, in some respects, to the case now before us, the supreme court of Massachusetts say, "it is the duty of the officer (sheriff) not only to summon the jury, but to preside at the trial, to decide upon challenges and excuses of jurors, and to determine the competency of witnesses, the admissibility of evidence, and other incidental questions arising in the course of the trial." And in another (9 Wend. 228, 231, Roach vs. Cosine) where there was a proceeding under a statute regulating summary proceedings to recover the possession of land, and where the justice who issued a venire for the summoning of a jury, issued a second venire because of a sufficient number of jurors not appearing at the return thereof, although it was objected by one of the parties that he had no authority to do so, and where he subsequently, there still being a default of jurors, issued a third and fourth venire, on the return of which, the jurors appearing, they were empannelled, the supreme court of New York say, (page 231,) "the officer must necessarily have [**34]  the power of renewing the venire until a jury appears, otherwise there would be a failure of justice. It is a power incident to that of conducting an inquiry by means of a jury." So that, in this respect, the law is the same as to all juries, the reason of the law being, in all such cases, the same. We 

 [*499]  entertain no doubt that all these objections to the jury which was empannelled in this case, come too late; not having been taken by way of challenge, they cannot now be allowed, and ought to be over-ruled. In support of this opinion, see the following cases: Ramadge vs. Ryan, 9 Bing. 333. S. C. 23 Serg. & Lowb. 296. Jeffries vs. Randall, 14 Mass. 205. Rex vs. Sutton, et al, 8 Barnw. & Cross 417. S. C. 15 Serg. & Lowb. 253. Amherst vs. Hadley, 1 Pick. 38, 43. Mima Queen and child vs. Hepburn, 7 Cranch 290. Hollingsworth vs. Duane, 4 Dale. 353. Onions vs. Naigh, 7 Price's Exchq. Rep. 203. 7 Law Lib. 161. 6 Greenleaf 307, 329, McClellan & Crofton. 3 Greenleaf 215, Walker vs. Green.
It is further objected, that illegal and improper evidence was [**35]  given to the jury, on the part of the land proprietor in this case, and which the said company, as it is alleged, had no means or power to prevent, and that the jury were misdirected and misled, in matters of law, by statements and assertions of the counsel of the proprietor and others, as to the rights of said proprietor, and as to the duty of the jury in the premises, and as to the rights, obligations, privileges and franchises of the Canal Company, and that these statements and assertions, although erroneous and unfounded, were accredited, believed and acted upon by the jury, or by some of the jurors, and which statements and assertions, the Canal Company had no adequate means to countervail or correct before the jury. That unjust and improper means were used, to influence the jury to give high and excessive damages against the Canal Company, such as creating the belief and impression that all jurors, who were not in favour of high damages, were unfriendly to the land-owners, and thereby inducing the jury to believe, that if they did not give high damages, the land-owners would regard them as personal enemies; and also creating the belief and impression among the jury,  [**36]  that they would be regarded as illiberal and ungenerous, and be subjected to the odium of their neighbours, if they did not give good damages, and that it was also stated 

 [*500]  to the jury that they ought to take care of the people; that a corporation of foreigners were taking their lands against their wishes and consent, and ought to be made to pay for it--and that the jury were urged by persons acting for, and on behalf of the land-holders, to give high damages on the ground that the said corporation had a right to appeal, and would exercise it, and that the jury, in their valuation and assessment of damages, took into consideration as a ground of damage, that the Canal Company had, at that time, such right to appeal, and a further right to remove said appeal for trial to Baltimore county court, and acted upon the assumption that said company would exercise those rights, and thereby subject the said proprietor to the grievance and inconvenience of attending upon the courts, and to the loss of time and expense of attending in Baltimore city, in person, and with her witnesses, and to the apprehended large and onerous charges to which, it was surmised, she would be subjected [**37]  in the retainer and employment of counsel to maintain and vindicate her rights, as well in Baltimore county court, as in the court of Appeals, if the case should eventually be carried thither; and that the jury were told by the counsel of the land-holders, that they had no right to take into consideration, in fixing the amount of damages, any advantages which the canal might be to the land-holder.
In relation to almost all these objections, it is sufficient to say that no evidence having been adduced in support of them, so far as we have any recollection, or as derivable from our notes of the testimony, they fall to the ground, of course. As respects any misdirection in matters of law, or misconception of the jury upon that point, or as to the admission of illegal and improper evidence, it may be fit to advert to that portion of this objection, and we shall do so when the question as to the allowance of excessive damages in this case, comes to be considered in its due order. In relation to all other portions of this objection, we consider them as not tenable, because unsupported by evidence--indeed they were not, as we think, much, if at all relied on, in the argument.

 [*501]   [**38]  It is further objected that the inquisition does not appear to have been, and in fact is not, signed by the said sheriff, before whom it purports to have been taken; whereas, by the express directions of law, as it is contended, the inquisition ought to have been signed by the said sheriff and some twelve or more of the jury. And it is also objected, that in his return of said inquisition to the clerk of Harford county court, it is not set forth or stated, that the said inquisition so taken before him, was signed by him, the said sheriff. These objections are founded upon the well known and admitted principle, that proceedings before a tribunal of limited jurisdiction, or under requisitions particularly described by a statute, must appear on the face of the record of such proceedings, to have been strictly complied with. It is contended that the record does not show the fact of the signing of the inquisition by the sheriff, either upon that instrument itself, or by the return of that officer filed among the proceedings. It cannot be doubted, that this signing by the sheriff, if it be such an one as is within the meaning of the law, might have been made, with more accuracy, and [**39]  it would be well, in all such cases, to avoid difficulty as to matter apparently of form only, but often of substance, by following the precedents set forth in the books. Let us, however, examine, whether in a case of this kind, requiring as it does, all the strictness of construction which would be applied even to the summary proceedings under our attachment laws, the form prescribed by the statute has not been complied with. In Shivers vs. Wilson, 5 H. & J. 130, which was a proceeding under these laws, and one of a series of cases in the court of Appeals of our own state establishing much rigour in relation to the necessity of adhering strictly to form, the late Chancellor Johnson, then a judge of that court, says, in delivering its opinion, "no principle of law is more evident, than that where the tribunal is of a limited jurisdiction, or the proceedings are particularly described by a statute made on the subject, that course of procedure so described by a statute made on the subject, that course of procedure so described, must on the face of the record, appear to have been, if not literally, at least 

 [*502]  substantially, complied with." Now in order [**40]  to determine whether the meaning and object of the statute has been gratified, we must first ascertain what is that meaning, as was done in the case of Higdon vs. Thomas, 1 H. & G. 139, in which the same court decided that under the fourth and fifth sections of the statute of frauds, (which sections, they say, are, as it respects "signing," substantially the same) a technical authentication by signature, is not necessary, but that if the name of the party appears in the memorandum of a contract, and is applicable to the whole substance of the writing, and is put there by him, or by his authority, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom, forms not being regarded, provided the statute is satisfied. And in the State use Williamson vs. Levy, 3 H. & McH. 591, where a commission had been issued to take testimony, and the commissioners who signed their names to the return of the commission with the accompanying depositions, had neglected to put their seals, and an objection being taken that it did not appear from the face of any of the proceedings, that the seals of the commissioners [**41]  were affixed to any part of the commission or its enclosure, the general court held, and the decision was afterwards affirmed by the court of Appeals, that the commission being enclosed in a cover directed to the judges of the general court, with the names of the acting commissioners written by themselves on the said cover, and their seals annexed to their names respectively, and having been delivered in a legal and proper manner to one of the clerks of the general court, the testimony taken under it, was properly allowed to go to the jury. It is scarcely necessary to remark, that in cases of this nature, great strictness and accuracy are required, and yet that was held to be a sufficient sealing by the commissioners, within the meaning of the mandate of the court which required the commission to be returned under their hands and seals, it being substantially a sealing.
The object of the statute before us, in requiring the sheriff 

 [*503]  to sign the inquisition was, that his name should give authenticity to the whole instrument, because, in directing that it should be signed by him, "and some twelve or more of the jury," it certainly was not intended that his [**42]  concurrence with them in the finding of the inquisition, was necessary to give it validity. The signatures of the jury who were sworn to assess the damages, made it effectual as to the finding, and the signing and return by the sheriff of the instrument containing that finding, was only necessary to give such authenticity to it as the statute required. If we test the meaning of the word "signed," as applicable to the jurors who found the inquisition, by putting the case of a juryman's name being signed by another person by his authority, in consequence of his being rendered unable to sign the inquisition himself, by reason of some physical disability occurring during the trial, subsequently to his being sworn, and before the rendition of the verdict in which he had concurred, it would be difficult to assert, either in reason, or in the face of decisions in analagous cases, that such was not a signing, within the intent of the law. Besides, no particular day, or time, is prescribed by the statute, at which the jury and the sheriff, are to sign, and although the practice, and a proper one it is certainly, has been, for the jury to sign at the time of the finding, yet the law being silent [**43]  on the subject, it might be contended, with some show of reason at least, that the signatures might be put on any day before the actual return of the paper, or inquisition, to the clerk of the county. Suppose the sheriff had written upon the inquisition, or paper containing it, immediately under the names of the jurors who signed it, a certificate that it was taken before him, reduced to writing and signed by the jurors in his presence, and had signed his name to such certificate, could it be reasonably said that the sheriff had not "signed" the Inquisition?--Suppose he had simply written underneath, or opposite to the names of the jurors, or any where upon the inquisition, the words "taken before, and certified by me, John Carsins, sheriff of Harford county," it would be difficult to contend that such would not be a signing 

 [*504]  by that officer, within the import of the statute. If he had done no more than to write his name as sheriff on the paper containing the inquisition, that, as it seems to us, would have been sufficient. If this objection be a valid one, then indeed cases might arise, in which inconveniences would ensue that could not have been contemplated by [**44]  the legislature when they enacted, as it is contended they did, that no inquisition should be valid which was not signed by the sheriff and so returned. Suppose that after all the jurors had signed it, and the sheriff also, that officer had refused to return it to the county clerk, would the court in such a case, "direct another inquisition to be taken," because that which was taken, had not been "returned to such court within a reasonable time," or would they not rather compel its return. Or suppose the sheriff, in the case now under consideration, was at this time alive, and willing, or not willing, to sign the inquisition, we think it would be in the power of the court, as they often do in cases of defective returns of property attached by the sheriff under our summary attachment laws, to take in the one case or to compel in the other his signature, nunc pro tunc, if that were necessary for the purpose of giving to the inquisition, the authenticity required by the statute. It is only left to state the facts, as they exist in this case, and it must we think be quite clear, that the sheriff has "signed" the inquisition, so far as the law demanded it of him. The sheriff files [**45]  with the clerk of his county in due time, two papers--the first containing the warrant of the justice who directed him to summon the jury, and his own certificate under his hand and seal as sheriff of his county, that in pursuance of that warrant he had summoned certain persons whose names are set out at length, as eighteen jurors, qualified by law, &c. &c. (in the words of the statute) and that the said jury did reduce their inquisition to writing, and sign and seal the name in due form of law, as by the said inquisition thereto annexed as part of that his return will appear, and concluding with these words, "wherefore I hereby return the said inquisition to the clerk of Harford county court as directed by the act of assembly 

 [*505]  in such case made and provided, witness my hand and seal, John Carsins, sheriff of Harford county, [Seal.]"--The other paper filed at the same time, with and constituting part of the first mentioned, purports to be "an inquisition taken, &c. before John Carsins, sheriff of Harford county, on the oaths of," &c. (as in the words of the statute) which is signed and sealed by twelve of the jurors, and under their names and immediately following them,  [**46]  and on the same paper containing them and the whole inquisition, is the following concluding sentence, viz: "I do hereby certify and return to the clerk of Harford county court, the aforesaid inquisition taken before me, on the oaths of the jurors above named, as herein set forth and reduced to writing, and signed and sealed by the said jurors in my presence, in conformity to the directions of the act of assembly in such case made and provided, John Carsins, sheriff of Harford county." In the appropriate language of the learned judge who delivered the opinion of the court of Appeals in the case of Higdon vs. Thomas, 1 H. & G. 139, 155, it would be "a refinement upon subtilty, a total sacrifice of substance to form," were we not to say that in our judgments, "the signature is complete, the objects of the statute have been accomplished," and the inquisition "is available," so far, at least, as concerns this objection.
It is further contended that there is another fatal error in the proceedings before the sheriff, because the inquisition does not appear or purport to have been taken by said sheriff in virtue of a warrant of a justice of the peace of Harford county,  [**47]  to him directed; nor does it appear in and by said inquisition, that the particular jurors, on whose oaths the same imports to have been taken, and by whom the same is signed and sealed, were, or that any one or more of them was or were, parcel of a number of eighteen jurors, inhabitants of said county, summoned by said sheriff to meet on the said land to be valued; nor does it appear, therein or thereby, that the said sheriff summoned a jury of eighteen inhabitants of said county, not related to the parties, nor in any manner interested to meet on the said land to be valued, on the said 

 [*506]  day of the taking of the said inquisition, or on any other day.
It is a sufficient answer to say, that there seems to be nothing in the statute, requiring that the inquisition should set forth, contain, or purport, any of those matters; and besides, in the view which we have taken, that all papers returned by the sheriff to the clerk, are to be regarded as one whole, each constituting a part of the other, and to be construed together, as a record of the proceedings, it does appear that all these facts are distinctly set forth upon its face.
Of a like character is the objection that "although [**48]  it is set forth and stated by the said sheriff in his return of said inquisition, that he instructed the jurors in the valuation and assessment of damages, to consider in determining and fixing the amount thereof, the actual benefit which would accrue to the said owner from conducting the said canal through, or erecting any of said works upon his land, and to regulate their verdict thereby, except that no assessment should require any such owner to pay or contribute any thing to the said company, when such benefit should exceed, in the estimate of the jury, the value and damages ascertained as aforesaid, yet in truth and in fact, the said sheriff did not so instruct the said jury, nor to such or the like effect, as, by law, he was bound to do, and ought to have done.
The evidence offered at the trial, if any such was given, is not sufficient to invalidate the declaration of the sheriff, made upon his official responsibility and oath; and the assertion, in the same solemn manner, of all the jurors, contained in the body of the inquisition to which their signatures are appended, that in fixing the amount of their valuation and assessment of damages, they did consider the actual benefit [**49]  which would accrue to the landholder, is greatly corroborative of the declaration of the sheriff. There is no positive injunction in the act of assembly, making it the duty of the sheriff particularly, to give this instruction to the jury, the words of the law being that "the jury shall be and they are hereby instructed to consider, &c." which would seem to imply that the legislature 

 [*507]  meant that the statute itself should be before them during their deliberations, but it is, perhaps, the safer course for that officer to follow the practice which has been introduced, by giving the instruction to the jury.
Objections have also been taken to the form of the oath which was administered to the jury, and to the mode in which it was administered, because, although the inquisition purports to have been taken on the oaths of the jurors therein named, yet it does not appear, nor is it therein stated, that the sheriff administered an oath or affirmation to every juryman who appeared; of such tenor, of such import, or in such terms, as prescribed by the charter of said company; and because it appears on the face of the inquisition, that the sheriff administered to the several jurors, [**50]  on whose oaths the said inquisition purports to have been taken, an oath or affirmation, in terms, and in substance and form, variant and different from the oath or affirmation prescribed and required by the charter of said company; and further, because in his return of said inquisition to the clerk of Harford county court, the said sheriff certifies and returns, that he administered to the several jurors, on whose oaths said inquisition purports to have been taken, an oath or affirmation, in terms, and in substance and form, variant and different from the oath or affirmation prescribed in the charter of said company.
In relation to the failure of the inquisition to state that the sheriff administered an oath to every juryman who appeared, it does seem to us, that the act of assembly demands it. The return of the sheriff, after setting out the names of the eighteen jurors summoned, states that "the following persons being fourteen of the jurors aforesaid appeared, to wit:" and then inserts their names. This paper, as we said before, is a part of the record of the proceedings, and the fact that he administered an oath to every juryman who appeared, is sufficiently apparent on its face.  [**51]  As regards the form of the oath, which was actually taken by the jury, it is admitted that although the sheriff administered it in the words of the warrant issued by the justice, and as he was thereby commanded 

 [*508]  to do, that is to say, that each juror would "justly and impartially value the land," &c. yet as he omitted to add the word "faithfully," which is contained in the section of that particular statute, it is an error fatal to the whole proceeding. It would, indeed, be a matter of regret, if even under a law, which it is conceded requires a strict construction, a court was so bound down by authority as to be allowed the exercise of no discretion, and to be obliged to sustain such an objection. But fortunately there are cases adjudicated by the highest authority in our own state, which place law and reason where they ought always to be found, side by side. We have already had occasion to quote the language of that court, in the case of Shivers vs. Wilson, 5 H. & J. 130, where it was held that it was sufficient, if the course of proceeding directed by law has been substantially complied with. In Thompson vs. Towson, 1 H. & McH. 504, [**52]  a proceeding under the attachment laws, and in which the words "bona fide" were omitted, the act of assembly requiring that the oath should state that the absconding debtor was "really and bona fide indebted," the counsel who argued successfully the motion to quash the attachment, upon the ground of such omission, only contended (page 507) "that the substance of bona fide must be expressed,"--that "the term bona fide, or what is intended by the term, and what it necessarily conveys and implies, must be contained in the oath,"--but, had the oath in substance contained all that was meant by the words "bona fide," it would have been sufficient, even under the strictness of construction uniformly applied to the attachment laws of this state. And in Winingder vs. Diffenderffer, 5 H. & J. 181, which was a case where there was an omission of a word in an oath, the form of which was prescribed by an act of assembly, being an act for the relief of insolvent debtors, the court determined that as the omission "did not change the meaning of the oath, did not materially vary the oath," prescribed by the statute, it was sufficiently well administered. We [**53]  cannot but think that the obligation of an oath taken by a juror that he will justly and impartially 

 [*509]  value land, is as perfect as if the word "faithfully" were superadded to them, and inserted in its body.
The objection next to be noticed, is founded upon a supposed failure on the part of the jury to find and declare upon the face of their inquisition, that certain persons, other than the particular land proprietor in this case, were owners of said land, or of some interest or estate therein, and that consequently, they are not bound thereby. It is in proof, and indeed not controverted, that a certain Joseph C. Parker and Robert Stephenson had an outstanding interest or term for years, in a portion of the land condemned, and it is asserted that in the valuation and assessment of damages, the jury took into consideration, and allowed damages for the actual or supposed injury sustained by Messrs. Parker and Stephenson, in consequence of the cutting the canal through the land to be valued, and included the damages so allowed for the actual or supposed injury sustained by these gentlemen, in the amount of damages allowed Mrs. Archer, the declared and ascertained owner [**54]  of the parcel of land by them valued, or intended to be valued. The term "owner" used in the 13th section of the act of 1825, ch. 180, is evidently intended to include every one having any title to, or interest in the land, because it is there provided that the valuation of the jury "shall be conclusive upon all persons, and shall be paid by the president and directors of the Canal Company to the owner of the land, or his legal representatives, and on payment thereof, the said company shall be seized of such land as of an absolute estate in perpetuity as if conveyed by the owner." In Ellis vs. Welch, 6 Mass. 246, recognized in Parks vs. Boston, 15 Pick. 203, this point was so settled. In this last case the court say, "it has been heretofore decided by this court, and apparently upon much consideration, in the case of Ellis vs. Welch, ubi sup., that the term "owner," in this statute, includes every person having an interest in real estate capable of being damnified by the laying out of a street through or over it, and is equivalent to the description of "any person damaged in his property" as used in the 

 [*510]  general act regulating [**55]  the laying out of highways. In the same case it is remarked by the court, after saying that in the valuing a piece of land there may be several entirely distinct interests therein, that "such compensation, therefore, must be apportioned among them, according to the relative magnitude, and value of their respective interest; and, of course, there must be a separate inquiry and a separate award of damages, upon the complaint and application of each," id. ibid. 203, 204. It is true that in both these cases, the interest of the lessee was held under a deed, in one of them for three years, and in the other for a term of five years, but we cannot perceive that this would alter the principle. In ex parte Janings, 6 Cow. 525, in which was involved a claim for damages by persons having a right in the flow of water, it is said by the court, "whatever interest the claimant of damages may have, he is to be paid for." Again, they remark, (in page 526) "that although the statute says, (as does the Maryland act also) that this acquisition obtained by the appraisal of the jury, or assessors, shall be in fee simple," yet the individual claimant, though he "may have [**56]  only a limited interest, a particular estate for instance, or a right merely equitable, the reversion or legal estate residing elsewhere," he shall be compensated. As there are some observations made in the same case by that court, not only relating to the particular point we are now discussing, but which have a bearing also upon another question yet to be considered, we here insert them. The court observe, (id. page 526,) "the question as to the extent and value of interest, is one for the appraisors (jury) and respects the amount of damages, and the persons to whom they are to be paid. We see no more difficulty in describing and entering in a book, the various interests which different persons may have, in the flow of water, whether immediate, reversionary, legal or equitable, than in designating the like interests in land. It cannot be allowed, because the estate is less than a fee, or because it is merely incidental to or issuing out of land, that therefore the owner should be divested of his right without compensation." 

 [*511]  In relation to the objection now under review, we would remark in conclusion of this part of the inquiry, that although it [**57]  would, in our judgment, have been the safer course to have inserted in the proceedings the names of all the parties claiming title to, or having any interest in, the land sought to be condemned, and to have had an inquiry and apportionment of damages as to each, yet it has been decided by this court in the case of the Philadelphia, Wilmington and Baltimore Rail Road Company vs. Sappington, who was in possession of the lands condemned, and was only an owner for life, the property being condemned as fee simple, and as belonging to him absolutely, that this was no ground for setting aside the inquisition, because a court of equity would, upon application, apportion the amount allowed by the inquisition among the parties entitled as owners; and further, in the case now under consideration we think, that upon the evidence it was sufficiently shewn, that the course pursued by the jury in finding their inquisition as they did, that is to say by giving to the fee simple owner the whole amount of the valuation of the absolute estate in perpetuity, and accompanying it with an endorsement thereon of their estimate of the value of the term for years of the tenants (Parker and Stevenson) was [**58]  adopted by consent of the parties litigant, and it is clear to our minds, that if the tenants were present at the hearing, and acknowledged to be so, as was the effect of such consent, the case of Griffith vs. Jarrett, 7 H. & J. 70, 73, is decisive of the point that the endorsement forms part of the award, and that the two papers taken together would make a valid and available inquisition in favour of those gentlemen, were it not for other considerations which will appear in the sequel of this opinion. In the language of the learned judge who delivered the judgment of the court in the case last referred to, the endorsement "is signed by all the referees (jurors) who signed the award (inquisition) and was, no doubt, intended to be a part thereof; and no reason is perceived, in point of law, why it should not have that effect. Ascribing to it this faculty of explaining the scope and operation 

 [*512]  of the award, (inquisition,) it manifestly results, as a necessary legal consequence, that the award (inquisition) is binding upon the parties," unless it be defective in particulars other than those set forth in this objection, of which defect we shall hereafter speak.  [**59]  
As to the objection that this court has no rightful jurisdiction, nor any power or authority by law, to affirm the said inquisition, because that after the same was taken and returned, the Canal Company prayed an appeal therefrom, which appeal was afterwards, in due course, ordered by this court to be removed and transmitted for trial to Baltimore county court, and which was, in pursuance of said order, removed and transmitted accordingly, it is not necessary to do more than to over-rule it, the counsel of the Canal Company having stated at the last hearing, and it being manifest, that the objection was merely filed to enable them to bring it to the consideration of this court for a decision without argument, as it had been heretofore decided by Baltimore county court, and their object being to have the benefit of a review of one or the other of those decisions, as might be by them deemed most advisable.
The next objection interposed by the Canal Company, which we shall consider, is in the following words, "because the circumstances and relative situation in which the said company and the said proprietor are now placed and stand, are materially varied and changed from [**60]  what they were at the time the said inquisition was taken; in this, to wit: that at the time of the taking of the said inquisition, the act of assembly passed at December session, 1837, chap. 171, entitled "a supplement to the charter of the Tide Water Canal Company," was in full force and operation, and the then counsel of the Canal Company who attended on behalf of the company at the taking of the said inquisition, knowing and believing that excessive damages would be allowed by the said jury, did not deem it essential to adduce before said jury, all such facts and arguments as might, and under different circumstances would have been adduced on behalf of the 

 [*513]  company, before the said jury; but the said counsel relied upon the right of appeal secured to the said company by said act, as an effectual and certain mode by which the said company might correct the errors, and repair the injustice, which the said jury might commit either from prejudice against the company, from partiality towards the proprietor, from the admission of improper evidence, from misrepresentations of any kind, or from misapprehension of the rules of law--whereas by reason of the repeal of said [**61]  act, at the last session of the general assembly, the right of appeal so relied upon, has now been taken away from said company. By reason whereof, as the said company alleges and insists, the said inquisition was obtained by surprise, and ought not to be affirmed."
By the act of 1835, chap. 327, which was a supplement to the charter of the Baltimore and Port Deposite Rail Road Company, it was enacted by the second section, that certain commissioners therein named, should decide what damages would be sustained by persons owning lands on Gunpowder river or Bush river, by reason of the construction of any bridge erected, or which might be erected by the said company, across either of said rivers, and should return their proceedings to the clerk of the county, and that either party interested might file a petition to the county court, appealing from, and praying a review of, the decision and assessment of damages, made by said commissioners, and that the court should proceed thereupon itself to inquire and determine upon said claim of damages, or at the request of either party, should order and have a jury trial in the premises, and that the said claim should there be proceeded with  [**62]   anew as if no decision by commissioners had been made, and in all other respects as was lawful and usual in jury trials generally in said court, and the jury as in such jury trials being subject to the direction of the court on all points of law. And by the third section, it was enacted, that either party should have the same privilege of removing the case of such appeal for trial to an adjoining county, as is now allowed in civil cases in county courts, and 

 [*514]  upon the same conditions. By the act of 1837, chap. 171, entitled a supplement to the charter of the Tide Water Canal Company, it was enacted that the right of appeal and removal, and course of procedure consequent thereon, secured to the Baltimore and Port Deposite Rail Road Company by the above act of 1835, chap. 327, should be extended and secured to the Tide Water Canal Company, upon the finding and return of any inquisition taken under its charter, or affecting the construction or reparation of said canal--in virtue of the privilege conferred by this last act, the Tide Water Canal Company removed the proceedings in this cause from Harford to Baltimore county court, but the proceedings themselves [**63]  before the sheriff and jury who found this inquisition, were had after the passage of the last mentioned statute, whilst the same was in full force, but before the order for removal to Baltimore. By the act of December session, 1838, chap. 376, the law of 1837, chap. 171, was repealed, and the cause was remanded to Harford county court. This court has already decided that no such vested rights were acquired by the Canal Company under the act which was repealed, as would render invalid, by reason of its unconstitutionality in attempting to impair such rights, the repealing act; but we entertain no doubt that the counsel, in conducting the inquiry before the jury when the first act was in full force, had a right to look to the privileges conferred by it, and if in their judgment, and upon their professional responsibility, they deemed it proper, and as best calculated to subserve the interests of their client, mainly to rely upon their right to have a jury trial under the direction of a court as provided by that act, and to bring before that tribunal the claim for damages set up by the landholder in this case, in order that the same might be proceeded with anew, as if no inquisition [**64]  had been taken, we cannot perceive that this court is authorized to say that there was, on the part of counsel, laches in so doing, or in their omitting, under such circumstances, to offer testimony to the jury of inquiry. The law then in existence, gave them the right so to conduct the inquiry, and although there has since 

 [*515]  been an alteration of the forum, and a modification of the remedy, it would not be, as we conceive, an exercise of sound discretion, because it might be productive of injustice to one of the parties, were we now to say, that as the Canal Company did not examine before the jury all the evidence which it was then in their power to procure, they shall now be debarred from offering any, and that in the very face of an act of the legislature, under which they had the right to submit their whole case to the court to which an appeal was allowed, and which was to proceed on the hearing of that appeal, de novo, and in the same manner as if no inquisition had ever been found. The familiar case of an appeal from the judgment of a justice of the peace to a county court will sufficiently illustrate this doctrine, and we here rest it by saying [**65]  that there is reason, as it seems to us, in this objection of the Canal Company, and that even if it had not, in all cases of inquisitions, taken under these statutes, been the practice of the courts to proceed, de novo, the grounds upon which this objection is placed, would call for such a course, under the circumstances of this case.
The objections next in order are the following, viz: that the jury, in and by the said inquisition, have not described and ascertained the bounds of the land by them valued, and have not given any sufficient or locatable description of the same; whereas, by the express directions of law, the jury are directed to ascertain and describe the bounds of the land by them valued--also, because the warrant, returned with the said inquisition, and under the authority of which the said sheriff in returning said inquisition, professes to have acted in holding the same, does not specify or describe, with sufficient certainty, the land to be valued by the jury, which the said sheriff was thereby commanded to summon--and further, because, in his return of said inquisition, it is not stated or certified by the said sheriff, that the jury ascertained the bounds [**66]  of the land by them valued, and the quantity and duration of the interest and estate in the same, required by the said company for its use.

 [*516]  In submitting our views upon this and upon almost all of the preceding objections, we have been induced to do so, mainly because of the multiplicity and novelty of the questions which have been brought before the court, and many of which might again arise, should this case return here from a second jury, and which probably will arise, in some of the cases now depending, and awaiting this decision. It was due also to the able and elaborate argument of the respective counsel who have expended so much labour in their endeavours to enlighten the mind of the court, that they should have something to guide them in the future progress of cases of a novel and even complex character. For the same reason, we will take occasion briefly to intimate our opinion on the point of inquiry now about to be considered. It is objected by the Canal Company, that the description of the lands contained in the inquisition, is not sufficiently certain, to enable the party to make a true location of them, and that if there be enough of certainty in that [**67]  respect, still the jury has not complied with the mandate of the law, which requires them, in their inquisition, "to describe and ascertain the bounds of the land by them valued." It would extend too much our remarks, already occupying a space far greater than was intended, were we to review the many authorities which were cited and commented upon, by the respective counsel on both sides, with singular ability, not only in reference to the degree of certainty in the description of lands, required in deeds of conveyance, and in the returns of sheriffs as to real estate sold by them under process of law, in all which cases the law is well settled (Blessing vs. House, 3 G. & J. 290; Hammond vs. Norris, 2 H. & J. 130; Thomas vs. Turvey, 1 H. & G. 435; Clarke vs. Belmear, 1 G. & J. 443); but also in cases of deeds under powers--in cases of awards, where all the necessary circumstances must appear to have been performed--in the analogous cases of extent under an elegit--and of assessment of dower--and in partition. We shall, therefore, content ourselves with observing, that it is clear to us at least, that the object [**68]  of the legislature being to substitute 

 [*517]  for the benefit of the Canal Company, a title to be acquired by inquisition of a jury, instead of by a deed of conveyance, from the owner of the land who would not consent to convey, and to make the former the muniment of such title, instead of the latter, which was the usual one in case of a purchase, no greater certainty could have been intended in the one, than what was necessary in the other, and that in using the expressions "bounds of the land by them valued," nothing more was meant than that there should be a sufficient description of the property to enable the party to make a true location of it, and that it was not necessary to ascertain it by metes and "bounds," eo nomine. We think it also equally clear, that either in the case of a deed of conveyance, or of an inquisition in the nature of an ad quad damnum, matters in pais may be resorted to, in order to get at the true location. It is said in Jackson vs. Ambler, 14 Johns. 109, by Mr. Justice Spencer, in delivering the opinion of the supreme court of New York, that "no lands can be conveyed by any possible mode of expression, dispensing [**69]  with the necessity of parol proof to locate it." All that is required in any such case, is, "certainty to a common intent," and that is accomplished where there are objects called for, which can be certainly ascertained, and when so ascertained, will enable us to fulfil the intent, and get at the real thing conveyed. Id certum est, quod certum reddi potest. But the more serious part of this inquiry is this, are these lands, as described by the jury in their inquisition, "locatable," to adopt an appropriate word which is used by the court of Appeals in Blessing vs. House, ubi sup? In other words, are there "any metes or bounds, or other description, by which its location could be established," or which "would enable him (the sheriff) to make a location of them?" (Fenwick vs. Floyd, 1 H. & G. 172.) Is there, in the language of another adjudication "sufficient certainty to enable the party to make a true location of them?" (Clarke vs. Belmear, 1 G. & J. 443, ub. sup.) Feeling the full force of the remark of the learned judge who delivered the opinion of the court in the case referred to, at 

 [*518]  the argument (8 G. & J. 359, [**70]  Marshall vs. Greenfield) and disposed as well as bound to bow to its authority, and making "every reasonable intendment to effectuate the object" which the jury had in view, and regarding the case before us as if it were a judicial sale, and thus within the scope of that decision, we incline to the opinion that the description of the land as set forth in the inquisition is "so entirely vague as to make it uncertain what was intended," and that if this were the case of "grantee against grantor," the property would not pass. In almost all the cases which have been referred to, as supporting the sufficiency of the description as given by the inquisition in the case now before us, either the commencement and termination, and the courses and distances were given, or a plat or diagram accompanied the description and made part of, or was referred to by it, so that the actual location could, at any time, be readily ascertained, (11 Pick. 274, Merrill vs. Inhabs. Berkshire. 14 Johns. 96, 107, Jackson vs. Ambler. 27 Mass. 211, Davis vs. Rainsford.) In the description of the lands which are the subject of the present controversy, there are,  [**71]  as it seems to us, several points of ambiguity, not susceptible of explanation by any parol proof which could be legally received; but that which is, in our judgment, fatal, relates to the places of commencement of the first line of each parcel. The description is, for one parcel, "beginning at the lands of Herman Stump, and running thence down the canal and parallel thereto," &c.; and for the second parcel, "beginning at the lands of the heirs and devisees of James Stephenson, and running," &c. There is no stake, stone, or other natural boundary or monument referred to as designating the spot at which the starting point on Mr. Stump's land is situate, nor any plan, plat or diagram referred to in the description, which might explain the actual place of beginning. The same remark may be made in relation to the commencement of the first line of the second parcel of land, beginning at the lands of the heirs and devisees of Mr. Stephenson. It was contended that this ambiguity as to the place of beginning, might 

 [*519]  be explained, by oral proof, to the officer who might be called to lay off the land, that it was at that point of Stump's lands where the canal first touched.  [**72]  In the language of the learned judge who delivered the opinion of the court in Thomas vs. Turvey, 1 H. & G. 435, 9, ub. sup. we think "the ambiguity on the face of the conveyance (inquisition) could not be explained by extrinsic circumstances," there being no point of beginning mentioned in the description, and no diagram to shew it; so that the place of commencement being uncertain, we could not surmount the difficulty on that score, even by giving to the case of Makepeace vs. Bancroft, 12 Mass. 469, all the authority which is claimed for it, and allowing as valid in a description of land a reference for its boundary to a monument not actually at the time existing, and not even stated to be staked out, (the then intended canal,) but afterwards made and completed, the parties always meaning to conform, and actually conforming to the description. No such difficulty could now arise, as it is understood that the whole canal is completed along this land, and that the company is in possession of all that they require under the act of assembly. The description which is at least somewhat doubtful as to its certainty could, therefore, now be made, in any [**73]  future proceeding, with sufficient accuracy, and indeed with perfect certainty.
We do not think, that in a case of a proceeding of this kind, this court has jurisdiction to correct the description in the inquisition, except by consent of parties. It is not like the case of a special verdict, which being returned by a common law jury attending at court, may, in some cases, be corrected. The jury is, in this case, functus officio, and the members composing it not having been our officers, or under our control, we cannot correct their act. Nor is it like a sheriff's return of property seized under the attachment laws, where we can, once having obtained jurisdiction, require him as our officer, to correct his return, if defective, according to the facts as they exist. Nor do we think that the tender of a deed which has been made by the proprietor, correcting the 

 [*520]  error in the description, and offered to be delivered conditionally, but refused to be accepted by the other party, can alter the case, (Rail Road Company vs. Bucher, 7 Watts 33, 35.) And we are not prepared to say, looking at the peculiar nature of this proceeding, and the limited power and control [**74]  of this court over it, that it does not lie in the mouth of either of the parties, even of the Canal Company itself, whose agent furnished to the jury, as it is alleged, the defective description, to take advantage of such defect. If a plaintiff in a case under our attachment laws were to obtain a condemnation, and had levied upon the lands seized by his order under a defective proceeding liable to be quashed on that ground, on motion by subsequent creditors who had attached regularly, we are not prepared to say, in the absence of all authority upon the point, that his own irregular proceeding might not, on his own motion, be set aside by order of court, in order to enable him to issue a new writ, whereby he might obtain satisfaction of his debt, which would, on his first action or process, be certainly lost. To deny him such a privilege, at least in a case where there was no fraud in his previous proceeding, might operate great injury to him. And we can see no reason why the Canal Company itself, may not, in a case in which the description it has inadvertently furnished to the jury, is found upon more mature consideration, to be defective, object to the affirmance of the inquisition. [**75]  It is at least a case of doubt, and we are not satisfied with the description of the lands taken, as set forth in the inquisition, and think there is ground for the objection in this behalf interposed by the Canal Company, (Commonwealth vs. Fisher, et al, 1 Penna. Rep. 466.) It would be advisable, and certainly more safe, that the objections, as well to the inquisition itself, as to the return and warrant, should be obviated, as far as may be practicable, in any future proceeding
It is further asserted and urged, by way of objection, on the part of the Canal Company, to the affirmance of this inquisition, that the jury or some of the jurors, in their valuation and assessment of damages in this case, from misapprehension 

 [*521]  of their duty in the premises, did not act upon their own conclusions, according to the best of their skill and judgment, of and upon matters submitted to them; but adopted and acted upon the opinions of the witnesses, or of some one or more of the witnesses, who were adduced and testified before them on the part and behalf of the proprietor in this case; and regulated their estimate and assessment of damages in this case, in accordance with [**76]  the opinions so adopted and acted upon, in disregard of, and contrary to their own conclusions, according to the best of their skill and judgment of, and upon the matters submitted to them; and contrary to what they deemed to be right and just.
According to our present recollection of the testimony on this point, given by the jurors themselves, and recalling to ourselves the inference we drew therefrom at the trial, we think it is not entirely clear whether some of the jury were not open to this objection, by reason of their having regarded it as a matter of imperative duty on their part, to regulate their opinions, at least on a portion of the subject matter of the controversy, by that of some of the witnesses. The deduction we drew from their evidence was, that on the subject of the value of the water power, and perhaps of the quarries, they had very little knowledge themselves, and therefore depended greatly, if not entirely, upon that of others who had better information, and were more competent to judge, than they were as they supposed, on those matters, and whom they examined as witnesses. That, in order to decide upon these matters submitted to them, of which they had no particular [**77]  knowledge, especially as to the water power, they felt themselves at liberty to enlighten their own judgments, by receiving the opinions under oath, of men conversant with such subjects. It has been the practice, heretofore, in cases of this nature, to allow a jury to have evidence adduced on either side, and although there has been, in this state, no decision upon this point, so far as we are informed, we think the practice founded upon reason. In the case of Parks vs. Boston, 15 Pick. 210, although the 

 [*522]  chief justice in delivering the opinion of the court, does say, when speaking of the estimate of damages by a jury "upon view," that "the jury must exercise their own knowledge and experience fully; and perhaps, in most instances, with a competent and intelligent jury, such judgment could not be much aided by the estimates of others, though under oath, in the form of testimony," yet he also remarks, that although he could not perceive why they might not have estimated the damages upon their own experience and judgment, without any evidence aliundo, still "they might be at liberty to enlighten their own judgments by the aid of testimony." Surely it would [**78]  seem to be reasonable to permit them to do so, upon those subjects, at least of which they might not have any very accurate knowledge, or upon which they could not, without information derived from some source, exercise to the best advantage, their own judgment or skill. Whether after hearing the evidence in this case, the jury were governed by the conjectural opinions or hypotheses of the witnesses founded upon arithmetical or other calculations, instead of looking to facts detailed by those witnesses and properly in evidence before them, and whether from these facts the jury drew such inferences as would justify the amount of their assessment, and if they did, whether the conclusions to which they came were such as ought now to be sanctioned upon a full consideration of all the additional testimony which has been taken before the reviewing tribunal, are entirely different questions from that we are now considering. Least it should be supposed, however, that because the oath taken by the jurors, requires them to decide "according to the best of their skill and judgment," they have no right, or ought not to hear any evidence, we will take occasion to remark, for the information of [**79]  parties in future cases, that we think the jury ought, in addition to the privilege of the view of the lands sought to be condemned, which is accorded to them by the statute, to have if they desire it, or if either party interested offer it, any testimony calculated to enlighten their judgments, or to increase their skill, which 

 [*523]  would in ordinary jury trials, be legally admissable before them. We do not say, that they are imperatively bound to decide according to that evidence, without regard to their own opinions formed upon the view of the lands, upon their knowledge of the value of real property in the neighbourhood, and upon their own skill and judgment, which the statute supposes them to possess; but they are to balance the evidence as one of the circumstances and part of the foundation upon which their judgment is to be based, and to give to it due weight. It certainly would not be a proper execution of the duty imposed on them by the act of assembly, were they to regulate their estimate of damages in accordance with the opinions of witnesses, however skilled or scientific, in disregard of, and contrary to their own conclusions, formed according to the best of their [**80]  skill and judgment, but waived and abandoned because of their conflict with those opinions.
Another objection set up by the Canal Company, to the confirmation of the inquisition, is that the right to a portion of the water power claimed by Mrs. Archer, and for which she has been allowed damages, by the award of the jury, does not in fact reside in her, but in other persons. It is in evidence before us, that the late Mr. John Stump, of Stafford, the original proprietor of the entire combined water power, transferred by deed of the tenth day of December, 1798, to the Messrs. Wilsons, a portion of the land to which this water power was attached, say about 33 acres, reserving to himself and his heirs or assigns, the privilege of digging or making a canal through the said land sufficient to convey the water of Deer creek across Rock run for water works or boat navigation, and to enjoy the same for ever, to his and their own proper use and behoof, on their paying to the Wilsons, or their heirs or assigns, any damages they might sustain by said canal, which damages should be left to be settled by persons mutually to be chosen by the parties, if they could not agree among themselves.  [**81]  --That subsequently the Wilsons conveyed a small portion of the land sold to them by Stump, 

 [*524]  say about 2 acres, to the late James Stephenson, whose heirs now own it, and that the residue was reconveyed to Stump by the Wilsons. Upon this state of facts, it was contended that the right to the soil passed absolutely from Stump by his deed, to the Wilsons, notwithstanding the reservation therein, of the privilege of digging a canal, and that this reservation was only a covenant personal to the parties, not running with the land, but that the right or privilege reserved was to be exercised in the life-time, of the grantor, Stump, and not afterwards. In support of this position, and e contra by the opposing counsel, several authorities were referred to, (Thompson vs. Gregory, 4 Johns. 83; Vanderburg vs. Van Burgen, 13 Johns. 217; Russell vs. Scott, 9 Cow. 280, 1. Jackson vs. Vermilyea, 6 Cow. 681; Pettee vs. Hawes, 13 Pick. 327; Hills vs. Miller, 3 Paige Ch. 257, 8; Astor vs. Miller, 2 Paige, 78; 1 Serge. & Rawle 227, 229, et seq; Ex parte Jennings, 6 Cow. 526; [**82]  9 Wend. 247;) various other questions were argued, displaying much research and learning on the part of the respective counsel, and growing out of the deeds just mentioned, and other deeds and papers and matters in pais given in evidence, which points we do not think ourselves called upon to decide. It would consume too much time, and unnecessarily, and would occupy too large a space, were we to review these cases, and comment upon them and upon the argument of the counsel, in the extended manner we should be obliged to do, were we to enter fully upon the subject. We incline strongly to the opinion that the right to the soil never did pass from Stump, but that even if it did, we are clear that the title to that portion of the water right which is attached to the slip, or small piece of land conveyed by Wilsons to James Stephenson, is vested in Mrs. Archer. We think so upon several grounds, which, with a single exception, it will be unnecessary particularly to specify, as well because in doing so we should swell our remarks beyond reasonable bounds, as that they will very naturally suggest themselves to the counsel who spread them out before us, in the argument.  [**83]  It is sufficient to say, that if there were 

 [*525]  nothing in this part of the inquiry, except the will of the late James Stephenson, coupled with the facts in evidence before us that his executor, who by the will had the power to sell or dispose of any interest which his testator had in the premises, was present at the taking of this inquisition, and assented to Mrs. Archer's being regarded by the jury as the owner of that portion of the water right, leaving the heirs of Stephenson to claim, through the intervention of a court of equity, or other proper tribunal, their distributive share of the amount awarded as damages, should they find that they had any interest or title--and with the further fact that the absolute estate of the same in perpetuity was estimated by the jury and found by their verdict, these facts of themselves would be sufficient to sustain the inquisition, in this branch of the case. We do not feel ourselves at liberty to question the authority of the adjudication in this court, to which we have heretofore referred, (Sappington's case vs. The Rail Road Company,) but were we now disposed to re-examine it, we should re-affirm it, having had occasion not [**84]  long since to consider the question presented by that case, and we approve the principle which was there established. Doctor Sappington was the owner for life only, of the land which was taken for public use, but it was condemned in perpetuity, and was so returned by the jury empannelled, who allowed damages for it as a fee simple estate. The court held that the owner of the remainder of the estate, was bound by the inquisition, although notice was actually given only to the party in possession, the owner for life, and that the former might avail himself of all benefit of the damages awarded, to the extent of his interest, by application to a court of equity for a proper distribution of that fund. We came to the same conclusion, upon considering this question, which although not presented at the trial, was afterwards suggested to us as worthy of inquiry, and received our deliberations in the case of the Messrs. Whites vs. the Mayor and City Council of Baltimore, but there was no decision upon this particular point made by us in that case, nor was there any such by the 

 [*526]  court of Appeals, so far as we have been able to learn, when our judgment came under review of that [**85]  tribunal--we do not understand that this particular point has passed under its judgment, and until the principle established by the case of Sappington, shall be deemed erroneous by the court of last resort, we feel disposed to adhere to it, especially as we find that the same doctrine which seemed to us to be the correct one, has since been maintained and enforced in a very elaborate opinion which has been submitted to our inspection, pronounced by that learned and profound jurist Kent, the late chancellor of New York. There is, as we think, for the reasons we have assigned, no cause, so far at least as concerns this particular objection, to quash the inquisition.
The last objection we have to consider, is, that "the damages allowed in this case, are excessive." This objection embraces, among several others, the four specifications contained in the paper, which was first filed as shewing cause why the inquisition should not be confirmed, and they are designated by the numbers, 20, 21, 22, 23.
The jury are instructed by the statute, to "value the land, and all damages the owner thereof shall sustain by cutting the canal through such land, &c."
It must be conceded, that the rule by [**86]  which damages are to be estimated, is, in all cases, a question of law. The jury are to apply the rule, but the rule itself is to be established by the courts. It is held in Massachusetts, that in trials before a jury of this kind, it is the duty of the sheriff to determine questions of law, (Merrill vs. Inhabs. of Berkshire, 11 Pick. 274,) and such would seem to be the law in England, (Leigh vs. Paterson, 8 Taunt. (Eng.) 540. S. C. 4 Serg. & Lowb. 204. Gainsforth vs. Carroll, 9 Serg. & Lowb. 204. S. C. 2 Barnw. & Cressw. 624.) Certain it is, that at the trial, it is necessary for the progress of it, and for the purposes of justice, that the power of determining upon the competency of witnesses, the admissibility of evidence, and other incidental questions arising in the course of the trial, should reside somewhere, and whether it be exercised by the sheriff, 

 [*527]  or by the jury, or by both conjointly; it would seem proper that a right of review should be vested in some tribunal of law competent to settle such matters definitively. If, then, the jury have mistaken the rule, and in assessing damages have adopted one which [**87]  is erroneous in principle, it will not be contended that this inquisition ought to be confirmed, however justly, faithfully and impartially they may have desired, and without doubt did intend, to act, in applying that rule. To confirm the inquisition, under such circumstances, would work injustice as effectually, as if, in applying a true and correct rule of damages, they had assessed an amount far exceeding what the facts of the case would have justified. Analogies, as to a proper rule for the finding of damages, may be drawn from decisions in actions for breach of covenants of seizin and quiet enjoyment, but none can be found in actions of tort for unlawfully taking and detaining property belonging to another, because in the latter class of cases one party is a wrong-doer, and we have already said, that the Canal Company is, in this proceeding, not to be regarded in that light, but rather as a purchaser of land for a public improvement, the consideration for which is settled by the appraisement of a jury, only because the parties are unable to agree upon that. It is settled that in actions of seizin and quiet enjoyment, after eviction of the purchaser, he cannot recover for [**88]  the increased value of the land, because the covenant cannot be construed to extend to any thing beyond the subject matter of it, that is, the land as it existed and was worth, when the covenant was made, and not the increased value of it, subsequently arising from causes not existing when the covenant was entered into, (Cannell vs. M'Clean, 6 H. & J. 297. Pitcher vs. Livingston, 4 Johns. 1 et sequent, to 23. It is the land, and its price or value at the time of the sale, which was the subject matter of the contract, and which the parties had in view. And we apprehend there would be danger of injustice in adopting any other rule in cases of the nature of that we are now considering. To use the language of Mr. Justice Spencer, in the case just 

 [*528]  cited, (4 Johns. 13,) such a rule ought to be fixed, as "shall bear analogy to other cases, and attain complete justice between the parties. I am not sensible that any general rule, in almost any given case, will invariably be free from exception. It is the very nature of general rules, sometimes to operate harshly, but the necessity of a fixed standard of justice, is of more importance [**89]  to the interests of men, than one that is capricious and fluctuating." The only safe rule, as it seems to us, is to look upon this estimate of a jury, just as if it were a case of an intended purchase of the land and of the water rights, quarries and other appurtenances thereto, (supposing the hypothesis to be correct that they were all destroyed, or rendered wholly useless to the proprietor,) and that the jury were called upon as a tribunal, to fix the real fair value of them, as they then existed at the time they were taken by the Canal Company, and not as it might be at some future period, arising from causes not existing at that moment. In the language of Mr. Justice Gibson, in delivering the opinion of the supreme court of Pennsylvania, in the case of The Schuylkill Navigation Company vs. Thobarn, 7 Sergt. & Rawl. 422, recognized as authority by Mr. Justice Baldwin, in delivering the judgment of the circuit Court of the U. S. for the eastern district of Penna. In the case of Chalkley Atkins vs. Phila. and Trenton Rail Road Company, (pamphlet cited at the argument,) "the only safe rule is, to inquire what would the property unaffected by the obstruction (canal) [**90]  have sold for, at the time the injury was committed? What would it have sold for as affected by the injury? The difference is the true measure of compensation." Or, as Mr. Chief Justice Savage says, for the supreme Court of New York, when delivering its decision in the matter of Albany street, 11 Wend. 153, "it seems to me that the true rule of estimating the damage is, to appraise the property at its present value to the owner, considering the extent of the interest which the owner has, and the qualified rights which may be exercised over it." And Mr. Chief Justice Shaw adopts the same rule in Parks vs. Boston, ub. sup. 15 Pick. 

 [*529]  where after stating that the taking of private property for public use, is substantially a purchase for its price or actual value on the day of such taking, he remarks, "and what difference can it make to the plaintiff (owner) that his particular estate would have been worth more or less, if he could have kept it to an after period." We think too that the same rule would seem to have been adopted by the supreme court of New York, in 17 Wend. 670, in the matter of Furman street. That was a case in which [**91]  a rule of damages was established as to a person supposed to be greatly benefitted by the extension of a street which passed along the line of his property, and left it, by reason of a deep cutting along that line, exposed to fall down, unless a wall should be erected at considerable expense, to keep it up, and yet no allowance was made to him. The same court had previously, (11 Wend. 153 in the matter of Albany street,) said, that "clearly the same rule should be adapted for the assessment whether for damage or for benefit." That is to say, there should not be a different rule as to the valuation of property taken for public use, charging persons benefitted by one rule, and allowing to those injured a rate of damages by another and a different rule.--Afterwards, in the case of Furman street, 17 Wend. 669, Mr. Justice Bronson, in pronouncing the opinion of that court, says, "all classes and conditions of men hold their property subject to the paramount claims of the state; and when it is taken for public purposes, and the question of compensation is presented, the only proper inquiry is, what is its value? The question is not, what estimate does the [**92]  owner place upon it, but what is its real worth, in the judgment of honest, competent and disinterested men?" And in page 670, he remarks, that "the proper mode of adjusting the question of damages is to inquire, what is the present value of the land, and what will it be worth when the contemplated work is completed?" And again, id. ibid, "what price will it bring in the market? That is the proper inquiry in a proceeding of this kind. As between individuals, the owner may demand any price, 

 [*530]  however exorbitant, for his property; but when it is taken for public purposes, he can only demand its real value. That value cannot depend in any degree on his own will." And in Fairman vs. Fluck, 5 Watts 516, in a case some-what analogous in principle to those already cited, in relation to the measure or standard of damages, the rule adopted in 7 Serg. & Rawle, 411, again received the sanction of the court.--See also the decision in 14 Serg. & Rawle, 82, 83, and the powerful reasoning of Ch. J. Tilghman, who delivered the opinion of the court.
It was shewn most clearly to our minds, by the evidence at the trial in court, that the jury in estimating [**93]  the value of the water power on the lands taken from the proprietor in this case, were not governed by any such rule as that which has received the sanction of the courts of Pennsylvania, New York and Massachusetts, (7 Sergt. & Lowb. 422, and case in Circt. Cot. U. S. per Baldwin, Judge, ub. sup.; 11 Wend. 153. 17 Wend. 670.; 15 Pick. 209,) and which upon principle, independent of all authority, we are satisfied ought to be the rule. Almost any other would involve the subject in utter uncertainty, and render the valuation of property taken in cases of this kind liable to speculative damages and dependent upon possible schemes and contingencies. The jury did not value the water-right of the proprietor in this case, as an unimproved power, just as it existed at the time, and assess it at such a price as it would then bring in the market, but having assumed that it would be combined with other water-rights belonging to different persons, they made their valuation upon the basis of speculative profits which in the opinions of various witnesses who were examined before them, would arise in the event of future large investments and expenditures [**94]  by persons to be interested in an extensive enterprise requiring a large capital. Having heard evidence from several witnesses of the quantity of fall which the combined water power of one or more persons together with that of the land proprietor in this case would give, and as to what the whole would be worth at tide, (the witnesses themselves testing that 

 [*531]  valuation by a supposed investment of a large capital to carry on a most extensive business in the sawing of lumber by as many as thirty saw mills, and founding their opinions as well upon that circumstance as upon a hypothetical expenditure, besides of a considerable sum of money for the cutting of a suitable race, the erection of a dam, and the construction and machinery of those mills) the jury likewise acted upon the same test or hypothesis, and based their assessment upon testimony of that character, and instead of awarding what, in their judgment the property would actually at the time sell for, they abandoned their own judgment of the value of the property and gave a sum, such as, in the opinion of the witnesses it might bring, or perhaps ought to produce at some future period, if in the hands of great capitalists [**95]  embarked in such an extensive enterprise. To show how unjustly such a rule would operate, it would not be difficult to put cases by way of illustration, in reference to the prospective value of property situated in the vicinity of a spot upon which public opinion had universally fixed as the probable site, at no very distant period, of a flourishing city--or we might put the case of lots of ground situated in the neighbourhood of the lands the subject of this controversy, say, for instance, in the town of Havre-de-Grace, and looking forward through the vista of time to the effect of the great improvements now in progress, and the large business which will hereafter be transacted there, when capitalists shall make investments--or even to real estate situated in, or near to the city of Baltimore, when all her hopes and those of the state shall have been realized by the successful termination of those great public works in which both are so zealously engaged. Surely in such cases, it could not, with justice be asserted, that property at either of those sites, should it be wanted immediately for the public use, should be assessed and valued, and paid for, by those who take it for that [**96]  public purpose, at those prospective prices which are dependent upon contingency and conjectural calculation, no matter how reasonable and even well founded they may appear. We do not mean 

 [*532]  to say that a jury would be prohibited, even in these cases put by way of illustration, from taking into consideration the most advantageous use to which property might be applied in the hands of one who is disposed to make it yield the greatest income; on the contrary we admit that such a circumstance would properly form a datum or ingredient of the assessment or valuation which they are called upon to make, but still the inquiry would at last be, what price will the property bring at this time, in the market? What will it, under all circumstances, sell for now? That price is its intrinsic value. We repeat that it appears to us, that the true value is in reason what it has been shown to be by authority, as well in adjudications, upon lands taken for public use under statutes in the nature of an ad quod damnum, as in other analogous cases.
We are further of opinion, from a careful and deliberate consideration of the testimony taken before the court, that however correct the [**97]  conclusions of the jury may have been from the evidence adduced before them, there is, since the examination before us, at which much additional testimony was given, great reason to think, that they have been mistaken as to facts, and that another examination before a new jury is necessary for the purpose of doing complete justice. We are not satisfied that there was not some error in the calculations of the height of the water-fall on Mrs. Archer's land--if they allowed her any thing except for her own water-rights, independent of, and not combined with that of other persons, as some of the jurors certainly did, we think upon the authority of some of the cases herein before referred to, that such an allowance was made on an erroneous principle. And as relates to the fall of the combined water power, there was evidence before the court, to show that even if they proceeded upon a correct principle, they may have greatly over-estimated that combined water-power. There is evidence from which an inference might be drawn that they erred in their conclusion and correspondent valuation, when they proceeded upon the basis that the quarries were totally destroyed--and 

 [*533]  there [**98]  is also evidence worthy of being sent and submitted to a second jury, as it was not before the former one, that the quarries are even more valuable now, than when the canal was not contemplated. The same remark may be made in relation to the conclusions to which the jury came as to the injury done by the cutting of the canal, to the mill, to the landing place, to the Rock Run establishment as a place of business, and to the land taken as part of the island, upon all which subjects we are satisfied from the evidence, that there is at least a reasonable doubt whether justice has been done; and that this inquisition can only be set right by a new trial, which in the words of Lord Mansfield, (1 Burr 393,) "is no more than having the cause more deliberately considered by another jury." In the case of Abbot vs. Sebor, 3 Johns. Cas. 46, Mr. Justice Kent said that he was of opinion that owing to the "extent of the demand in that case, its complex nature, its importance, its novelty and the uncertainty whether justice has or has not really been done, there are sufficient reasons why it should be re-examined by a jury,"--and in Pemberton vs. Pemberton, 13 [**99]  Vos. 299, Lord Chancellor Eldon said, "the ground upon which a new trial ought to be granted, is this: I do not think this question has been sufficiently tried. This court, though it cannot control the conclusion of a jury upon a will, must take care that the cause shall be fully and satisfactorily tried, especially where the question is of great value," &c.
Upon the subject of the award in favor of Messrs. Parker and Stephenson, for the interest or term of years which they had in a portion of the land condemned as belonging to Mrs. Archer, and for which they received an allowance of $ 2,000, endorsed upon the inquisition returned in her case, and to be deducted from the whole amount which was awarded to her, it follows from what has been said upon the subject of the rule as to damages adopted by the jury, that although the award to these gentlemen was not defective by reason of its having been found by way of endorsement on the back of the inquisition returned in the case of Mrs. Archer, yet it is 

 [*534]  obnoxious to the same erroneous rule of damages which governed the jury in making their estimate. It was in evidence that they were tenants at a certain annual rent,  [**100]  for a term which would expire in the round of a little more than a year, and there being some testimony to show what profits they might possibly, or perhaps probably have made upon their business during that period, had they been left unmolested in the enjoyment of the premises, and as to the loss of custom by their being obliged to relinquish their place of business, the jury were influenced by those considerations and others of a kindred character, and rendered a larger verdict than they would otherwise have found. Such a standard of damages is too uncertain and variable, and falls within the principle of the authorities which have been referred to in a preceding part of this opinion. In Fairman vs. Fluck, 5 Watts 516, 518, which was a case of replevin for goods taken as a distress for rent, the defence of the tenant was, that the landlord, by the lease covenanted to make certain improvements in the yard attached to the rented premises, which was a wagon-yard tavern house, but did not perform his covenant, by reason whereof the tenant lost his custom as a tavern keeper, and therefore sustained damage to the whole amount of the quarter's rent claimed in that suit.  [**101]  The tenant was allowed to set up as a defence, this breach of covenant on the part of his landlord, but the question was what was the proper measure of damages on such breach. The supreme court of Pennsylvania, after again recognizing the rule established in 7 Serge. & Rowle, 411, ubi sup. say, "and in estimating the value of the item, in the present instance, not only are speculative and remote damages to be rejected, but even the proof of a direct loss of business, by showing that a customer went away in consequence of the situation of the yard. Such standards are uncertain and variable, depending on the amount and value of custom, and different with different tenants; whereas the rule ought to be certain and uniform."
If, in addition to the mass of authority we have adduced 

 [*535]  in support of the fixed, uniform and certain rule as to damages which we have adopted, it were necessary to call in aid the opinions of learned elementary writers and distinguished jurists, it would not be difficult to do so. We shall content ourselves with one or two extracts. The first is from Story on Agency, 216, the work of one eminent for his sound legal knowledge and extensive [**102]  attainments, and whose opinions among the members of that profession which he adorns, are deservedly held in high estimation. Speaking of a proper standard of damages in cases bearing some analogy to that under our consideration, he says, "but possible or probable future profits or contingent and speculative gains, would constitute no just ingredients in the estimate of such loss or damage, from the uncertainty of their nature, the fluctuating and changeable elements on which they depend, and their inadequacy and unfitness as a rule in a great variety of cases, where a wrong has been done, &c." And in the case of Short vs. Skipwith, 1 Brockenbrough's Reports, 108, containing Chief Justice Marshall's decisions, that eminent judge and profound jurist remarks, in an analogous case, "it is said and truly said, that extravagant calculations of conjectural profits are not to be indulged, and will never be regarded in courts of justice as the standards by which damages are to be ascertained." The last extract we shall quote, is from the opinion of the same judge, in delivering the judgment of the supreme court of the United States in Bell, et al, vs. Cunningham, 28 U.S. 69, 86, [**103]  wherein he says, (it being the case of a breach of the orders of a principal by his agent,) "we do not mean that speculative damages, dependent on possible successive schemes ought ever to be given; but positive and direct loss, resulting plainly and immediately from the breach of orders, may be taken into the estimate." So in the case before us, the jury ought to have allowed damages to the land proprietor, or to any person having an interest in the property, sought to be condemned, for any direct loss, resulting plainly and immediately from the making of the canal thereon. In awarding an amount beyond this 

 [*536]  rule, as we think they did, to Messieurs Parker and Stephenson, they erred, and their inquisition must be set aside.
It is therefore this second day of October, in the year 1839, ordered and adjudged by Harford county court, that the inquisition heretofore taken in the case of Mrs. Ann Archer vs. The Tide Water Canal Company, and returned to this court, together with the award endorsed thereon in favor of Parker and Stephenson, be, and the same is hereby set aside, and the sheriff of Harford county is hereby required and directed, to cause to be taken with all [**104]  convenient speed, and in the mode prescribed by the acts of assembly in such case made and provided, another inquisition, and to return the same to this court pursuant to law.
R. B. MAGRUDER,
JOHN PURVIANCE.  

32 of 47 DOCUMENTS 

THE PLANTERS' BANK OF PRINCE GEORGE'S COUNTY vs. THE FARMERS AND MECHANICS' BANK OF GEORGETOWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 449; 1837 Md. LEXIS 6 

June, 1837, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Prince George's county court.

This was an action assumpsit, instituted on the 15th November, 1834, by the appellee against the appellant. The declaration, was for sundry matters and articles properly chargeable in account, &c. for money paid, laid out and expended, lent and advanced, had and received for the use of the plaintiff, and also for an account stated. Issues were joined on the pleas of non assumpsit and limitations.

1. At the trial of the cause, the plaintiffs, an incorporated banking institution in the District of Columbia, offered evidence of a balance due them in 1829, resulting from dealings between the plaintiffs and defendants, from January, 1828, to 1829, and then terminating; consisting of notes, checks and drafts, sent to each other reciprocally for collection, the proceeds of which when collected and paid, were placed by each, to the credit of the other, according to the course of dealing between them. The defendants then read to the jury the following letters, which it was admitted were written by the cashiers of the two banks:

FARMERS AND MECHANICS' BANK,

Georgetown, February 11, 1828.

DEAR SIR:--I have your favours of 7th [**2]  and 8th inst. with enclosures. Our book-keeper is just at this time much engaged in the examination of accounts, but will take the first leisure moment to attend to yours,

J. J. STULL, Cash'r.

T. TYLER, Esq.

FARMERS AND MECHANICS' BANK,

Georgetown, February 16, 1828.

DEAR SIR:--I enclose you a statement of differences in our accounts, as they appear on our books, and the statements furnished by you from the time of the last settlement, in 1821, showing the different sums charged by us, and not credited by you, as also several items credited by you, and not charged by us, which you will please examine and report on them. In August, 1827, I find I have charged you with Truman Tyler's check, for $ 50 drawn on Planters' Bank, but charged here, which I now enclose for our credit, your early attention to the subject will oblige,

J. J. STULL, Cash'r.

T. TYLER, Esq.

FARMERS AND MECHANICS' BANK,

Georgetown, February 26, 1828.

DEAR SIR:--The enclosure in your favour of 23d inst. is received. On the 16th inst. I enclosed you a statement of differences in our account, and also T. Tyler's check for $ 50, the receipt of which you do not acknowledge,  [**3]  

Yours,

J. J. STULL, Cash'r.

T. TYLER, Esq.

PLANTERS' BANK,

Prince George's county, March 3, 1828.

DEAR SIR:--I have received your two favours of the 16th and 26th ult. with their respective enclosures. I have been utterly at a loss to account for the non-appearance of my check on this bank received in the latter, and for which you have a credit. Your statement received in the former, shall be attended to as early as possible, but inasmuch as it includes the transactions of our banks for more than seven years, and is involved in great obscurity, it will be a work of great labour to investigate it with accuracy, particularly as the person who acted as our book-keeper during the whole period is now absent from the bank, but is expected shortly to return. Upon first view of your statement of differences, I observed several errors, only one of which I will now state. On the 14th October, 1822, you say--T. Tyler's note of $ 600--paid $ 400--short $ 200. Upon a reference to our correspondence at that time, you will find that prior to the note becoming due, I obtained your permission to pay $ 400 at the maturity of the note, and to renew for the other $ 200 for [**4]  thirty days, and upon reference to the copy of our accounts furnished you, you will find that at the expiration of the thirty days, the balance of $ 200, with discount thereon was paid, and that you are credited with the same. We have furnished you with copies of our account, from our first settlement to the present time; and in order to come to a fair and corrected settlement of our accounts, I am persuaded it will be necessary for us to have a full copy of your accounts from the same period. Being the only officer in the bank at this time, except the president, and having been confined to my bed for the last ten days, has prevented an earlier attention to your letter of the 16th ult.

Yours,

T. TYLER, Cash'r.

J. J. STULL, Esq.

FARMERS AND MECHANICS' BANK.

Georgetown, March 8, 1828.

DEAR SIR:--I have your favour of 3d inst. I hope you will find less difficulty in adjusting our accounts, than you seem to apprehend. The discrepancies are numerous, but I hope on reference to your books and letters, you will be enabled without difficulty to trace them. Our accounts agree as far as we have been able to discover, with the exception of the errors furnished. It [**5]  seems that your note was charged up ($ 600) for the whole amount, when it was renewed for $ 400, you afterwards credit us $ 201 13 but we charge you only $ 1 13 for the discount. If you cannot account for all the errors as stated by us, you will please report them, and we perhaps will be able to trace them here, and in that way be enabled to adjust the account without making out the whole account from our books.

Yours,

J. J. STULL, Cash'r.

T. TYLER, Esq.

PLANTERS' BANK,

Prince George's county, March 21, 1828.

DEAR SIR:--I send under cover our remarks on your statements of differences in our accounts, as far as we have been able to trace them. Please to examine them, and give us the information requested. I enclose you for collection and my credit, Sam. Sprigg's bill on Gen. W. Smith for $ 1,200.

Yours,

T. TYLER, Cash'r.

J. J. STULL, Esq.

And also read the following resolution of the board of directors of the defendants.

August 28th, 1834.

Resolved by the board of directors, that the cashier inform the Farmers and Mechanics' Bank of Georgetown, that this institution always has denied, and still does deny all indebtedness on [**6]  the part of this institution to the said Farmers and Mechanics' Bank of Georgetown."

The defendants then prayed the court to instruct the jury as follows:

1. That if the jury should be of opinion from the evidence, that the dealings between the plaintiffs and defendants terminated in the year 1829, and that from that time, or from an earlier period to the present, there had been no recognition by the defendants of a debt due the plaintiffs, but that, on the contrary, the defendants have refused to settle, or allow the claim asserted by the plaintiffs, that then the plea of the statute of limitations is a bar to the plaintiffs' action, and the verdict must be for the defendants.

2. That if the jury should be of opinion from the evidence, that the accounts between the plaintiffs and defendants have remained unsettled, and in dispute from the year 1829, when the defendants stopped payment, or from an earlier period, to the present time, and that within three years next preceding the institution of this suit, the defendants have made no acknowledgment of indebtedness to the plaintiffs, that then the plea of the statute of limitations is a bar, and the plaintiffs are not [**7]  entitled to recover.

3. That if the jury should be of opinion from the evidence, that the defendants since the year 1829 or before, have failed or refused to settle accounts with the plaintiffs, though called upon so to do more than three years next before the institution of the present action, that then the act of limitations is a bar, and the plaintiffs are not entitled to recover.

4. That if the jury should be of opinion from the evidence, that the claim or any part of the claim of the plaintiffs on the defendants, arises from notes and drafts sent by the said plaintiffs to the defendants for collection, and which became due, and were collected more than three years before the commencement of the present action, that then, in relation to such portions of the plaintiffs' claim, the statute of limitations is a bar, and the plaintiffs are not entitled to recover.

5. That if the jury should believe from the evidence, that from the year 1821, when the accounts between the plaintiffs and defendants were settled, to the year 1829, when their dealings ceased, and the defendants stopped payment, and discontinued banking operations, and that from the latter period, or before,  [**8]  or since, there has been no settlement of accounts, or recognitions of a balance due the plaintiffs, but on the contrary, the claim of the plaintiffs has been disputed, and the defendants have failed to settle the account, then the plaintiffs are not entitled to recover, the plea of the statute of limitations being a bar to their action.

All which instructions the county court (Stephen, Ch. J., and Key and C. Dorsey. A. J's,) refused to grant. The defendants excepted.

2d EXCEPTION.--After the evidence which had been offered in the preceding exception, and which is to be taken as a part of this, the defendants proved to the jury by competent witnesses that the defendants stopped payment and refused to pay specie for their notes or claims against them on the 10th August, 1829, and suspended banking operations on that day: and that a copy of the following resolution of the board of directors, announcing that fact to the public, was published in the newspapers in the District of Columbia, Baltimore, and Annapolis, at that time, viz:

"August 10th, 1829, whereas the very general prevalence of reports injurious to the credit of this institution, have produced such an effect [**9]  upon its circulation, and such incessant demands for specie, that in the opinion of the board it has become necessary, at least for a period, to suspend the redemption of its paper. In adopting this course the board of directors consider it their duty to assure the creditors of the institution, that the funds of the bank are in their opinion abundantly sufficient to discharge all its obligations, so soon as the same can be made available; and they also are justified in the belief that, the period when this can be effected is not far distant. The board likewise made known to the stockholders that so far as they can at this time determine of the situation of the bank, they entertain a decided conviction, that there will not be ultimately a considerable loss. Indeed they are persuaded there will be none, because it is not believed that the amount of bad debts will be more than equal to the surplus profits. The board, therefore, whilst they earnestly advise the bill-holders and depositors to submit to no sacrifice, feel themselves perfectly warranted in holding out to the stockholders the prospect of full indemnity. It is in contemplation to appoint a committee to investigate carefully [**10]  the affairs of the bank, and when the same shall be completed, a full exposition of its affairs will be laid before the public. Therefore, resolved, that until further notice, the paper of the Planters' Bank of Prince George's county will not be redeemed, and that the president cause this preamble and resolution to be communicated to the public, by inserting a copy in one or more newspapers in the District of Columbia, and the cities of Baltimore and Annapolis, and at the door of the banking house."

And thereupon they prayed the court to instruct the jury, that if the jury believe from the evidence in the cause, that the account between the parties terminated in 1829, and that the defendants in that year stopped payment, and refused to pay specie for their notes, and suspended ordinary banking operations, and that public notice of that fact was given in the manner stated in this exception, that then any balance which may have been due from the defendants to the plaintiffs ceased to be held by the former in a fiduciary character, and became a fit subject for a suit at law, and the act of limitations from that time began to run. The court refused to give the instruction as prayed.  [**11]  The defendants excepted.

3d EXCEPTION.--Upon all the evidence in the preceding bills of exceptions, which it is agreed shall be considered as incorporated in this exception, the defendants further prayed the court to instruct the jury, that if they should find from the evidence, that the last settlement between the plaintiffs and defendants took place in the year 1821, and that no settlement has taken place since, and that there has been no admission of a balance due the plaintiffs at any time, that then the plaintiffs will only be entitled to recover, by shewing a balance in their favour upon the whole account commencing in 1821, when the last settlement was made, if the jury believe that in fact a settlement was then made; which instruction the court refused to give, but were of opinion, and so instructed the jury that, the plaintiffs are entitled to recover in this action, the moneys collected on the notes given in evidence by them, unless the defendants can shew satisfaction thereof, or an indebtedness to them on the part of the plaintiffs, in the course of the dealings which took place subsequent to the year 1821, or before, if the settlement then made was in any respect [**12]  or particular incorrect. To which refusal of the court to give the instruction prayed, and to the opinion of the court as given, the defendants excepted, and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The usage of banks in regard to the manner in which current deposites, and the proceeds of notes and drafts placed with them for collection are paid, not being in proof, nor heretofore proved and established in courts of justice, cannot be judicially known, or sanctioned as general mercantile usages, which are a part of the law of the land.

A usage established by proof, that current deposites made in a bank, and the proceeds of notes and drafts placed for collection, are to be paid to the depositor, upon demand, at the counter of the bank, would prevent the running of the act of limitations against such depositor, until payment of his claim had been refused, or some act done, with his knowledge, dispensing with the necessity of a demand.

Such dispensation would be furnished by the suspension of specie payments, and discontinuance of banking operations, by the bank, provided, those acts were known to the plaintiff, and from the time of such knowledge, the statute of limitations would begin to run.

Mere fiduciary relations between the parties to a suit, in respect to the matters in controversy, will not per se, prevent the running of the act of limitations. In a court of law there is no such bar to the operation of the act as trusts, otherwise than as shewing when the right of action accrued.

Though the indebtedness of the defendant, may be the result of a running account between the plaintiff and defendant, it is not necessary in an action for money had and received, that the plaintiff should produce the running account, and prove all the items thereof, but he may prove any isolated receipt of money by the defendant, and claim a verdict for the amount, unless satisfaction in some way of such receipt can be shewn.  

COUNSEL:
PRATT, for the appellants, contended:

1. That there was nothing in the relation which the parties bore to each other, or in the nature of their dealings, which prevents the application of the act of limitations to this case as to ordinary cases.

If the transactions constituted a trust, limitations were still a bar. In equity to prevent the operation of the statute, the trust must be a contingent one; in a court of law no such exception can be taken to the act. The statute applies at law whenever an action can be brought on the trust at law. The rule only applies to trusts, exclusively cognizable in equity. Angel. on Lim. 349, Green's executrix vs. Johnson, et ux, 3 Gill and John. 391. And although the transactions here might constitute a trust, or the money when collected considered in the hands of a fiduciary, still in a court of law the bar exists. The rule applies to all constructive trusts--to [**13]  banks as well as to individuals. The policy of applying it to banks is the stronger, as they have officers constantly employed to investigate and settle their accounts.

2. That if as a general rule limitations would not apply to dealings between banks, there are, nevertheless, circumstances in this case which take it out of the operation of such general rule, and make the plea of the statute a bar to the plaintiffs' right of recovery.

It would be difficult to show that the Farmers and Mechanics' Bank was a depositor with the Planters' Bank. The action was brought for collections. The dealings terminated in 1829. The balance arises from mutual dealings--not on claims sent from Georgetown to Prince George's. Each bank places the proceeds of collected notes to the credit of the other, though not as a depositor. A depositor has the right at any moment to call for his deposite. His right results not from mutual dealing, but from a deposite for safe keeping. The correspondence shows this a disputed claim: and no settlement appears since 1821. The accounts are admitted to be erroneous. The character of a deposite can no longer then be claimed for it, and the ground of an exception [**14]  to the statute therefore fails. The act begins to run from date of the right of action. Darnall's executors vs. Magruder, 1 Har. and Gill, 439. If a demand was necessary in this case to found a right of action, it exists here. It is implied in all the correspondence. The necessity for it was superseded. There was a denial of the debt--a refusal to pay any thing, from which the act began to run.

3. If the appellant is in error on these points, and the case is not one to which the act of limitations would apply in a proper form of pleading, yet upon the pleadings as they stand, the plaintiffs cannot avail themselves of an exception from the operation of the statute.

Under the second exception, if a demand was necessary to enable the plaintiffs to sue in this case, the suspension of the bank, and notice to creditors of inability to pay, dispenses with a demand, and authorizes an immediate suit. Law Library, 71. Shutting up a bank, so that a demand thereat is impossible, is a declaration to all the world, that it will not pay, and demand is not necessary to enable a party to sue.

The prayer is, that failing in 1829--dealings ceasing--no indebtedness since recognized--then [**15]  the jury may find the statute a bar. The appellees insist that, they know nothing of these facts, and that the statute had no application--but knowledge is clearly inferable from the facts which went to the jury.

Can the appellees under the pleadings take advantage of their alleged exemption from the statute of limitations? They have taken issue on the plea of the statute, and their declaration shows no exemption from the statute as a trust. The pleadings should state the facts on which an exemption is founded. 3 Gill and John. 391. Where there is a trust it should be so pleaded; the fact of trust should specially appear.

The appellees may say that no exception to the statute need be pleaded, but the savings in the statute itself, and where the exemption does not arise from the savings that it is matter of evidence. This, however, is against the principles of the decision last cited.

Where a fraud is discovered within three years, this is an exemption from the statute, though it contains no exception in regard to fraud, but the fraud must be specially replied. Chit. on Con. 313.

Upon the third exception he contended that the court erred in rejecting the appellants'  [**16]  prayer, and in the instruction actually given, upon the ground, among others, that the instruction assumes matter of fact which should have been submitted to the jury. Farmer's Bank of Maryland vs. Duvall, 7 Gill and John. 60.

C. Cox, for the appellees.

This is an action on the case instituted on the 15th November, 1834, by the appellees against the appellants, to recover a balance due the former, as a depositor with the latter, and which the latter on the 28th August, 1834, refused to pay over.

The dealings between the parties as shown by the record, extended through several years, down to sometime in the year 1829, but the controversy presented to this court in the bills of exceptions, is limited to the proceeds of certain notes, drafts and checks, admitted to have been transmitted to the appellants by the appellees for collection, from January, 1828, to the year 1829; to have been duly collected by the former, and as collected carried to the credit of the other as deposites, according to the course of dealings between the parties.

Against this claim, the justice of which is established by the admission of the appellants of record, it sought in the court below [**17]  to defend itself under the statute of limitations. This defence was overruled by that court, and their decisions on the several questions in which it was presented, are now brought by the appellants before this tribunal for review. I was a concession in the court below, as sufficiently shown by the bills of exceptions, that the ordinary relation between a bank and its depositor is strictly fiduciary, not admitting during its undisturbed continuance, an action at law, and so not within the operation of the statute of limitations. But it was supposed by the appellants, that this relation was terminated more than three years prior to the institution of the present action: 1st, by the operation of certain facts, offered as evidence of a failure, or refusal on its part to account with, or acknowledge indebtedness to the appellees; and 2d, by the suspension of the appellants in the year 1829, and these substantially are the only questions intended to be presented for adjudication to the court below, and actually adjudicated by that tribunal.

For the appellees it will be contended:

1. That the concession made in the court below, as to the ordinary relation between bank and depositor,  [**18]  cannot be now recalled, nor can that question be presented to the appellate tribunal for adjudication. But if jurisdiction of the question be entertained, it will be contended that the law is as stated to have been conceded.

2. The mere failure to account or acknowledge indebtedness, cannot change the pre-existing fiduciary relation between the parties, so that at the end of three years from its creation, the statute of limitations can bar the cestui que trusts remedy.

3. The record presents no evidence of a refusal to account, on denial of indebtedness, prior to August 28, 1834.

1st. The correspondence incorporated in the bills of exceptions evidently refers to a distinct matter, not now in controversy, and if it referred to the same matter, would recognize instead of denying the fiduciary relation between the parties.

2d. The resolution of August 28, 1834, being the only additional testimony on this point, exhibited by the record, is not evidence of an earlier denial of indebtedness or refusal to account.

4. The resolution of August 10, 1829, or the fact of the appellants' suspension in that year, is not brought to the appellees' knowledge for three years [**19]  or more, before this action was instituted, nor if known to the appellees, was its object or effect to change the pre-existing fiduciary relation between the parties to this action.

The first prayer admitted the fiduciary relation, and the defendants introduced certain facts to escape from its effect. It does not appear affirmatively that the fiduciary relation was disputed in the court below, hence its non-existence cannot now be relied on, and so long as it continued, no right of action at law accrued. When did an action at law accrue to the appellees? From that time the statute began to run, so long as the possession of the fund by the appellants was consistent with, and not adversary to the rights of the appellees, the fiduciary relations continued. This was broken by demand and refusal to pay. Green vs. Johnson, et ux 3 Gill and John. 395. Until demand no cause of action existed. This is like the case of a factor entrusted to sell the goods of his principal. Kane vs. Bloodgood, 7 John. C. R. 90, 122. In answer to this it is said, that the dealings here constituted a simple contract debt payable on demand, and on which the statute operates at once. The case of Darnall vs.  [**20]  Magruder, 1 Har. and Gill, 439, relates to a debt of that description, but has no application here, it is founded on a precedent duty to pay. 1 Chitty, 320. Here the creditor must seek his debtor. The bank is not to seek the depositor. Payment is only to be made at the counter of the bank, the depository. It is like other cases of payments to be made at specified places. It is not a loan which carries interest. No interest accrues until refusal to pay. The use of the money is not implied. The depositor may claim at any moment. The use of the money is inconsistent with the obligation of the bank to pay, incidentally the bank may indulge in some use, but the contract disaffirms any use, and engages to pay on demand. A re-payment may be demanded immediately after the deposite. The argument from inconvenience may be relied on. But the banks are creatures of the legislature, they are established for public convenience--as safe depositories for disbursing officers--or trustees of the courts. Are these to be cut off after three years? Can the banks close their doors to such creditors after that period? It is argued that the original relation of the parties was changed more than three years.  [**21]  --The evidence is relied on for this. It is said, a failure to acknowledge the claim for more than three years creates a bar. As to refusal to account the record shows none until 1834. The time of the claim was from January 1828 to 1829. In February, 1828, the appellants transmitted an account to the appellees. The correspondence does not relate to a present claim; but to a prior account. The evidence does not include the whole correspondence, but it sufficiently shows that all differences in the accounts were reconciled, and nothing left open but dealings from 1828. The whole correspondence admits the fiduciary relations, and a mere difference in the state of the accounts cannot change that relation.

The resolution was not brought to the knowledge of the appellees. One of the parties sought by an adoption of a resolution, and publication of it, to affect us with it. But we are only to be affected by actual or constructive notice--as by proof that the appellees took the paper in which the notice was published. Being correspondents, the appellees were entitled to special notice. The refusal of the court is justified by the absence of evidence as to this resolution. The object of [**22]  the resolution of 1829, was not to change the relation between the bank and its depositors. It did not apply to depositors. It is supposed the Bank declaring itself insolvent stopped the former relation, and this without our knowledge. This would be a premium to dishonesty--a silent unknown resolution would work all the mischief. Chitty on Bills, 317.

The last instruction assumes no matter of fact. It does not decide that any money was collected. It assumes no definite sum, but such sum as was collected, leaving that to the jury.

J. JOHNSON, in reply.

1. There was nothing in the relation of the parties to each other, or in the nature of their dealings to prevent the application of the statute of limitations to any balance which might be due from one to the other. Nor is there any thing in the shape in which the question is presented by the record, which prohibits its discussion here.

The evidence and prayers in the first exception, raise the general question of the applicability of limitations to such a claim as the plaintiffs sought to recover. The prayers, to be sure, go further and place the defence upon narrower grounds than the circumstances of the case justified;  [**23]  but though the defendants thought proper to do this, it by no means follows, that they are not entitled to the benefit of the broader and more comprehensive ground, that independently of special circumstances, the plaintiffs' claim is barred by the statute.

In discussing this branch of the case, it is to be conceded, that the plaintiffs' claim is subject to the operation of the statute, and that the court would so have decided, if an application for that purpose had been made to them; and the attempt is, to escape the effect of the bar, upon the ground, that the defendants did not present the general question, but rested their defence upon special and peculiar circumstances. But can such an attempt be successful? A party prefers a claim barred by limitations, which are regularly pleaded against it. At the trial, a variety of facts are proved, of a tendency to strengthen the defence, and then, because the defendants apply to the court to instruct the jury, that if they believe these facts, the plaintiffs are not entitled to recover, it is the duty of the court to refuse the prayer, and suffer the plaintiffs to obtain a verdict; although, even without those facts the plaintiffs [**24]  would not be entitled to recover. In such a case, it is clearly the duty of the court to say, that whether these particular circumstances do, or do not exist, the action is barred by the statute, and the plaintiffs cannot recover. In proving the special circumstances detailed in the first exception, the defendants performed an act of supererogation, but this surely cannot deprive them of the benefit of the statute, if their case is of such a nature as to entitle them to it.

If the defendants are at liberty to discuss the general question of the applicability of the act of limitations to the plaintiffs' claim, what is there in the relation of the parties, or in the nature of their dealings, which exempts it from its operation?

It will not avoid the bar, to say that the money was held by the defendants in trust, for all trusts are subject to the statute, except those purely technical trusts, which are alone cognizable in equity. Angel. on Lim. 349, &c. Kane vs. Bloodgood, 7 John. Ch. R. 90. Coster vs. Murray, 20 John. Rep. 576, 610. If an action at law may be maintained, a trust is as much within the operation of the statute as a mere legal demand. Technical trusts, of which [**25]  chancery has exclusive jurisdiction, are not within the scope of the statute, because there being no remedy at law, the analogies of the latter forum cannot be borrowed, and the act of limitations in terms, is not applicable to courts of equity. But where the courts of law and equity have concurrent jurisdiction, the plaintiff cannot, by seeking the one or the other court, deprive his adversary of a protection given him by statute.

2. But supposing the general question to be against the appellants, and that apart from special circumstances, limitations would constitute no bar to the plaintiffs' claim. Are not the special circumstances of this case sufficient to constitute such bar?

The only ground upon which the plaintiffs can claim exemption from the statutory bar is, that no right of action existed, without a preliminary demand of the money at the counter of the defendants, for there can be no doubt, that the statute is in motion from the time of the accrual of the cause of action. Darnall vs. Magruder, 1 Har. and Gill, 439.

Conceding, for the sake of the argument, that this is the case, when money is placed in deposite with a bank, and the depositor has no reason [**26]  to believe that his demand will be disputed when made; are there not many circumstances in this case which place this particular claim upon a totally different footing?

The dealings between the parties altogether ceased in 1829, and from that time down to the institution of this suit, repeated but fruitless efforts were made to adjust the accounts. The plaintiffs, in the correspondence of 1828, were distinctly informed, that the claim as asserted, was controverted, and of course they might at once have instituted this suit. To have made a demand at the counter of the defendants, after being told in advance, that they would not be paid, would, to say the least, have been a very idle ceremony, too idle, one would suppose, to be an essential pre-requisite to the commencement of a suit. And not only were the plaintiffs informed that their claim would not be paid, because it was disputed, but they were also advised that it could not be, in consequence of the general inability of the defendants to meet their engagements.

In August, 1829, more than three years before suit brought, the defendants suspended cash payments, and discontinued banking operations, and gave public notice [**27]  thereof in the papers of the day. This notice, it was in proof, was published in the District of Columbia, where the institution of the plaintiffs was situated, and though no express proof of notice to the plaintiffs was offered, there was abundant evidence from which the jury might have inferred it.

In view of all the circumstances of the case it is hardly possible to suppose, but that the plaintiffs had notice of the fact, and if they had, it would seem to be indisputable, that the right to sue was perfect without any previous demand.

Can there be a doubt, that from the time of this suspension and annunciation, the defendants were chargeable with interest upon all their debts, and if so, there must have been an immediate right of action. Darnall vs. Magruder, 1 Har. and Gill, 439. There was evidence tending to prove all the facts upon which the prayers of the defendants in the first and second exceptions repose, and if there was, they should have been granted. He further insisted, that if a previous demand of the defendants was necessary to the institution of a suit, there could be no recovery in this case, because there is no proof of such demand.

3. But conceding [**28]  both those questions to be with the plaintiffs, and that their claim is not within the statute, either upon general or special grounds; still, the plaintiffs cannot recover upon the case as exhibited by the pleadings.

They have taken issue upon the plea of limitations, which admits its legal effect, and presents the single question, whether, in point of fact, the cause of action accrued three years or more before suit brought. Green vs. Johnson, 3 Gill and John. 389. Blanch. on Lim. 89. If the action did, in fact, accrue three years or more before suit, and there was no subsequent recognition or acknowledgment of indebtedness, the claim is barred upon the pleadings as they stand, no matter what the character of the claim may be. The plaintiffs should so have declared, as that the plea of the statute might have been demurred to, or else they should, by a special replication, have presented the grounds upon which they claim immunity from the statute. Having done neither, they have no right to avoid the question of fact, which they have chosen themselves to try, and present a legal question not involved in the pleadings.

4. Upon the third exception he contended, that the court,  [**29]  in their instruction, assumed matters of fact which should have been submitted to the jury.

The statement in the first exception is, that the plaintiffs gave evidence merely of a balance due them, and of the collection of notes, &c. Yet the court instruct the jury, that the defendants did in fact collect, which, of course, precluded them from denying such collections, as they might otherwise have done, notwithstanding the plaintiffs' proof. It was the province of the jury to decide upon the proof, and to say whether it was credible or not. Farmers' Bank of Maryland vs. Duvall, 7 Gill and John. 45.

But there is a further objection to the instruction in this exception. The previous accounts between the parties were settled in 1821. From that time, down to 1829, there had been an uninterrupted series of dealings, and consequently in the adjustment of the accounts between those dates, all the transactions should be brought into view.

The plaintiffs ought not to be permitted to single out particular items of charge, and claim to recover upon them, when, perhaps, upon the whole account if exhibited, they would be brought in debt.  

JUDGES:
The cause came on to be argued before ARCHER,  [**30]  DORSEY, and CHAMBERS, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*466]  DORSEY, Judge, delivered the opinion of the court.
Had the usages of banks (the existence of which, the several prayers in this case made to the court appear to assume, and the argument on both sides impliedly yields, viz: that where a current deposite of money is made in a bank, in the absence of all special stipulation to the contrary, it is to be paid to the depositor upon demand at the counter of the bank, and that where a note or draft deposited in a bank for collection is paid, the net proceeds of the amount thereof is carried to the credit of the depositor, and is held by the bank collecting it in all respects as if it were a current 

 [*467]  deposite of money) been proved to the jury, and submitted to their finding, it would materially influence the decisions of this court, in many of the determinations of the county court, which we are called on to review. But these usages, however well known and recognized by the community at large, and adopted in all their transactions with the banks, not being of proof in the record before us, nor heretofore proved and established in courts of justice, cannot be judicially known [**31]  to us, or sanctioned as general mercantile usages, which are a part of the law of the land, and our adjudications on the acts of the court below, must be made as if no such usages had ever existed. In this aspect of the case, the county court were clearly in error in refusing the defendants' first prayer in the first bill of exceptions, the act of limitations being a conclusive bar to the action whether "the defendants have refused to settle or allow the claim asserted by the plaintiffs," or not. For the same reason the county court were wrong in their refusal of the defendants' second, third, fourth, and fifth prayers in the first bill of exceptions; although in the three former, the fact of a subsequent recognition by the defendants of the plaintiffs' claim within three years before the institution of this suit (which would have removed the statutory bar) was not submitted to the finding of the jury. There being no evidence offered of such subsequent recognition, the court properly withdrew that fact from the consideration of the jury.
To test the accuracy of the county court's refusal to grant the defendants' prayer in the second bill of exceptions, we will assume, as the [**32]  prayer does, that the existence of the aforementioned usages of the banks was to be judicially recognized by the court, ought the prayer then to have been granted? We think not. Before the act of limitations commenced running against the plaintiffs, payment of their claim must have been refused by the defendants, or some act must have been done by the defendants (a knowledge of which is brought home to the plaintiffs) dispensing with the necessity of a demand of payment at the counter of the Planters' Bank. 

 [*468]  Such dispensation is abundantly furnished by the acts of the defendants on the 10th of August, 1829. But were those acts known to the plaintiffs (without which knowledge the act of limitations does not commence running against them) is the question? The prayer of the defendants calls on the court to assume the fact of knowledge, and for that reason as the point was presented to them, they very properly refused the prayer. Although the facts submitted to the finding of the jury furnish strong evidence of the plaintiffs' knowledge thereof, yet they are not of that conclusive character to warrant the court in assuming the plaintiffs' knowledge, and in the withdrawal [**33]  of the determination of that fact from the hands of the jury. But the court erred in not granting this prayer, because the fact of the existence of the banking usages referred to, not being in proof, could not enter into the consideration of the questions before them, and the act of limitations being a bar to the plaintiffs' action, whether the alleged acts of the defendants ever occurred or not, or whether the plaintiffs had a knowledge thereof or not, the finding of the facts submitted to the jury, could not interfere with the running of the act of limitations, and therefore the prayer of the defendants ought to have been granted. In our remarks upon this bill of exceptions, we wish it to be understood, that we by no means accede to the doctrine in the defendants' prayer, and urged in the argument of this cause, that mere fiduciary relations between the parties to a suit, in respect to the matters in controversy, per se, prevent the running of the act of limitations. There is in a court of law no such bar to the operation of the act of limitations as "trusts," otherwise than as shewing the terms of the contract between the parties, and time at which the plaintiffs' right [**34]  of action accrued, and thus avoiding the statute by shewing that by the terms of agreement sued on, there has been no such lapse of time, since the right to sue commenced as would create a bar. See the case of Green, ex'r of Green vs. Johnson, ex'r, 3 G. & J. 389, 391. From the views we have taken of this matter of trust, it is unnecessary for us to 

 [*469]  determine, whether conceding it to be an available defence against the act of limitations in a court of law, the plaintiffs could avail themselves of it in the present state of their pleadings.
Giving to the opinion of the county court in the third bill of exceptions, that construction to which in fairness we think it entitled, we see in it nothing of which the defendants have any just ground to complain. To obtain a verdict the plaintiffs were not bound to produce their running account with the defendants and prove all the items thereof, and claim nothing but the balance thus appearing to be due, but they were at liberty to prove any isolated receipt of money by the defendants and claim a verdict for the amount thereof, unless in the language of the court below, "the defendants can shew satisfaction [**35]  thereof, or an indebtedness on the part of the plaintiffs, in the course of the dealings, which took place subsequent to the year 1821, or before, if the settlement then made was in any respect or particular incorrect." By this instruction the court do not mean, as has been supposed, to confine the Planters' Bank exclusively to testimony offered by itself; but it may take advantage of the testimony adduced by the plaintiffs, to shew the balance of the accounts between the parties from January 1828 to 1829. The rejection of the defendants' prayer in the third bill of exceptions meets our concurrence.
We concur with the county court in their opinion and instruction given to the jury, and in their refusing the defendants' prayer in the third bill of exceptions; but dissenting from their refusals to grant the defendants' prayers in the first and second bill of exceptions, we reverse their judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

33 of 47 DOCUMENTS 

JAMES S. WILSON vs. THE YORK AND MARYLAND LINE RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 58; 1839 Md. LEXIS 29 

December, 1839, Decided 

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

This was an action of assumpsit, brought on the 24th August 1837, by the appellant against the appellees, in which the plaintiff declared for work and labor done, materials found; matters properly chargeable in account, and on an account stated. The following account was parcel of the declaration: York and Maryland Line Rail Road Company,

To James Wilson, DR.

________________________________________________________________________________
To 353 44/100 perches of masonry on the 72nd section	
  of the York and Maryland line rail road, at $ 2 50	
  per perch,	$ 883 60	
To 587 14/100 perches of masonry on the 74th section	
  of York and Maryland line rail road, at $ 2 50,	1,467 85	
To 1196 67/100 perches of masonry on the 86th section	
  York and Maryland line rail road, at $ 2 50,	2,991 67	
To 340 perches of masonry on the 86th section of	
  York and Maryland line rail road--Centrepier--at	
  $ 2 87,	980 20	
	
	$ 6,323 40	
By cash,	5,000   	
	
	$ 1,323 40	
To expenses in bailing water from the foundation of	
  the bridges and masonry work on the 72nd, 74th	
  and 86th sections of the York and Maryland line	
  rail road,	606 06	
	
	$ 1,929 46	
________________________________________________________________________________

The defendants pleaded [**2]  non-assumpsit, on which plea issue was joined, and the parties then filed in court the following agreement:

It is admitted, that the estimate or paper following, viz:

"The following estimate of water expenses on masonry, sections 72, 74 and 86, is presented:

________________________________________________________________________________
Bailing on sections 72 and 74,	$ 50   	
Coffer dam on 86th,	85   	
Extra digging on south abutment,	10   	
Bailing water on 86th,	50   	
Removing Coffer dam by change of pier,	25   	
	
Isaac Trimble.	$ 220   	
   Add to the aforegoing for money paid for hewing	
timber for bridge,	11 19	
	
	$ 231 19	
________________________________________________________________________________

Was executed by Isaac Trimble, and handed to the plaintiff in this cause, and that he meant it to be an estimate of the water expenses, as provided for by the contract, and that no notice was given to the plaintiff, before the said estimate was made of the design of the said Trimble to make it."

The plaintiff at the trial offered in evidence the following contracts:

"Articles of agreement made and concluded this 7th day of January, 1830, by and between James S. Wilson of the one part, and the York and Maryland line rail road company, by their agent for the time [**3]  being, Isaac Trimble, of the second part.

Whereas, the party of the first part hath agreed for, &c., to construct and complete, in a thorough and workmanlike manner, the masonry, which in the opinion of the engineer, may be required for the bridge abutments on section No. 86, of the said rail road, which masonry shall be constructed in the strongest and most substantial manner, the foundations to be of such strength and depth, and secured as the engineer may direct. All walls and other portions of said masonry, to be of such thickness, slope, heighth and length, as the engineer shall prescribe. No stone shall be used but such as has been approved by the engineer. The character of the masonry for bridge abutments, shall be what is commonly called "range course work," that is, the masonry shall be laid in courses of various heights, of not less than one foot each course, to extend horizontally in uniform thickness throughout the face of the abutments and wings, each stone to be rough hammered, unless with a natural face at top and bed, so as to lay with a firm and even bearing on those beneath; the points are not required to be vertical, but shall be well fitted and composed of [**4]  stones of corresponding shapes. No stone, unless by the authority of the engineer, shall be admitted into the abutments or wings, of less than the following dimensions--one foot in thickness, two feet in breadth, three feet in length, or containing four cubic feet, and the bed of every stone shall be greater than its rise; each stone shall break joint with those below and around it, and to be laid without underpinning, should the engineer so direct, who shall also at his discretion cause such headers to be introduced as will bind the whole firmly together. The whole to be laid without mortar. In case the engineer should deem it proper or expedient to change the character of the masonry of bridge abutments and wings, or any part of them, to what is called range rubble work, he may do so, and the same shall be constructed accordingly, by the party of the first part. The character of the masonry for gothic arches, common culverts and detached walls, shall be of the kind commonly called "range rubble work," laid dry. They shall be built in the most substantial manner, the stones breaking joints, bedded firmly, and binding on each other so as to unite the whole firmly and permanently together,  [**5]  to the satisfaction of the engineer. In case timber for foundations shall, in the opinion of the engineer be required, it shall be furnished and laid by the party of the first part, at the rate of     dollars per thousand, board measure. The said party of the first part, shall not let or transfer his contract without the consent of the said agent, and shall, upon his application, discharge from his employ any laborer or workman guilty of improper or disorderly conduct, &c.

Now this agreement witnesseth, that the said party of the first part, doth for himself, his heirs, executors and administrators, hereby covenant and agree with the said party of the second part, that he the said party of the first part shall and will, well and faithfully, in a mechanical and workmanlike manner, on or before the first day of June, construct and complete in the manner and on the conditions herein mentioned, all such abutments, wing walls, gothic arches, common culverts and detached walls, as said agent shall direct, on the aforesaid section of road, and if in the opinion of said agent, any gothic arches, common culverts or detached walls shall be required, in order to carry on the embankments [**6]  of said section, the same shall be begun and rapidly completed, when directions to that effect are given by the engineer. And the said party of the first part, shall remove all earth, gravel, stone or timber, or other materials, which in the opinion of the engineer may obstruct the free passage of the water to, under and from such bridges or culverts, as may be built in pursuance of these articles of agreement.

In consideration whereof, the said party of the second part, for and on behalf of the said company, doth hereby covenant and agree to, and with the said party of the first part, his heirs, executors and administrators, that the said company shall and will, for performing the work aforesaid, well and truly pay to the party of the first part, his heirs, executors or administrators, at the rate of two dollars and fifty cents for each and every perch of twenty-five cubic feet, which the bridge abutments may contain, and     dollars and     cents for each and every perch, which all gothic arches, common culverts or detached walls may contain. The whole to be measured by said agent or the engineer for the time being, whose measurement shall be final and conclusive. Payments [**7]  during the progress of the work shall be made at the discretion of the said agent or engineer, until the whole of the work hereby constructed shall be completed and accepted by the engineer, when the balance shall forthwith be paid to the said party of the first part, his heirs, executors or administrators. And the said party of the first part shall have the right to quarry and remove stone from any part of the land of the said rail road, provided in the opinion of the engineer for the time being, no interruption or danger is done to the graduation. And in case the said party of the first part takes stone from a section of which he is the contractor for graduation, the price of the masonry shall be reduced per cubic yard, by as much as he is paid per cubic yard on the excavation of such in his section. And it is further provided, that in case the said party of the first part, shall not, in the opinion of the engineer for the time being, well and truly perform all the covenants herein before stated and stipulated on his part, the said engineer may, at his discretion, dismiss him from the work; and that then, and in that event, the foregoing agreement shall become null and void, and [**8]  any balance for work done, which would have been due, the said party of the first part shall be forfeited, and become the right and property of the company. And moreover, if in the opinion of the engineer for the time being, the said party of the first part, shall not make such progress in the work, as to insure its completion by the specified time, the said agent or engineer for the time being, may, at his discretion, employ other help to hasten the completion of the masonry on said section, and the expense of such help shall be paid by the party first mentioned. In testimony whereof, the parties have set their hands and seals, the day and date first mentioned.

ISAAC TRIMBLE,     (Seal.)

JAMES S. WILSON, (Seal.)

It is hereby agreed and understood by the parties to this contract, that the foundation shall be prepared at the expense of the said J. S. Wilson, the bailings of water excepted, which shall be paid for by said company at the estimate of the engineer. It is moreover agreed, that for the construction on section 86, the said J. S. Wilson shall be paid at the rate of two dollars and eighty-seven cents. The character of masonry, the same as above described.

ISAAC [**9]  TRIMBLE,     (Seal.)

JAMES S. WILSON, (Seal.)

The second agreement for other sections 72 and 74, was like the first, except in the following clause at foot of the second, in place of that in the first contract.

It is fully understood and agreed by the parties to this contract, that the foundations shall be dug at the expense of the said J. S. Wilson, and the cost of bailing out water at the estimate of the engineer.     ISAAC TRIMBLE,

Witness,--Jo: STERETT.     JAMES S. WILSON."

The plaintiff further proved by John W. Collins, that he admeasured the said bridges, and that they contained in the whole, 2,478 22/100 perches, amounting to $ 6,323.40.

That said admeasurements were made so far as he was enabled to see the masonry work, by the actual application of the line, to the face of the work. That the depths of the foundation of the bridge, on the sixteenth section, were given him by the plaintiff upon the ground, that he measured all above the foundation by his line, except the thickness of the walls of the abutment and wings; that he obtained the thickness of the abutment and wings from a plan shewn by the plaintiff. That the wing walls are [**10]  curved; that he measured them by straight lines, and that this mode of measurement would give about the true contents of perches, though not perfectly and exact, but sufficiently so for an adjustment of the price.

The plaintiff further proved by Earlocker, a witness sworn on his behalf, that he was the superintendent of the plaintiff, in the erection of the said bridge from its foundation, for five months, when all the heavy masonry work was nearly completed. That Mr. Crittenden was the assistant engineer of the defendants, and one of the persons appointed by them to direct the construction of said bridge; that witness dug the foundations as superintendent; had them dug; that after they were completed, the witness and Mr. Crittenden measured the foundations, and averaged them; that the foundation of the abutment, was three feet six inches, of the east wing the same, of the west wing two feet and eleven inches, and the pier five feet. The witness further proved, that above the foundations he conducted the work according to the directions of Mr. Crittenden, and the plan furnished by the latter; that upon said plan, the thickness of the walls of the abutments, the wings and the pier [**11]  are marked, and the work was actually done according to said plan, so long as the witness remained thereon. The plaintiff further proved, that the depths of the foundation as aforesaid, and the thickness of the walls, were the same as those assumed by Mr. Collins in his said admeasurement, and that the plans to which Collins referred in his testimony, are the same that were handed to the said witness to govern his work, and that the work was finished according to the thickness marked thereon. The plaintiff further proved that he paid for water expenses or the bailing of water on the 72nd, 74th and 86th sections under his contracts, the sum of $ 619.56.

The object of the above proof was to show the cost and value of the work done in bailing water. The plaintiff then further proved by Earlocker, that he superintended the whole operation of bailing the water on the 86th section, and that he was there from the beginning to the end; that the hands were good and industrious; that they worked by night as well as day, in the fall and winter. That there was a flood while they were at work, which greatly increased the difficulty of the work. That Mr. Trimble, the engineer of the company,  [**12]  was not at work once, as he saw, during the continuance of the bailing. And also proved by said witness and Mr. Wilson, another witness, who stated he had great experience in such matters; that it would be impossible to tell from mere inspection of the bailing as it progressed, what would be the proper cost thereof; that the usual mode of ascertaining its cost, is by keeping the time of the hands.

The defendants then proved by Mr. Crain, an assistant engineer, in the service of the defendants, that he measured the bridges constructed by the plaintiff on the 72nd, 74th and 86th sections of the York and Maryland line rail road, and that the final estimate for masonry amounted to $ 5,516.03.

That he attended to the construction of said bridges while in progress. Had a good opportunity of seeing them, and believes his admeasurement correct; that he made it without giving any notice to the plaintiff, and returned it to Mr. Trimble, the chief engineer of the company at the time, and when the admeasurement was made, and by whom it was delivered to the defendants. As to the admeasurement of work called for by the contract, that it is the same admeasurement now produced in evidence,  [**13]  nor was there any other admeasurement of the said bridges made after they were completed, by any of the servants of the company, so far as witness knows; that he saw Mr. Trimble twice on the 86th section, at the time when the mason's work was going on, which made the bailing of the water necessary. That witness believes fifty dollars for water expenses on the 86th section to have been a sufficient compensation, and so informed Mr. Trimble. That witness was not always at the bridges on said sections. That as assistant engineer, he had various other works of a similar character to supervise, and other duties connected with the construction of the road to perform.

The defendants further offered in evidence an estimate of water expenses, amounting to $ 231.19.

And proved that it was in the hand-writing of, and signed by Mr. Trimble, then chief engineer at the time of making it under said contracts, which require that he should estimate the water expenses or expenses of bailing water; and further proved by Mr. Trimble that he could ascertain the cost thereof by observing the hands at work, by the quantity of water, the nature of the stream, and the character of the ground; that [**14]  when the hands worked at night, he sometimes directed an account of the expenses to be kept. That with regard to the bailing in question, he had seen them while employed in it. That he was there several times when Mr. Crain was not present. That he saw two or three hands bailing. He cannot say how often he saw them at work. Did not direct that an account should be kept of the hands time. Cannot state how many hands were employed at work in bailing, now for how long a time. That he is satisfied he had all the data necessary to make a correct estimate, having had recourse to the assistant engineers for information, as well as made his own observations as stated. Mr. Trimble also stated, that he did not give any notice to the plaintiff before he made the said estimate, and that the same was not made in the presence of the plaintiff; that he was the engineer of the company, and had the general superintendance of the construction of the road, and of making the contracts, and adjusting the claims relative thereto, and that Mr. Crain was one of his and the company's assistant engineers. The defendants also offered in evidence an account presented to the company by the plaintiff, when he was [**15]  endeavoring to procure a settlement of his claims against them.

The Balt. and Sus. Rail Road Co.

To James S. Wilson DR.

________________________________________________________________________________
Water expenses of Bridge Pier, section 86--Fessel's Mill.	
1826	Nov.--To 30 days bailing at pier, at	$ 1.25,	$ 37 50   	
	Dec.--To 32 days   "   at	$ 1.25,	40 00   	
1827	Jan.--To 50 days do. at abutment,	1.25,	62 50   	
	To 17 1/2 days   do.    "	"	21 87 1/2	
	To 7 days   do.   "	"	8 75   	
	Two pumps for pumping,		17 50   	
	Blacksmith's bill,		5 25   	
	Extra digging at wing of abutment		10 00   	
	Removing Coffer dam,		25 00   	
	Bill of finances on sections 72 and 74,		191 50   	
	
			419 87 1/2	
	Bill for hewing timber,		11 19   	
	
			431 06 1/2	
________________________________________________________________________________

The following in the handwriting of I. Trimble, Mr. Crain and Mr. Ewell, believe $ 50 will cover water expenses at bridge near Fessel's Mill, exclusive of Coffer dam.

And also on notice given by plaintiff, a letter from plaintiff to the directors of the company.

BALTIMORE, JUNE 3RD, 1837.

President and Directors of the Balt. & Sus. Rail Road Co.

Gentlemen,--I appeal [**16]  to you, please your honors, to take into consideration my case, as I have had a hard job, upon which I lost money. But notwithstanding, I pushed ahead and done the work to the satisfaction of the engineer, and in less than contract time. All I complain of is, that the water expenses were to have been paid, and now I am cut down, and owing to the hardness of the job, I am not able to stand it. I hope therefore it will please your honors to admit my bill. Mr. Trimble admits, that I ought to be paid eighty dollars for the Coffer dam of the pier, which is not in the bill. So please your honors, I submit it with your body.

Your obedient servant,

(Signed,)     JAMES S. WILSON.

________________________________________________________________________________
Bill of water expenses,	$ 419 87 1/2	
Hewing timber,	11 19    	
	
	431 06 1/2	
Coffer dam pier,	80 00   	
	
	$ 511 06 1/2	
________________________________________________________________________________

Whereupon the plaintiff prayed the court to instruct the jury--

1st. If the jury believe that Mr. Trimble was the engineer of the company at the time when the masonry of the bridges was completed under the contracts given in evidence, and that Mr. Trimble did not measure said bridges or either of them, but that the same were measured by Crain,  [**17]  assistant engineer, and that he returned the same to Trimble, as containing the number of perches of mason's work in said bridges, and that it is said, return which is now offered in evidence as the measurement of Mr. Trimble, then the same is not binding and conclusive upon the plaintiff, and the jury must allow to the plaintiff the number of perches which they may find from the evidence were contained in said bridges, unless they shall also find that the said measurement was returned by the said Crain to Trimble, the chief engineer of the defendants, and by him was adopted and delivered to the said defendants, under the contracts given in evidence by plaintiff as his own, and that in the making and adopting of the same as aforesaid, there was no fraud either on the part of the said assistant engineer or Trimble, or on the part of the defendants in this action.

2nd. If the jury believe from the evidence, that said admeasurement of masonry was made without previous notice thereof to the plaintiff, then the same is not conclusive upon him as evidence in this cause.

If the jury believe from the evidence, that no notice was given to the plaintiff previous to the said estimate [**18]  of the water expenses, so that he might have an opportunity of making his representations and suggestions to the said engineer Trimble, then said estimate is not binding and conclusive upon him.

4th. If the jury believe, that the company had notice, and was present by its own proper officers at the time when the admeasurement of the masonry, and the estimate of the water expenses, which have been offered in evidence by the defendants, were made, and that it was the duty of said officer, in his character of agent of the company, to protect it from any unjust claim or demand made against it, and to investigate all facts, having a tendency to promote the interest of the company, in regard to such admeasurements of masonry and estimate of water expenses. And if the jury further believe, that the plaintiff had no notice when said admeasurements and estimate were to be made, and no opportunity of appearing before the persons appointed to make them, to speak for himself, and make such suggestions, arguments and proof as he might have to offer, in his own behalf, then said admeasurement and estimate being thus made in the presence of the company, and out of the presence and without notice [**19]  to the defendants, he is not concluded by the same, and the jury are at liberty to allow to the plaintiff the number of perches which they may find from the evidence, were contained in said bridges, and also the true value of the water expenses.

6th. If the jury believe from the evidence, that the said estimate of water expenses are grossly inadequate, and that it was made under a gross mistake of the engineer, of the actual value of bailing, in consequence of his neglect to employ the usual and proper means of informing himself, as to said value, then said estimate is not conclusive upon the plaintiff in this action.

7th. If the jury believe from the evidence, that the water expenses were estimated by Trimble, upon the judgment of others, or that he had not an opportunity of exercising his own, upon the quality and value of the water expenses, or was grossly negligent of the employment of the means of information within his power, to ascertain the value of the said water expenses; then the said estimate is not conclusive, but the jury may allow for the same, as much as they were worth.

All which prayers the court (PURVIANCE, A. J.,) refused to grant, or any of them,  [**20]  but refused the whole, adding a modification to the 1st, 6th and 7th prayers, which modifications are as follows, to wit:

Modification to first prayer.--Unless they shall also find, that the said measurement was returned by the said Crain to Mr. Trimble, the chief engineer of the defendants, and by him was adopted, and delivered to the said defendants, under the contracts given in evidence, as his own, and that in the making and adopting of the same as aforesaid, there was no fraud either on the part of the said assistant engineer, or Mr. Trimble, or on the part of the defendants in this action.

Modification to sixth and seventh prayers of Plaintiff.--If the jury shall find from the evidence, that the engineer, Mr. Trimble, made a fair and bona fide estimate of the amount of the expense of bailing the water under the contracts, then the same is final and conclusive on the parties, although the jury should believe, that he formed an erroneous estimate of the real expense of said bailing, and that it actually cost the plaintiff a larger amount than is stated in his estimate.

1st. The defendants then prayed the court to instruct the jury, that under the written contracts [**21]  given in evidence by the plaintiff, the measurement of the engineer for the time being, of all masonry done under it by the plaintiff for the defendant, as given in evidence by the defendant, is in the absence of fraud on the part of the defendants or their engineer, final and conclusive.

2nd. That under the written contracts given in evidence by the plaintiff, the estimate of the engineer of the defendants, as to the amount to be paid by the defendants to the plaintiff, for bailing out water as given in evidence by the defendants, in the absence of any fraud on the part of the engineer, or on the part of the said company, is final and conclusive as to the amount to be paid by the defendants to the plaintiff on that account.

The plaintiff then prayed the court to instruct the jury, as a modification of the defendant's second prayer, that gross negligence on the part of Mr. Trimble, would in contemplation of law, amount to fraud, or want of bona fides.

The court granted the defendant's two prayers, and refused the plaintiff's prayer of modification, adding the following qualification thereto.

If the jury should think, that there was gross negligence on the part of [**22]  the engineer, in making the estimate of the water expenses under the contract, it is evidence, from which the jury may infer, that he did not act fairly and bona fide in making the said estimate.

The plaintiff excepted to the refusal of the court to grant his said several prayers, and to the modifications added to his said 1st, 6th and 7th prayers, and to the granting of the defendant's prayers, and to the refusal of the court to modify defendant's second prayer, and to the qualification of the plaintiff's prayer added by the court.

It was agreed that Mr. Crain, the assistant engineer to Mr. Trimble, and Mr. Crittenden, also an assistant engineer, were the persons appointed by the defendant to direct the construction of the bridges, the making of which was undertaken by the plaintiff, under his contracts aforesaid.

The verdict and judgment being for a less sum than the plaintiff claimed, he prosecuted the present appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Where the parties agreed that the work to be done by the plaintiff for the defendant, should be measured by an agent in the employment of the defendant, whose measurement should be final and conclusive, it is indispensable, if he can be procured, that such agent should himself measure the work, and the court erred in instructing the jury that the measurement of a third person would be conclusive, (in the absence of fraud,) provided it was adopted by the agent designated by the parties.

An agent, unless expressly authorized, has no right to delegate his authority to another, the maxim being, that delegatus non potest delegare.

In making the measurement, it is not necessary that the agent should give previous notice thereof to the parties, that they may be present at the performance of that duty.

But if such agent is to make an estimate of certain expenses to be allowed the plaintiff, and he proceeds to do so, in the absence of, and without notice to the plaintiff, the latter will not be bound by the estimate.

The estimate of the expenses, will not be affected by the inadequacy of the amount, or the neglect of the agent to employ the usual and proper means of informing himself upon the subject, provided his conduct is bona fide; a fact to be submitted to the jury.

Gross negligence does not in construction of law, amount to fraud, but is evidence to be left to the jury, from which they may infer fraud, or the want of bona fides.  

COUNSEL:
G. L. DULANY for the appellant, and

J. MASON CAMPBELL for the appellees.  

JUDGES:
The cause came on to be argued before BUCHANAN, C. J., STEPHEN, ARCHER, DORSEY AND CHAMBERS, J.  

OPINIONBY:
STEPHEN 

OPINION:

 [*71]  STEPHEN J., delivered [**23]  the opinion of the court.
This action was instituted in the court below, to recover compensation for work and labour, and services rendered by the appellant, in assisting to erect three bridges for the defendants. In the course of the trial, several prayers were made to the court by the plaintiff's counsel, for their instruction to the jury upon matters of law, all of which were refused by the court, accompanied however with modifications, in which they expressed their views of the law applicable to the several questions raised in said prayers.

 [*72]  It now becomes the duty of this court to say, whether in these opinions expressed by the court below, any error has been committed to the prejudice of the appellant, and for which he has a right to ask a reversal of their judgment. For the performance of the work to be done by the appellant, in assisting to erect the bridges upon the several sections mentioned and specified, special contracts were entered into, through the intervention of an agent, acting in behalf of the company on the one part, and the appellant on the other. In these contracts, after stipulating for the work to be done, and the prices to be paid therefor, there [**24]  is to be found the following agreement in reference to the masonry work on said bridges. "The whole to be measured by said agent, or the engineer for the time being, whose measurement shall be final and conclusive." There is also annexed to the agreement the following stipulation. "It is hereby agreed and understood by the parties to this contract, that the foundation shall be prepared at the expense of the said James S. Wilson, the bailing of water excepted, which shall be paid for by said company, at the estimate of the engineer."
In the course of the trial it was proved to the jury, that the masonry work of the bridges was admeasured not by Trimble, principal engineer for the time being, but by a Mr. Crain, an assistant engineer of the company in the absence of Mr. Trimble, and without any notice to the plaintiff, and by him was delivered to Trimble, by whom it was delivered to the defendants, as the admeasurement of work called for by the contract. The defendants also gave in evidence an estimate of water expenses made by Trimble, the chief engineer, who proved that he made the same in the absence of the plaintiff, and without giving him notice, so that [**25]  he might have attended if he had thought proper to do so. After the plaintiff had offered the evidence on his part, consisting of the special agreements relative to the execution of the work to be done by him, and fixing the rate of compensation to be paid for the same, and some other proof not material to be stated for the purposes of this opinion, he prayed 

 [*73]  the court to instruct the jury, that if the jury believe, that Mr. Trimble was the engineer of the company, when the masonry of the bridges was completed under the contracts given in evidence, and that Mr. Trimble did not measure said bridges, or either of them, but that the same were measured by Crain, assistant engineer, and that he returned the same to Trimble, as containing the number of perches of mason's work in said bridges, and that it is said return which is now offered in evidence as the measurement of Mr. Trimble, then the same is not binding and conclusive upon the plaintiff, and the jury must allow to the plaintiff the number of perches which they may find from the evidence were contained in said bridges. This prayer was refused by the court, who added the following modification: "unless [**26]  they shall also find, that the said measurement was returned by the said Crain to Trimble, the chief engineer of the defendants, and by him was adopted and delivered to the said defendants, under the contracts given in evidence by the plaintiff as his own, and that in the making and adopting the same as aforesaid, there was no fraud either on the part of the said assistant engineer, or Mr. Trimble, or on the part of the defendants in this action."
We think the court committed no error in rejecting this prayer of the plaintiff, because by the terms of the contract, a certain mode of ascertaining the number of perches contained in the mason's work, was fixed upon by the parties, as the rule of evidence, and the plaintiff had no right to resort to any other, until after proper exertions on his part, he had made an ineffectual attempt to procure it. It was his duty to have applied to the engineer to make the measurement, before any other evidence would have been admissible as a substitute for such proof. For this principle see 9 Peters 327. But we think that there was error in the opinion of the court contained in their modification of the said prayer, because [**27]  according to the true intent and meaning of the contract of the parties we think that to Trimble, or the chief engineer for the time being, was confided the right and duty, of making the measurement of the masonry work, and that by the express terms of the contract, 

 [*74]  power was given to no other person for that purpose. In his skill and integrity, or the person who might succeed him in the responsible station which he occupied, full and implicit confidence might have been reposed, which the plaintiff at least might for valid reasons, be unwilling tor epose in a different and subordinate officer, and the execution of the trust by a different person, was an assumption of power, not warranted we think by the express terms of the contract.
That an agent has no power to delegate his authority to another, unless expressly authorised, see 2 Kent's Com., where he says: "an agent ordinarily, and without express authority, has not power to employ a sub-agent to do the business, without the knowledge and consent of his principal. The maxim is, that delegatus non potest delegare, and the agency, is generally a personal trust and confidence, which cannot be delegated; for [**28]  the principal employs the agent, from the opinion which he has of his personal skill and integrity, and the latter has no right to turn his principal over to another, of whom he knows nothing."
The plaintiff also prayed the court to instruct the jury, that if they believe from the evidence, that said admeasurement of masonry was made without previous notice thereof to the plaintiff, then the same is not conclusive upon his as evidence in this cause. This prayer we think was properly refused by the court, because in performing that duty, his judgment could not have been influenced or enlightened by the production of evidence on the part of the plaintiff, and the purposes of justice did not require that the plaintiff should have been present when that part of the trust confided to the engineer was executed.
The plaintiff further prayed the court to instruct the jury, that if they believed from the evidence, that no notice was given to the plaintiff previous to the said estimate of the water expenses, so that he might have an opportunity of making his representations and suggestions to the said engineer Trimble, then said estimate is not binding and conclusive upon him. In rejecting [**29]  this prayer, we think the court below erred. If 

 [*75]  notice had been given it is fair to presume, that evidence might have been adduced material to a right decision, as to the amount of compensation proper to be allowed to the plaintiff for his services in bailing the water under the contract made by him with the defendants. The amount of the expenses incurred by him in performing that operation it was reasonable and proper that he should have had an opportunity of submitting to the consideration of the engineer, together with such remarks and observations as he might have thought proper to make upon the subject. Such information, although not binding and obligatory upon him in making the estimate, might at least have had a beneficial tendency in guiding his judgment to a fair, just and accurate result. In coming to the conclusion we are happy to find, that we are sustained not only by what we deem the principles of right and justice, but by the authority of adjudged cases upon similar subjects. In the case of awards, it is an established rule that notice is necessary to be given to the parties, so that they may have an opportunity of adducing their proofs, before a decision [**30]  is made upon the matters submitted, and although this may not be considered a case of that description, yet the reason of the rule would seem to be not inapplicable. That notice would be necessary in a case like the present, seems to have been the opinion of the court in 6 Cow. 106. In that case, rent was due from a tenant to his landlord, and it was agreed, that a shearing machine should be taken in part payment of the rent, at a valuation or appraisement to be made by a certain individual appointed by the parties; the appraisement was made in the absence of the landlord, and without notice to him, and the court say, the appraisal was irregular, and not conclusive on the defendant. Both parties should have had notice, so that an opportunity might be afforded to submit their remarks to the appraiser, and adduce proof if deemed necessary. The plainest dictates of natural justice require, that no man should be condemned unheard. The right to notice was implied in the agreement to submit, and for want of notice the court held the appraisement a nullity. In 5 Wend. 521, this decision of 

 [*76]  the court in 6 Cowen is adverted to, and the reasonableness [**31]  and propriety of the necessity of notice is admitted as a general rule, sanctioned both by reason and good sense, if it was to be considered as an appraisement; and the court only decide, that the rule was improperly applied in that case, if it was to be considered as an award, which they thought it was not. Speaking of the propriety of notice, the court say: "in the opinion delivered it was said, (though not necessary to the decision of the cause,) that the appraisement was void for want of notice to the person to be charged with it. This proposition is certainly consonant to reason and good sense, and is well established as a principle of equity; as to the appraisement referred to in Peters vs. Newkirk, it could hardly be dignified with the name of an award. Even if it should be so considered, it was not made the foundation of an action. It seems to us however, there is an essential difference between an award upon matters in controversy between parties, and a bare appraisement of a chattel."
The plaintiff then prayed the court to instruct the jury, that if they believe the company had notice, and was present by its own proper officers at the time when the admeasurement of the [**32]  masonry, and the estimate of the water expenses, which have been offered in evidence by the defendants, were made, and that it was the duty of said officer, in his character of agent of the company, to protect it from any unjust claim or demand made against it, and to investigate all facts having a tendency to promote the interests of the company in regard to such admeasurement of masonry, and estimate of water expenses, and if the jury further believe, that the plaintiff had no notice when said admeasurement and estimates were to be made, and no opportunity of appearing before the person appointed to make them, to speak for himself and make such suggestions, arguments and proofs as he might have to offer in his own behalf, then said admeasurement and estimate, being thus made in the presence of the company, and out of the presence and without notice to the plaintiff, he is not concluded by the same, and the jury are at liberty to allow to the plaintiff the 

 [*77]  number of perches, which they may find from the evidence were contained in said bridges, and also the true value of the water expenses. We think the court below committed no error in rejecting this prayer, because it [**33]  insists upon notice, both as to the admeasurement of the masonry, and the estimate of the water expenses, and requested the court to tell the jury, that they were at liberty, upon finding the facts therein stated to be true, to give their verdict upon other evidence than that which had been agreed upon by the parties, without any effort being made, or steps taken by the plaintiff, to procure the kind of proof which had been agreed upon by the contracts; all other evidence being inadmissible without an unavailing effort on the part of the plaintiff to procure the stipulated proof.
The plaintiff further prayed the court to instruct the jury, that if they believed from the evidence, that the said estimate of water expenses was grossly inadequate, and that it was made under a gross mistake of the engineer, of the actual value of the water bailing, in consequence of his neglect to employ the usual and proper means of informing himself as to said value, then said estimate is not conclusive upon the plaintiff in this action. This prayer also we think was properly rejected by the court, because it would not follow from the facts stated, that the estimate would not be binding, unless in making [**34]  it, it was not done bona fide, and that was a fact which ought to have been submitted to the jury; for this principle see 15 Wend. 90, when the court say, that a valuation made by a person selected by the parties will be binding and conclusive, unless made in bad faith, and whether so made or not, was a fact which the jury alone were competent to find.
We think however that there was error in the modifications made by the court to to this prayer, when they say, if the jury shall find from the evidence, that the engineer Mr. Trimble, made a fair and bona fide estimate of the amount of expense of bailing the water under the contract; then the same is final and conclusive on the parties, although the jury should believe, that he formed an erroneous estimate of the real expense 

 [*78]  of said bailing, and that it actually cost the plaintiff a larger amount than is stated in his estimate; we think the court erred in the instruction contained in this modification, because they say, that the estimate would be final and conclusive if made bona fide, although erroneous, and this although no notice was given to the plaintiff to enable him to be present when [**35]  it was made, which notice we think he ought to have had.
The plaintiff further prayed the opinion of the court, and their instruction to the jury, that if they believed from the evidence, that the water expenses were estimated by Trimble, upon the judgment of others, or that he had not an opportunity of exercising his own upon the quantity or value of the water expenses, or was grossly negligent of the employment of the means of information within his power, to ascertain the value of said water expenses; then the said estimate is not conclusive, but the jury may allow for the same, as much as they were worth. For the reasons already given, we think the court were right in rejecting this prayer, because the plaintiff asks the court to leave it to the jury to make the estimate upon other evidence than that stipulated by the parties, without his shewing that the proper evidence was not attainable, after he had used his proper and reasonable endeavors to procure the same without effect. To this prayer the court made the same modification as that made to the sixth, which we think was erroneous; because they say the estimate made by Trimble, would be binding and conclusive upon [**36]  the plaintiff, if made bona fide, although no notice had been given, which for the reasons already stated, we think he ought to have had before the estimate was made.
The defendants then prayed the court to instruct the jury, that under the written contracts given in evidence by the plaintiff, the measurement of the engineer for the time being, of all masonry done under them by the plaintiff for the defendant, as given in evidence by the defendant, is in the absence of fraud on the part of the engineer, or on the part of the defendants, final and conclusive. Secondly, that under the written contracts given in evidence by the plaintiff, the 

 [*79]  estimate of the engineer of the defendants, as to the amount to be paid by the defendants to the plaintiff for bailing of water, as given in evidence by the defendants, in the absence of any fraud on his part, or on the part of the said company, is final and conclusive, as to the amount to be paid by the defendants to the plaintiff on that account.
The plaintiff then prayed the court to instruct the jury, as a modification of the defendants' second prayer, that gross negligence on the part of Mr. Trimble, would in contemplation [**37]  of law, amount to fraud, or want of bona fides. The court granted the defendants two prayers, and refused the plaintiff's prayer of modification, adding a qualification thereto, which is as follows, to wit: "if the jury should think, that there was gross negligence on the part of the engineer, in making the estimate of the water expenses under the contracts, it is evidence from which the jury may infer, that he did not act fairly and bona fide in making the said estimate."
We think the court erred in granting the prayers made by the defendants, because in the first, the measurement of the masonry according to the evidence, was not made by Trimble, which according to the true construction of the contract ought to have been made by him, and yet the court say, that in the absence of fraud the same would be final and conclusive; and in the second there was error, because the court say, that in the absence of fraud, the estimate of the water expenses made by the engineer, would be final and conclusive, although no notice was given to the plaintiff before the same was made. But we think the court were right in rejecting the plaintiff's prayer of modification of the defendant's [**38]  second prayer, and were right in their qualification of the same, because we do not think, that gross negligence would in construction of law amount to fraud, but was only evidence to be left to the jury, from which they might infer fraud, or the want of bona fides in the making of said estimate.
In 1 Liver on Prin. and Agent, 342, a case is referred to, where an action was brought against the defendant, for not insuring according to orders, and L. Mansfield, in delivering 

 [*80]  the opinion of the court said, to maintain this action, the defendant must be guilty either of a breach of orders, gross negligence or fraud, treating them as distinct grounds of action, and not as importing in point of law the same thing. We think that the judgment of the court below must be reversed, and a procedendo ordered.
JUDGMENT REVERSED.  

34 of 47 DOCUMENTS 

DANIEL WARFIELD and SAMUEL MACTIER, vs. SUSANNA E. WALTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 80; 1839 Md. LEXIS 30 

December, 1839, Decided 

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

This was an action of trespass de bonis asportatis, commenced at January term 1837, by the appellee against the appellants. The declaration was for, that the defendants on the 25th July 1836, took and carried away the goods, &c. to wit, &c. whereby, &c. for a long time, to wit, for the space of, &c. the plaintiff was deprived of the profitable use thereof, and other wrongs then and there did. The defendants pleaded not guilty. The cause was tried in the county court at September term 1838.

FIRST EXCEPTION.--At the trial, the plaintiff to support the issue on her part, gave in evidence to the jury, a bill of sale from one Hiram C. Walter to the plaintiff, which had been duly acknowledged and recorded, dated May 16th 1835, in which the grantor therein named, for a valuable consideration, conveyed to the plaintiff a variety of articles of personal property. This bill of sale, which contained a warranty of title, recited that a mortgage of the same goods had been executed previously by the grantor to the defendants, to whose lien for the money due upon the mortgage, the operation of the bill of sale is expressly made subject.

And then [**2]  called the said Hiram, the grantor in the said bill of sale, as a witness, offering to prove by him, the taking of the property mentioned in the declaration, and the amount of injury sustained by her. The defendants objected to the said Hiram, being sworn as a witness in the cause, because of his liability to warrant, and defend the title of the plaintiff, under the said bill of sale. The court, (ARCHER, C. J., and PURVIANCE, A. J.,) overruled the objection, and permitted the said Hiram to be sworn as a witness. The defendants excepted.

SECOND EXCEPTION.--After the evidence mentioned in the last bill of exceptions had been given, the plaintiff gave evidence by Hiram C. Walter, mentioned therein, of the value of the property in the declaration mentioned; her counsel then proceeded to ask the said Hiram, as to the value of the use of the said property, in the interval between the alleged trespass, and commencement of the action, to which question the defendants by their counsel objected, on the ground, that the whole compensation to which the plaintiff was entitled for the property, was its value, and not the value of its use also, unless it could be shewn, that it was of some special [**3]  or peculiar value in use to her, or that she sustained some special damage for the want of it. This objection the court overruled, and permitted the question to be asked. The defendants excepted.

THIRD EXCEPTION.--After the evidence in the two preceding bills of exceptions had been given, the plaintiff proceeded to give in evidence, the value of the use of the property in the declaration mentioned, during the interval between the alleged trespass, and the commencement of this action. She then, in order to prove the trespass, gave in evidence the following record of the proceedings in an action of replevin, brought by the defendants against John Walter, which shewed that an action of replevin was commenced on the 25th day of July 1836, by the said Daniel Warfield and Samuel Mactier, for one mill wagon and its appurtenances, two grey and two sorrel horses, and a grey stallion, declared for as their property and detained by John Walter. The property was replevied and delivered to the plaintiffs in that action on the 25th July 1836. The defendant John Walter, pleaded non cepit; and property in Susanna E. Walter. The plaintiff joined issue on the first plea, and replied property in [**4]  themselves to the second plea, on which issue was joined. The jury found a verdict, that the goods, &c., were not taken by the defendant, and property on the said Susanna E. Walter and not in the plaintiffs. On this judgment was rendered on the 15th June 1838, against the plaintiffs, and that John Walter have a return of the goods and chattels, &c.

The plaintiff then called John Walter, and proved by him, that the property taken under the said replevin, was the same in the declaration mentioned; that it was in his possession, as the agent of the plaintiff, when it was replevied; that the now plaintiff was notified of the proceeding, and that the action was defended under her direction and at her expense, and there the plaintiff closed her proof.

The defendants then to support the issue on their part, offered to read in evidence to the jury, the mortgage referred to in the first exception, dated the 14th of July 1834, executed by the mortgagor Hiram C. Waters, to secure to the defendants, the payment of the sum of $ 570, within eighteen months of its date.

To this the plaintiff objected, because the record of the replevin case above stated, was conclusive evidence in [**5]  this case, as to the title to the property, and offered to give the said record, and the testimony of John Walter, above set out in evidence to the jury as conclusive of the question of property, to which the defendants counsel objected, because the said now plaintiff was not a party to the record in the action of the replevin, and because the issues in the two cases were different, but the court (ARCHER, C. J., and PURVIANCE, A. J.,) decided, that the now plaintiff was substantially a party to the record in the action of replevin, and that the issues were substantially the same, and refused to permit the defendants to read to the jury, the said mortgage, and permitted the plaintiff to give his said evidence to the jury, as conclusive upon the question of property, if the jury believe the facts aforesaid. The defendants excepted.

FOURTH EXCEPTION.--All the evidence mentioned in the three preceding bills of exceptions having been given, the defendants moved the court to direct the jury, that the plaintiff was not entitled to recover.

1st. Because the record in the action of replevin shews, that the now plaintiff obtained in that action, the property which is the subject of [**6]  this action, or its equivalent.

2nd. Because an action of trespass will not lie, for taking goods under a replevin regularly issued, provided, the goods are those designed to be replevied, and they are taken from the custody of the party against whom the writ is directed, unless they are shewn to be the property of some other person, and because by the evidence in this case, and the decision of this court thereon, Susanna Walter and John Walter are identified.

This motion the court overruled, and the defendants excepted.

The verdict and judgment being in favor of the plaintiff below, the defendants brought this appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

If a bill of sale of personal property, with a warranty of title, recites a mortgage of the same property previously executed by the grantor, and is made subject to its operation, the grantee in the bill of sale could not sustain an action for a breach of warranty, upon the ground of a paramount title in the mortgagee, and therefore in an action by the grantee in the bill of sale for a trespass upon the property conveyed, the grantor may be called as a witness for the plaintiff, he having no interest in the result of the suit.

In an action of trespass for taking away, and depriving the plaintiff of the use of his property, it is competent for the plaintiff to prove the value of the use, during the period he was deprived of the possession.

If to a plea of property in an action of replevin, the plaintiff replies property in himself, and issue is joined upon the replication; the onus is upon him, and he must support his replication by proof.

The plea of property in a third person, does not involve the question of such person's title, having no other effect than that of casting upon the plaintiff the onus of pleading and proving property in himself, and therefore in an action of trespass upon the same property, brought by such third person against the parties who were the plaintiffs in the replevin in which the verdict was for the defendant, the record of the replevin is not conclusive evidence of the plaintiff's right to the property.

Trespass on the case, and not trespass vi et armis, is the proper remedy, when an injury to a person or his property, is occasioned by the regular process of a court of competent jurisdiction, maliciously sued out.  

COUNSEL:
By R. JOHNSON for the appellants, and

By NELSON and DAVID STEWART for the appellees.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*84]  STEPHEN, J., delivered the opinion of the court.
We think the court below were right in the opinions given by them in the first and second exceptions; but that they erred in those expressed in the third and fourth.
In the first exception, Hiram C. Walter was offered as a witness by the plaintiff,  [**7]  to prove the taking of the property mentioned in the declaration, and the amount of injury sustained by her; but the defendants objected to his being sworn as a witness in the cause, because of his liability to warrant and defend the title of the plaintiff under the said bill of sale. This objection was overruled by the court, and the witness was permitted to be sworn. In this opinion we can perceive no error. The bill of sale to the plaintiff, recognizes the mortgage made by the witness to the defendants, and was to be taken subject to it. The plaintiff therefore could not sustain an action for a breach of warranty, upon the ground of a par-amount title in the defendants; because the recital of the mortgage in the bill of sale, and the acceptance of the title by the plaintiff, subject to its operation, necessarily excepted the title of the defendants under the mortgage, from the effect and operation of such warranty. The witness therefore had no interest in the result of the suit, and the court rightfully decided that he was competent to testify in the action.
The court we think were also right in the opinion given by them in the second exception. The fact which the witness was [**8]  called to prove, was the very gravamen or, ground of the plaintiff's action, and the objection made by the defendant's counsel to the propounding of the question, would, we think, have been waived, if the cause of action, as stated in the declaration, had been carefully adverted to. The pleadings show that the suit was not brought to recover the entire value of the property, but damages for the temporary loss of the use of it. 

 [*85]  The testimony which the plaintiff offered to give by the witness, was therefore properly received by the court, as it went to prove the value of the use of the property, during the interval of time which had elapsed between the taking of it by the defendants, and the commencement of the action; the loss of which use by the plaintiff, being the injury of which she complained, and to recover damages for which her action had been instituted.
We think the court below erred in the opinion delivered by them in the third exception, as to the binding and conclusive effect of the judgment in the replevin suit, in support of the plaintiff's title in this action to the goods embraced in that suit. In support of this position, see Cullum vs. Bevans, 6 H. & J. 469, [**9]  where the court say--"no principle in the law seems more universal or better established, than that the onus probandi rests on the party who maintains the affirmative side of the issue. On what then is the issue joined in this case? It is not on the defendants' plea of property, but upon the replication filed by the plaintiff, asserting the right of property to be in himself, and tendering an issue on that point. He must therefore support his allegation by proof. It was therefore the plaintiff's title to the property in dispute which was put in issue by the pleadings; and upon which the jury had to decide by their verdict, and not the title of Susanna E. Walter, the pleading of property in whom by the defendant, only having had the effect of casting upon the plaintiff the onus of pleading and proving the property in himself, and not involving within the issue any trial of a title to the property in her, which could give to the verdict of the jury in that action a conclusive effect in establishing such title.
We think also that the court erred in refusing to permit the defendants to read to the jury the mortgage from Hiram C. Walter to them, which was prior in point [**10]  of time to the bill of sale to the plaintiff, and which bill of sale was taken by the plaintiff subject to its operation.
We do not concur with the court below, in the opinion given by them, in the fourth and last exception. In suing in 

 [*86]  trespass, we think that the plaintiff below clearly misconceived her remedy; and that to redress the injury of which she complained, trespass on the case, and not trespass vi et armis, was the proper action. The goods were taken under legal process, specifically describing them, out of the possession of the defendant, against whom the process issued; and in such case the law is clear, that case, and not trespass, is the proper remedy. 2 Saun. Plea. & Evid. 651, declares--"whenever an injury to a person, or his property, is occasioned by regular process of a court of competent jurisdiction, maliciously adopted, the remedy is by an action on the case, and trespass does not lie." In support of this principle Saunders refers to 3 Term. R. 185, where Lord Kenyon says--"If a party be arrested without any cause of action, he has his remedy by an action on the case for maliciously holding him to bail. But it [**11]  is incomprehensible to say, that a person shall be considered as a trespasser, who acts under the process of the court." The same doctrine may be found in 2 Saun. P. & E. 515, where he says, "trespass is the only remedy for an illegal imprisonment when not done under color of legal process." "If the imprisonment took place under color of a legal proceeding, the plaintiff's only remedy is by an action on the case for the malice, if indeed there was malice."
The action being misconceived, the only question remaining to be considered is the right of the defendant to make the objection under the pleadings in this case, and that he had such right is, we think, clear, both upon principle and authority. Gould in his treatise on the principles of pleading in civil actions, 289, says--"That the action is misconceived is pleadable in abatement. As if assumpsit is brought where account is the only proper remedy; or trespass where case is the proper action. But a plea in abatement for this cause is unnecessary and unusual; for if the mistake appears upon the face of the declaration, it is fatal on demurrer; and if not, advantage may be taken of it under the general issue." Upon [**12]  the whole, we are of opinion that there is error in the judgment in the court below, and that the same must be reversed.
JUDGMENT REVERSED.  

35 of 47 DOCUMENTS 

ELIZABETH COMEGYS, Adm'rx of WILLIAM COMEGYS, vs. THE STATE OF MARYLAND, use of ELLEN DYCKES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 175; 1838 Md. LEXIS 19 

December, 1838, Decided 

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

THIS was an action of debt, brought by the appellee against the appellant on the bond of Joseph Dyckes, Matthew French and William Comegys, the intestate of the defendant below. The bond was dated 21st May, 1818, and recited that Joseph Dyckes "hath been appointed by the honourable the chancellor of Maryland, trustee for Ellen Dyckes, wife of James Dyckes, and the children of the said James and Ellen, which they now, or may hereafter have. Now the condition, &c. is, that if the above bounden Joseph Dyckes, do and shall well and faithfully perform the trust reposed in him as aforesaid, and shall well and truly invest or hold the property or money committed to his care, in trust for the sole and separate use of the said Ellen, wife of James, during her natural life, and afterwards for the use and benefit of all and every the child or children which the said James now hath, or may hereafter have by the said Ellen, in equal proportions, share and share alike, then," &c.

To a declaration on the penal part of this bond, the defendant pleaded:

1st. That the supposed writing obligatory was never accepted by the state of Maryland, otherwise [**2]  than that one James Shaw, wrote upon the same, the words, "Bond approved, 3d August, 1818, James Shaw," and that William Kilty, then chancellor of Maryland, wrote upon the same, the words, "the above confirmed. Wm. Kilty, Chan. 8th, 1818." And the said defendant saith that neither the said James Shaw, nor the said William Kilty, was the agent of the state of Maryland, to accept of the said bond, or authorized so to do; and so the said defendant saith, that the said supposed writing obligatory is not the deed of the said William Comegys, and this, &c. The plea was verified by the oath of the defendant.

2d. That the said Joseph Dyckes, hitherto, hath well and faithfully observed, performed, fulfilled, and kept, all and singular the matters and things in the condition of the said supposed writing obligatory mentioned and contained, which he according to the said condition, ought to have observed, performed, fulfilled, and kept, and this, &c.

3d. That no trust was ever actually reposed in the said Joseph Dyckes, and that no property or money was ever committed to his care, in trust for the sole and separate use of Ellen Dyckes, wife of James Dyckes, during her natural life, and [**3]  afterwards for the use and benefit of all and every child or children which the said James Dyckes had or might have by the said Ellen, and this, &c.

To those pleas the plaintiff replied as follows:

To the first plea, that after the making of the said writing obligatory, and before the impetration of the original writ in this cause, to wit: at, &c. the said writing obligatory was accepted by the said state as the deed of the said William, and this the said state prays may be inquired of by the country, &c. To the second and third pleas, that after the making of the said writing obligatory, and before the impetration of the original writ in this cause, to wit, on the 23d May, 1818, at, &c. the said Joseph Dyckes received from a certain Samuel I. Donaldson, trustee for the sale of the property mentioned in certain proceedings in the high court of Chancery of Maryland, wherein Luke Tiernan was complainant, and James Dyckes and others defendants, the sum of $ 1430 12, for the use of said Ellen Dyckes during her life, and after her death for the use of the children of the said Ellen and James Dyckes, which sum of money he the said Joseph, ought to have applied to the use and for [**4]  the benefit of the said Ellen during her life, but the said Joseph regardless of his duty as trustee as aforesaid, the said sum of money so received by him as trustee as aforesaid, hath altogether refused and neglected to apply to the use and for the benefit of the said Ellen, as he was bound to do, and so the said state saith, that the said Joseph hath not faithfully performed and executed the trust reposed in him as aforesaid, and this the said state is ready to verify.

Issue was joined on the first plea.

To the replication to the second and third pleas, the defendant rejoined, that the said Joseph Dyckes did not receive the sum of money in the said plea by way of replication mentioned, or any other sum of money for the use of the said Ellen Dyckes during her life, and after her death for the use of the said children of the said Ellen and James Dyckes, in manner and form as in the said last mentioned plea by way of replication is alleged.

Issue was also joined on this rejoinder.

EXCEPTION.--At the trial of the cause, the plaintiff to support the issue on her part, gave in evidence a copy of the bond declared on; and also the record of the proceedings in chancery [**5]  in a certain cause, in which Luke Tiernan was complainant, and James Dyckes and Ellen his wife, and their infant children, and George Schroeder, trustee for the said Ellen, were defendants. The object of the bill, was to sell certain real property, which James Dyckes had mortgaged to Luke Tiernan, on the 26th February, 1813, and subsequently assigned to George Schroeder, in trust for his wife Ellen, for life, and after her death for the benefit of her infant children. The adult defendants answered the bill by a joint answer, and submitting to a sale prayed that Schroeder might be discharged from his trust, and a new trustee appointed. The infants who were non-residents were made parties by publication; a sale was decreed on the 6th January, 1818, and a trustee appointed to carry it into effect. On the 3d March the trustee reported the sale, as made on the 28th February to Joseph Dyckes for $ 1850. This sale was finally ratified and confirmed. On the 16th May, 1818, the auditor of the court made his report, upon the distribution of the proceeds of sales; awarding $ 1430 to the use of Ellen Dyckes for life, with remainder to her children. This account was confirmed, and Joseph Dyckes [**6]  was appointed trustee in the place of Schroeder. Dyckes was ordered to give bond, in the penalty of $ 2860. Dyckes, with Matthew French and William Comegys as his sureties, gave bond, the 21st May, 1818, which was approved on the 3d August, 1818, as stated in the defendant's first plea to this action. It appeared that on the 23d May, 1818, Joseph Dyckes, the new trustee for Ellen and her children, passed his receipt to the trustee who made the sale for the amount awarded under the audit of 16th May, 1818, acknowledging in his receipt that he had been appointed trustee for them. Upon this proof, the defendant prayed the court to instruct the jury that the plaintiff is not entitled to recover.

1st. Because the chancellor had no authority or jurisdiction to remove George Schroeder from his trust, to which he was appointed by deed, and appoint a successor, unless upon a proceeding instituted for that purpose, in which all the parties interested have an opportunity of being heard, and in the proceeding offered in evidence, no such opportunity was afforded to the infant cestui que trusts.

2d. Because the chancellor had no authority or jurisdiction, to require, accept, or approve [**7]  a bond, given under the circumstances under which the bond appears from the evidence in the cause to have been given.

3d. Because the bond was not approved, or pretended to be approved, until after the money which is alleged in the plaintiff's pleadings to have been received by the trustee, had been actually paid to him, and consequently the money so paid, was received by him before he was trustee, and when he had no right to receive the same, so as to charge the sureties on his official bond as trustee by the receipt thereof.

4th. Because the record given in evidence, shews a case wherein the chancellor had no jurisdiction to pass a decree for the following reasons, to wit:

1st. Because the infant defendants in the cause contained in the said record were not summoned, and did not appear by guardian in the manner prescribed by the act of assembly in such case made and provided.

2d. Because the said record is of a cause of which a foreclosure or sale of land is applied for, in which infants were interested, and a decree for the sale of the said lands made, although no bond was given to refund to the said infants the whole or any portion of the money raised by such [**8]  sale, in case the said infants, within one year after their arrival at age, should make appear to the satisfaction of the chancellor that there was fraud in obtaining the mortgage deed, or that no deed was really executed, or that the debt claimed, or so much as decreed to be paid, was not really due, or any bond which was, or was intended to be, a compliance with the provisions of the act of 1785, ch. 72, sec. 2.

3d. Because no proof was offered in said cause of the complainant's debt.

Which directions the court refused to give. The defendant excepted.

The defendant then moved the court to instruct the jury, that the plaintiff is not entitled to the principal sum of $ 1430 12, but is merely entitled to the income or revenue accruing from said sum of $ 1430 12, up to the institution of the suit.

The plaintiff's counsel then moved the court to instruct the jury, that the plaintiff is entitled to their verdict, for the amount of arrearages of income on the fund received by Joseph Dyckes, due at the time when this suit was brought, with interest on each instalment of annual income from the day it became due until this time.

The defendant's counsel prayed the court [**9]  to instruct the jury, that they may find such an amount of interest as they may deem it proper to allow against the defendant, in view of the lapse of time since the bond in suit was given, and of the absence of all proof to shew any demand made by the plaintiff on the principal or sureties for the payment of said income or revenue, from the date of said bond until the writ in this case was impetrated.

The court (Purviance, A. J.) refused the said last mentioned prayer of the defendant, and granted the prayer of the plaintiff. The defendant excepted to the refusal of the court to grant her said prayers above stated to have been refused, and to the granting by the court of the said prayer of the plaintiff.

The verdict and judgment of the court below being for the plaintiff, the defendant prayed the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In respect to non-resident infant defendants to a bill in chancery, the acts of assembly of this state, have substituted the publication for the summons, in the discretion of the chancellor, and give the former all the efficacy of the latter, without any appearance by guardian.

Where the jurisdiction of the chancellor to decree upon the subject matter of the bill is clear, his omission to comply with the requisitions of an act of assembly, would be error, for which the decree might be reversed upon appeal, though such omission cannot affect the jurisdiction of the court.

Nor does the jurisdiction depend upon the sufficiency or insufficiency of the proof, that also being a question to be decided on appeal by some of the parties to the suit.

Trustees are generally removed by proceedings instituted for that purpose; but cases may occur in which it would be proper to remove a trustee when the bill was filed for a different object, though for an erroneous exercise of the power of removal, the remedy is by appeal alone.

The bond of a trustee, conditioned to invest or hold the property or money committed to his care, is liable for money in his hands at the time of its approval by the chancellor, and money paid to him before, will, in the absence of evidence to the contrary, be presumed to be in his hands at that time.

It is not necessary for the purpose of charging the bond to shew an order of the court for the payment of the money to the trustee--whether given to him in virtue of an order or not, the bond is equally responsible.

The liability of a trustee to pay interest depends upon the character of the trust, and the circumstances attending its administration. Where a trustee holds money in his hands for fifteen years, without furnishing any account of the manner in which it has been employed, he is to be treated as if he had actually used the fund, and consequently chargeable with interest as a matter of right. 

COUNSEL:
D. STEWART and H. D. EVANS, for the appellants, contended:

That the plaintiff is not entitled to recover--because,

1. That a trustee appointed by deed cannot be removed, and a successor appointed, unless upon proceedings instituted for that purpose, in which the parties concerned may be heard.

2. That the chancellor had no [**10]  authority to require, accept, or approve a bond, given under the circumstances detailed in the evidence in this cause.

3. That the bond here was not approved until after the money, which is alleged in the plaintiff's pleadings to have been received by the trustee, had been actually paid to him, and consequently, having received the money before he was trustee, the sureties on the bond are not bound for the same.

And as showing that the chancellor had no jurisdiction in the case, that defendant will further contend, that his decree in the premises is a nullity--because,

1st. The infant defendants in that cause, were not summoned, and do not appear by guardian in the manner prescribed by the act of assembly.

2d. Because the cause related to the lands of infants to be sold, and no bond was given for the future indemnity of such infants, under the act of 1785, ch. 72, sec. 24.

4. That under the circumstances, the county court should have left the question of interest to the jury, to be allowed or not, in their discretion.

GLENN, for the appellees,

Referred to the acts of 1790, ch. 38, sec. 2, 3, and 1799, ch. 79, sec. 4, to show the power of the court [**11]  over non-resident infants, and the authority to make them parties by publication.

He insisted that the court could remove a trustee. 10 Law Lib. 94. And that any of the cestui que trusts, of full age, might invoke the power of the court to appoint a trustee. That neither the trustee nor his security, could object to his appointment. The recital of their bond estopped them. Lainson vs. Tremere, 1 Adol. and Ellis, 792. 28 Serg. and Low. 219. Shelley vs. Wright, Willes's Rep. 9. Hosier vs. Searle, 2 Boss. and Pull. 299. The first payment was authorized by the bond, for upon ratification or approval, the bond relates to its date, and covers intermediate receipts. The payment by the first trustee to Joseph Dyckes, was only what the court would have ordered. Lee, et al, vs. Stone & McWilliams, 5 Gill and John. 1. It is therefore valid without an express order.

The court had a general jurisdiction to order a sale, and a failure to comply with the directions of the act of 1785, regulating the manner of the sale, gives a right of appeal, but cannot vacate the decree when offered as evidence.

The question of interest was properly decided. It was the duty of the trustee to invest,  [**12]  and pay over the interest annually. The object is to secure the annual payments, and the default clearly exists. This entitles the party to interest. The time is fixed and certain by operation of law. Ringgold vs. Ringgold, 1 Har. and Gill, 11. Raphael vs. Boehm, 11 Ves. 92, 104. O'Keefe vs. Jones, 13 Ves. 412.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*182]  ARCHER, Judge, delivered the opinion of the court.
It is contended, that the bond upon which this suit has been brought, is void for want of jurisdiction in the Chancery court, to decree in the cause, or to appoint a trustee in the place of the former trustee, Mr. Schroeder.
As to the decree, it is contended, that the Chancery court had not jurisdiction of the persons of the infant defendants, as they had not been summoned. In answer to this objection, it is only necessary to say, that the infant defendants appear from the records to have been non-residents, and the acts of assembly have substituted the publication in place of 

 [*183]  the summons, at the discretion of the chancellor, and give the former all efficacy of the latter, without any appearance [**13]  by guardian.
It is secondly objected that, the chancellor had no jurisdiction, because no bond was taken, to refund to the infants the amount of the purchase money, in case of a sale, should the infants within one year after arrival at age, make appear to the chancellor, that the mortgage was obtained by fraud, or that no deed was executed, or that the money secured by it, or so much as was claimed, was not due, in compliance with the act of 1785, ch. 72, sec. 2. The jurisdiction of the chancellor was clear and undisputed, to decree upon the subject matter of the bill, and upon its being filed, and parties made, his jurisdiction at once attached, and if this were a case requiring a refunding bond, the failure of that officer to comply with the requisition of the law, would have been error, for which the decree might have been reversed, but in no manner affected the jurisdiction of the court.
Again, it is urged against the jurisdiction, that no proof whatever was taken of the claim; whether there is any proof, or sufficient proof to support the allegations of a bill, is always a question to be decided, on appeal taken by some of the parties in the suit. It is not the proof which gives [**14]  jurisdiction, but the subject matter of the bill, and nature and character of the claim. The jurisdiction of the Chancery court appointing the trustee, and in taking and approving the bond, has been questioned on account of the character of the proceedings in which the appointment was made.
Trustees are generally removed and others substituted by original proceedings, filed for that purpose. Cases may often occur where they may be removed without such special proceedings, and in the record of chancery proceedings offered in evidence in this cause, there being proper parties before the court, and all the cestui que trusts before the court, circumstances might occur where it would be clearly the duty of the court to substitute a trustee. As if it had been proved, after the trust fund had been converted into money, 

 [*184]  that the original trustee had removed from the jurisdiction of the state, or the United States, that he was entirely unworthy of trust, and to make a stronger case, had become so, after the execution of the grantor's deed, creating the trust. Such a case would have imperiously demanded the substitution of a new trustee. The existence of such possible, nay,  [**15]  probable cases, and the nature and character of the redress sought, clearly demonstrates the jurisdiction of the court. It is true there is no proof in the record, that such a state of facts did exist, but the absence of proof does not affect the question, and if in the case before the court, there was error in substituting a trustee, which we do not mean to assert, still the remedy was by appeal alone.
Whether it was competent for the defendant, who represents one of the sureties in the bond, which on its face recites the appointment of his principal as trustee, by a decree of the court of Chancery, to make such objections, it is unnecessary for us to determine, as we think there is clearly nothing in any of the objections taken to the jurisdiction of the court of Chancery, either in passing the original decree, or in appointing a substituted trustee, or in his taking and approval of the bond.
It is further objected to a recovery on this bond, that the money was received by the principal in the bond, before its approval by the chancellor, and before he was clothed by its approval, with the character of a trustee. If the trustee had in his hands the trust money, at the time of the [**16]  approval, the bond immediately operated upon it, for by its condition, he was bound to take care of the fund committed to his care, and as it was paid to him before, we must presume in the absence of evidence to the contrary, that it still remained in his hands at the approval of the bond.
That no order was ever passed to pay the money over to the trustee, cannot affect his responsibility, if in fact it was paid. The object of the bond was to secure to the cestui que trusts, the very sum which was paid, and whether he received it in virtue of the chancellor's order, or the voluntary act of 

 [*185]  the trustee who made the sale, he is equally responsible upon the trustee's bond. An order for the payment of the fund, in court to him, was a matter of course, and its payment, as is apparent from the chancellor's orders, was only delayed until the execution of the bond.
We by no means think there is a controlling analogy between the case of 7 Har. and Jo. 444, and the present.
In that case, the duty of the trustee was to sell the land, and receive the purchase money, unless before a given day the mortgage debt was brought into chancery. The trustees never sold the land, but [**17]  the mortgagor instead of bringing the money into court, as he had liberty to do, paid to the trustee the money, who would acquire no right to receive it, until the event had happened directed by the decree, the sale of the land. But in the cause now before the court, by the express terms of the bond, the trustee was responsible for investing or holding the property in money, committed to his care in trust, for Ellen Dyckes, during her natural life, and for her children, &c. after her death; and it is apparent from the proceedings, that at any time after the payment to him of the trust money, by Donaldson, when the bond was approved, that the chancellor would have ratified what was done, and the case would then stand, as if at the moment the bond had been approved. The chancellor's confirmatory order had passed, and in such a case, the fund being in the hands of the trustee, (and we are bound to believe, there being no evidence to the contrary, that it remained in his hands,) the bond would stand as a security for its faithful administration.
The right to take the bond in the name of the state grows out of the character of some of the possible cestui que trusts, who could [**18]  in no other manner have been so well secured.
The last question submitted is, whether interest is chargeable, and if so, in what manner.
The liability of the trustee to pay interest must be determined from the character of the trust, and the circumstances attending its administration. The trust money came into 

 [*186]  the hands of the trustee in the year 1818, fifteen years before the institution of this suit, and was by the terms of the trust, to be held or invested for the use of Ellen Dyckes, the plaintiff, for life, and after her death for the use of her children, born or to be born. As a faithful trustee, bound to carry out the intention of the trust, it was his duty to have sought the aid of a court of chancery and its directions with regard to the disposition of the trust money, and not have permitted it to lie in his hands for a period of fifteen years, only serving to benefit the trustee himself, by giving him additional credit in proportion to the extent of the trust fund, while in the mean time, the life of the cestui que trust, who during the whole period would have been entitled to the fruits of the fund, was wearing out without deriving any benefit from [**19]  her life estate. If such a course could be sanctioned in a court of equity, the office of trustee would be greatly sought after, the benefits of trusts enuring to the trustee's advantage, and not that of the cestui que trusts. No evidence whatever was offered by the defendant to shew what disposition the trustee had made of the trust money. Under such circumstances the conduct of the trustee is left open to the most unfavourable presumptions, and if contrary to his duty, he had the funds in hands for so long a time without causing it to produce any fruits, or has used the fund, he is equally liable to the cestui que trust, for the interest which the fund would have yielded, and for interest on that sum according to the terms of the plaintiff's prayer, which was granted by the court. By the terms of the trust, Ellen Dyckes was clearly entitled annually to the interest. As the principal was reserved for the use of her children, the trust could in no other manner have been carried out so as to be beneficial to her, and subserve the purposes and intentions of the trust, nor could she in any other manner be indemnified.
In Newson and Douglass, 7 H. & J. 417, [**20]  this court say, that the question of interest according to the long settled practice of the courts, is referrible to the jury, but they at the same time designate certain exceptions to that general 

 [*187]  rule, within which, as we apprehend, this case falls. And the case of bonds, contracts in writing, to pay money on a day certain, or contracts for the payment of interest, or when money claimed has been actually used, are pointed out as cases illustrating the exceptions to the rule. The trustee in this case having retained the fund claimed for so long a period of time, and furnishing no account of the same, he is to be treated as if he had actually used the fund claimed; and so would be chargeable as a matter of right with interest. The case in 2 Gill and John. 430, will not be found to conflict with these views. That was a suit instituted on an appeal bond, and the plaintiff sought to recover the amount of costs on the judgment appealed from, and the value of the goods replevied, for which in the County court he had obtained a judgment for a return irrepleviable, and which was affirmed in the court of Appeals. The question of interest on the costs and on the value of the [**21]  goods was left to the jury. There was nothing in the terms of the judgment which gave the plaintiff interest, either on the costs or on the value of the goods, nor any imperative obligation of law to pay interest, and that case was therefore properly put to the jury, to allow interest or not, according to the equity and justice of the case on consideration of all the circumstances attending it.
Finding no error in the opinions of the County court expressed in this case, we affirm their judgment.
JUDGMENT AFFIRMED.  

36 of 47 DOCUMENTS 

THOMAS S. WILSON vs. NEGRO ANN BARNETT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 158; 1837 Md. LEXIS 23 

December, 1837, Decided 

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

This was a petition for freedom filed by the appellee against the appellant, and is the same case which was here on appeal at December term, 1836, vide, 8 Gill and John. 169.

At the trial of the cause the appellee gave in evidence the will of Elizabeth Richmond, under which she claimed her freedom; the inventory of the goods and chattels of her estate, amounting to $ 4,125 52, taken the 13th June, 1832.

The defendant for the purpose of showing the insufficiency of the personal estate of the testatrix, for the payment of her debts, independent of her negroes, (which were included in the inventory aforesaid, and amounted to the sum of $ 1,315,) offered in evidence an office copy of his administration account, on the estate of the said Elizabeth Richmond, dated 9th October, 1833, in which he charged himself with

________________________________________________________________________________
the amount of inventory,	$ 4,125 92	
  Sperate debts on 27th September, 1833,	414 51	
  Negro hire to 27th September, 1833,	192 68	
  Interest,	14 83	
	
	$ 4,747 94	
  And obtained allowances for,	1,257 80	
	
  Leaving a balance to be distributed according	
to the will of the deceased,	$ 3,490 14	
________________________________________________________________________________

 [**2]  

The defendant also offered proof of a debt due by the estate of $ 809, to John S. Blake, Jr. and also of an order of the Orphans' court of Queen Anne's county, dated 15th August, 1837, containing an authority for the sale of the negroes of Mrs. Richmond's estate, upon the ground of a deficiency of personal assets to pay debts, or such part thereof, as the administrator in his discretion, at public or private sale, may deem sufficient for that purpose.

The defendant also proved, the payment of $ 520 26, expenses of arresting and detaining the negroes for sale, and fees of counsel in the case of Richmond vs. Blake, before referred to.

The petitioner, in order to show a sufficiency of assets offered evidence, that the hire of negro men, exclusive of food and clothing, was from $ 50 to $ 60 per annum; women from $ 20 to $ 25 per annum; of girls of eleven or twelve years of age, $ 15 per annum, all exclusive of food and clothing. To the competency of which testimony, the defendant, (now appellant) objected, because the petitioner had offered no testimony to show, that the defendant had hired the negroes belonging to the estate of the testatrix, after the 9th October, 1833,  [**3]  or that he had received any profit or advantage from their labour. But the court permitted the evidence to go to the jury, and the appellant excepted. This exception was dated 13th October, 1837.

2d EXCEPTION.--The petitioner then upon the whole proof, prayed the court to direct the jury, that the administrator was answerable to the estate for the reasonable hire and profits of the slaves belonging to the estate, from the time of rendering his account to the Orphans' court in Queen Anne's county, in October, 1833, till they were disposed of in October, 1837, and that the jury had a right to add the amount of such hire or profits of said negroes, to the amount of the inventory as part of assets to pay debts, and by comparing the aggregate amount with the outstanding debts due by the deceased, to ascertain whether there is a deficiency of assets or not. To the granting of which direction the defendant objected, because the evidence was vague, uncertain, and irrelevant, establishes no specific sum; and has a tendency to mislead the jury in finding sufficient assets, when the contrary is manifest. The court granted the direction, and the defendant excepted.

3d EXCEPTION.--The [**4]  defendant then prayed the court to instruct the jury, that upon the evidence offered to them, the petitioner is not entitled to her freedom, and that they must find a verdict for the defendant, because it is manifest, that the personal estate of the testatrix, independent of her negroes, was not sufficient for the payment of her debts, and that it would be to the prejudice of creditors, that the petitioner should be free under the will, which opinion and instruction the court (Brice, Ch. J. Nisbet and Worthington A. J.) refused to give, and instructed the jury, that it is a fact alone for them to decide, whether there is, or is not, a sufficiency of assets exclusive of the negroes to pay the debts of the deceased. If from the whole of the testimony they shall find that there was sufficient assets for the above purpose, they will find for the petitioner, otherwise for the defendant. The defendant excepted.

After a motion for a new trial overruled, the verdict and judgment being for the petitioner, the defendant brought the cause by appeal to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

When it appears by the inventory returned by an executor or administrator, that he is in possession of negro property belonging to the deceased, he is properly chargeable with their hire, or the value of their services, unless he shows by proof, an adequate excuse for not having received such hire, or value.

And upon a petition for freedom, such charge is a proper item, in estimating the value of the deceased's personal estate, exclusive of the negroes; when their right to freedom depends upon the assets being sufficient to pay debts, independently of them.

To enable the jury correctly to estimate the value of their services, it is sufficient to show by evidence the annual value of negroes of the same description as those mentioned in the inventory.

When the right to freedom depends upon the sufficiency of the assets of the testator to pay debts, the inquiry is not limited to the condition of his estate at the period of his death. If the assets were sufficient at that time, but in a due course of administration, and before the executor's assent to the freedom, and without his fault, the estate, without the negroes, become inadequate, the right to freedom would not exist.

And so, if the assets are insufficient, at the testator's death, but by subsequent events, and in a due course of administration, they become sufficient, the claim to freedom could not be resisted. 

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

For the several propositions specified in the several bills [**5]  of exceptions, and which show the grounds taken in the argument of the cause on his part.

D. P. BARNARD, for the appellee, insisted:

1. Where an administrator acknowledges slaves to be in his possession, it is his duty to return an account of the amount of their hire, if hired out, or the value of their services if they remain in his possession, to the Orphans' court, and if he neglects to do so, it is competent for parties interested in the increase of the estate to shew by testimony, what is the reasonable value of the hire of negroes of like description.

2. That upon proof being given of the value of negro hire the jury may find, what the reasonable hire and profits of the slaves are, and add the same to the amount of the inventory in the hands of the administrator, as assets belonging to the estate for the payment of debts.

3. That where the Orphans' court, orders the administrator to sell such part of the negro property, as he may deem sufficient for the payment of the debts of the deceased, the administrator cannot proceed to sell all the negroes, unless such sale is necessary for the payment of debts; and where he makes his election from the slaves, and sells [**6]  enough to pay the debt, his claim to the remainder, if there be any, ceases, and it is competent for any slave remaining unsold, in a petition for freedom under the will, to give in evidence the fact, that sales have already been made under the order of the Orphans' court, sufficient for the payment of the claims against the deceased.

4. That where evidence is given of claims against the estate, and also of matters properly chargeable as assets, the court cannot give a positive instruction to the jury to find for either party, but leave it with the jury alone to decide, whether there is a sufficiency independent of negroes to pay the debts of the deceased, and if there be a sufficiency, their verdict must be for the petitioner, if otherwise they must find for the defendant. He cited: Act of 1798, ch. 101; 1818, ch. 217, sec. 1, 2, making the hire and increase of negroes, assets. And Hall vs. Griffith, 2. Har. and John. 483. Mann vs. State use Thomas, 3 Har. and John. 237. Evans vs. Iglehart, 6 Gill and John. 191. If evidence is vague, its effect for the jury. Whittington vs. Farmers Bank, 5 Har. and John. 495. The proceedings before the Orphans' court not conclusive, 3 Har. and [**7]  John.  

JUDGES:
Argued before STEPHEN, ARCHER, and DORSEY, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*162]  DORSEY, Judge, delivered the opinion of the court.
We see nothing to disapprove of in the decision of the city court in the appellant's first and second bills of exceptions. The inventory of the personal estate of the testatrix having shewn to the jury, that the appellant was in possession at 

 [*163]  the date thereof of sundry negroes, men, women and girls, the property of said estate, in the absence of all proof of their having been out of his possession, coupled with the presumption deducible from the order of the Orphans' court, of Queen Anne's county, that these negroes were still in his possession, the court very properly authorized the jury to charge the appellant, with hire or value of the services of the negroes, during the time they thus appeared to have been in his possession, and such hire was an appropriate item in estimating the personal assets of the deceased, exclusive of her negro property. If such hire was not received by her administrator, it was his duty to have shown by proof, an adequate excuse for his failure in not having done so. In fixing the hire or value [**8]  of the services of the negroes in question, we can see no objection to the testimony offered by the petitioner in the appellant's first bill of exceptions. The objection to it for vagueness and uncertainty, we think by no means sufficient to destroy its admissibility.
The refusal of the appellant's prayer in the third bill of exceptions, and the instruction therein given to the jury meets our entire concurrence. The interest with which the appellant was chargeable, was a subject for the exclusive cognizance of the jury; the allowances claimed by him, and not sanctioned by the Orphans' court, were matters on which the jury were to pass, the amount to be allowed for the hire of the negroes, was a subject over which they had exclusive jurisdiction. To have withdrawn all these questions from the consideration of the jury, as the court by the appellant's prayer were called upon to do, would have been a most unwarrantable encroachment, upon the rights of that branch of our judicial system, to which is submitted the trial of all matters of fact. The ground most strongly urged against the claim of the petitioner, that her right to freedom, must depend upon the sufficiency of the personal [**9]  assets of the deceased, at the moment of her death to pay all her debts, has nothing in reason or in law to support it. Had such estate at the death of the testatrix, been abundantly sufficient 

 [*164]  to pay all her debts, but in the due course of administration, and before the assent of the administrator, to the freedom of the petitioner, and without any default on his part, the estate other than the negroes, had by subsequent events become wholly inadequate to the payment of debts, the petitioner's right to freedom would no longer have existed; and if by events subsequent to the death of the testatrix, in the due course of administration, her estate at her death, greatly insufficient, should become sufficient, the right of the petitioner to her freedom could not be resisted. To be a sound rule it must work both ways.
Had the jury in their verdict disregarded either the law or the facts of the case, the city court was the tribunal from which redress should have been sought. There such an application was preferred but was overruled. Approving of their decision we feel no inclination, even if we had the power, to arrest the execution of what we believe to have been a most righteous [**10]  verdict.
Concurring with the court below, in their refusal and instructions in all the appellant's bills of exceptions, we affirm their judgment.
JUDGMENT AFFIRMED.  

37 of 47 DOCUMENTS 

TUBMAN L. HALL, ADMINISTRATOR OF JOHN HALL, vs. G. M. GILL, PERMANENT TRUSTEE OF SAMUEL HALL AN INSOLVENT DEBTOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 325; 1838 Md. LEXIS 34 

December, 1838, Decided 

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

The petition in this casue, was filed by the appellee, to recover a distributive share of John Hall's estate, due to Samuel Hall a brother of the deceased.

Samuel Hall applied for relief under the Insolvent Laws of Maryland, on the 10th May 1834, and the deceased (who died after his application) was his creditor to amount of $ 2,893.64, at the time thereof.

By the act of 1805, ch. 110, sec. 5, the petitioning debtor on complying with the conditions of the act is discharged from his debts, provided, that any property which he shall thereafter acquire, by gift, descent, or in his own right by bequest, devise, or in any course of distribution, shall be liable to the payment of the said debts.

The Orphans Court decreed the distributive share of Samuel Hall ($ 487.52) to be paid to the appellee his trustee, and the administrator appealed from that decision.  

DISPOSITION:
DECREE REVERSED WITH COSTS.  

HEADNOTES:

Property acquired by an insolvent debtor, subsequently to his petition, by gift, descent, or in his own right by bequest, devise, or in any course of distribution, does not pass to his trustee.  

COUNSEL:
By MAYER for the appellant, who contended:

1. That the fund in question, although coming to the insolvent in his own right, "in the course of distribution," does not belong to the permanent trustee for the benefit of the creditors [**2]  at the time of the insolvent's application; but is answerable to those creditors separately, to be recovered as if the insolvent had not applied for the benefit of the Laws, and that subsequent creditors are equally entitled to pursue it in the same way.

2. That if even the Insolvent Laws makes this fund assets exclusively for the creditors at the time of the insolvent's application, to be distributed among them pro rata, yet the permanent trustee, is not the agent for securing and distributing it, and a court of equity must be resorted to for taking charge of, and dividing it.

3. That the insolvent being indebted to the deceased John Hall, in a much larger amount than the distributive share, the share may be returned by the administrator, and the insolvent's claim for it is extinguished.

G. L. DULANY for the appellee.  

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

OPINION:

 [*326]  By the court. We are of opinion, that the subsequently acquired property of an Insolvent Debtor, mentioned in the proviso of the act of 1805, ch. 110, does not pass to his trustee.
DECREE REVERSED WITH COSTS.  

38 of 47 DOCUMENTS 

THOMAS H. WRIGHT vs. JAMES WOODLAND AND WIFE, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 387; 1839 Md. LEXIS 14 

December, 1839, Decided 

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

The bill in this cause was filed on the 28th September 1838, by Thomas H. Wright of the city of Baltimore, and alleged that about the 21st of March 1827, he was seized in fee simple of real estate in Kent county in this State, and containing four hundred acres of land or thereabouts; that being so seized, on the day and year aforesaid, he sold and contracted to convey unto a certain James Woodland, then of Cecil county, the said lands and premises, at and for the price of $ 7240, and gave to the said James Woodland a bond of conveyance for the said estate, the conveyance to be made on the payment of the whole purchase money and interest, and he received from the said James Woodland his penal bond, conditioned to pay the said sum of $ 7240, in the manner and at the times therein mentioned, which bond is herewith brought into court as a part of this his bill of complaint. That the said James Woodland hath not, nor hath any person paid unto your orator, or to his use, any part of said purchase money or the interest thereon, other than what is credited in the account herewith filed marked exhibit No. 2. And that the said James Woodland did not,  [**2]  nor did any other person for him, pay unto your orator or to his use, the several payments agreed upon and stipulated for at the time of said contract, and as set forth in the said bond, or at any time since; and that there is now due and owing unto your orator upon the said bond, and for the said purchase money, the sum of $ 6052.93, with interest thereon from the 12th of December 1837. And your orator is advised that, the said balance of purchase money is an equitable lien upon said lands, to be enforced in chancery by a sale of said lands; that the said James Woodland entered into possession of the said lands and premises, in pursuance of his contract so made with your orator as aforesaid, and held and enjoyed the same in pursuance thereof; and that afterwards, to wit, on or about the 6th July 1836, the said James Woodland, as your orator hath since been informed, executed and placed upon the records of Kent county aforesaid, a deed for all his estate, real, personal, and mixed, unto your orator to hold in trust for the sole and separate use and benefit of Eliza Woodland, to whom the said James was then about to be married, and to whom he afterwards was married, an office copy under [**3]  seal of which deed is herewith exhibited. That complainant never directly or indirectly consented to accept of said trust, and now refuses to accept of said trust, and prays to be discharged therefrom. That the said deed was executed and recorded without his knowledge or consent; that he hath also been informed and believes, that the said James Woodland sold his interest and estate so purchased from your orator as aforesaid, in and to the aforesaid lands and premises, unto a certain James Freeman Woodland, who is now in possession thereof. That the said James Freeman Woodland was not at the time of his said purchase aware of the existence of said deed of trust. That the said James Woodland afterwards removed from the State of Maryland, and that he and his said wife Eliza Woodland now reside in foreign parts beyond the limits of the State of Maryland, to wit, in the State of Virginia. That he hath frequently, and in a friendly manner, applied to the said James Woodland, Eliza Woodland, and James Freeland Woodland, to pay the said sum of money so due and owing as aforesaid, for the purchase money of said lands and premises, according to the contract and agreement so entered into between [**4]  your orator and the said James Woodland; and your orator well hoped that they, or some of them, would have complied with such reasonable request. But now so it is may it please your honor, they and each of them hitherto have, and still do refuse so to do, contrary to equity and good conscience, and to the great and manifest wrong and injury of your orator, &c. To the end therefore, that the said James Woodland and Eliza Woodland his wife, and James Freeman Woodland and each of them, may answer this bill, and that they be decreed to pay unto your orator the aforesaid balance of the purchase money and interest thereon, with costs of this suit, or that the said estate, lands and premises may be sold to pay the same, under a decree of this court, and that your orator may be relieved from the said trust for the said Eliza Woodland, and that your orator may have such other and further relief, &c., may it please your honor to grant unto your orator an order of publication in the usual form, against the said James Woodland and Eliza his wife, and a subpoena to the said James Freeman Woodland of Kent county in this State, &c.

With this bill the exhibits referred to in it were filed. On [**5]  the 28th September 1838, an order of publication was granted, requiring James Woodland and wife to appear and answer the bill. The defendant James Freeman Woodland was returned summoned. On the 28th January 1829, the Chancellor ordered that the complainant is entitled to relief in the premises, but in as much as it did not sufficiently appear to what relief he was entitled, further ordered that, a commission issue to take testimony. A commission was issued and returned, under which the complainant proved the allegations of the bill.

After the return of the commission James Freeman Woodland filed an answer by consent, in which he admitted that he purchased the lands in controversy from James Woodland; that when he purchased, he knew a part of the purchase money was still due to complainant, from whom he had purchased; that he paid J. W. a large part of his purchase money, and was then ignorant of the deed of trust mentioned in the bill. The answer also admitted the marriage and non-residence of J. W. and wife; and of the other matters charged in the bill this defendant has no knowledge of the same.

At March term 1839, the Chancellor (BLAND) dismissed the bill with costs, and [**6]  the complainant appealed to this court.  

DISPOSITION:
DECREE REVERSED AND CAUSE REMANDED.  

HEADNOTES:

Where the vendee of real estate had given his bond for the payment of the purchase money, and taken a bond of conveyance therefor, and removed from the State, after selling the property to a third person, with notice that a part of the original purchase money remained unpaid, receiving from the sub-purchaser a part of the money contracted to be paid by him, this court upon a bill filed by the original vendor to enforce his lien, decreed a sale of the property for the payment of the balance of the purchase money due him, and this, though no proceedings had been adopted to recover the money at law.  

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

1st. That the purchase money due is a specific lien upon the land.

2nd. That in as much as the plaintiff did not part with the title, the legal estate, the original purchase money remained a lien on the land in the possession of the assignees.

3rd. That as the assignee James F. Woodland knew that the purchase money had not been paid to the plaintiff, the land in the hands of said assignee is bound for the said purchase money.

4th. That the deed from James Woodland to the plaintiff in trust for the grantor's wife, is fraudulent and void, under the circumstances of this case.

5th. That purchase money is an equitable lien to be enforced in equity by a re-sale.

6th. That the purchase money is a specific lien, to be enforced in equity by a re-sale.

7th. That it appearing by the allegations and proofs, that the purchaser James Woodland had parted with his whole estate, and had removed from the State of Maryland, the plaintiff's only remedy is in equity.

8th. That it is manifest that the plaintiff is without remedy at law, and [**7]  therefore he has a right to enforce his specific equitable lien in equity.

No counsel appeared for the appellee.  

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

OPINION:

 [*391]  At this term the Court of Appeals decided that, the decree of the Court of Chancery dismissing the bill of the complainant, be reversed, with costs in both courts; that the bill be taken pro confesso against the absent defendants, J. W. and wife, and that the lands mentioned in the proceedings be sold for the payment of the balance of the purchase money due the complainant, with interest thereon and costs of suit. That T. P. S. be and he is hereby appointed trustee, &c. The decree then proceeded to give directions as usual in chancery, and remanded the cause for further proceedings in conformity thereto.
DECREE REVERSED AND CAUSE REMANDED.  

39 of 47 DOCUMENTS 

THE STATE OF MARYLAND vs. MURPHY AND THOMPSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 365; 1839 Md. LEXIS 5 

June, 1839, Decided 

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

In this case the appellee, J. D. Murphy, at February term 1837, had been indicted in Baltimore City Court for a misdemeanor under the act to prevent gaming. Upon his suggestion and affidavit, the cause was transmitted to Anne Arundel county court for trial, the traverser and the other appellee, Joseph B. Thompson, entering into the following recognizance:

"And thereupon the said Jesse D. Murphy acknowledges himself to owe and stand justly indebted unto the State of Maryland in the sum of $ 2000 current money, and Joseph B. Thompson, also present here in court, and who is by the court here deemed good and sufficient, in like manner acknowledges himself to owe and stand justly indebted to the State of Maryland in the sum of $ 2000 current money, which said sums of money they and each of them acknowledge, shall be made and levied of their bodies, goods and chattels, lands and tenements, to and for the use of the State of Maryland, in case the said J. D. M. shall not make his personal appearance before Anne Arundel county court, to be held at the city of Annapolis on the fourth Monday of October next, to answer the charge aforesaid, and [**2]  shall not depart the said court without the leave thereof."

At the October term of Anne Arundel County Court the traverser appeared, and demurred generally to the indictment, in which demurrer the State joined, and the county court adjudged that the said Jesse D. Murphy be dismissed and discharged of the said indictment, and that he go thereof without day.

From this judgment the State sued out a writ of error from Chancery, and brought the cause to the Court of Appeals, where, at December term 1838, the judgment of the county court was reversed; and the State adjudged to be restored to all things which by reason of said judgment she hath lost, and the cause was remanded to the county court with directions to proceed in the prosecution aforesaid, and to a trial thereof in the same manner as if no judgment had taken place or any writ of error had been prosecuted.

The record being sent back in due course of law, at April term 1839, Boyle, D. A. G. appeared on behalf of the State. "And the said Jesse D. Murphy being solemnly called to come into court, according to the tenor of his recognizance aforesaid comes not, but makes default. Thereupon the State prays that the recognizance [**3]  aforesaid of the said Jesse D. Murphy and Joseph B. Thompson may be forfeited, but the county court (DORSEY, C. J., BREWER and WILKINSON, A. J.) overruled the motion, and adjudged that they be discharged from their said recognizance.

From this judgment the State sued out another writ of error.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

If a party who has recognized to appear to answer to an indictment, appears accordingly, and is discharged by the judgment of the court without day, and that judgment is reversed upon a writ of error, and the record remanded with directions to proceed with the prosecution, the recognizance cannot be forfeited, if the party fails to re-appear to answer to the indictment.  

COUNSEL:
By Z. C. LEE and BOYLE, D. A. G., for the State, and

By C. F. PITTS and GLENN for the appellees.  

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

OPINION:

 [*366]  By the court.
JUDGMENT AFFIRMED.  

40 of 47 DOCUMENTS 

ANDREW SHRIVER vs. THE STATE OF MARYLAND use of CHARLES DEVILBISS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 1; 1837 Md. LEXIS 10 

December, 1837, Decided 

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

This was an action of debt commenced on the 19th February, 1831, on the testamentary bond of Andrew Shriver, to perform the office of executor of the last will and testament of John Shultz, late of Baltimore county, deceased. After an assignment of a breach, the parties agreed that the cases now depending between them, and all matters in dispute or unsettled between them, should be referred to Gideon Bantz and Samuel Carmack, with power to choose a third person in case of disagreement, to act in conjunction with them for their final decision of the same. The said matters in dispute to be referred and acted upon under the following terms, to wit: the said Shriver is to charge himself with all the proceeds of the estate of John Shultz, deceased, whose executor he is, in the same manner as if he had made a final settlement of said Shultz's estate, and had received all the money due and growing due to the same, subject to all legal and proper allowances. It is also to be admitted by said Shriver that William Devilbiss, one of the children of Ann Maria Devilbiss, deceased, is dead intestate, and that the said Charles is to receive his share of said [**2]  William's part of said Shultz's estate, so far as he may be entitled to the same as his brother, under an administration to be had upon said William's estate. Neither of said parties shall plead the statute of limitations to the claims of the other. It is also to be the right of the said parties, to appear before the said referees by their counsel, to examine the testimony and argue the case. This reference is to comprehend all unsettled matters of every description, whether arising or growing out of any immediate transactions between the said parties, or between either of said parties and any other person or persons, provided the other party has a bona fide interest therein and provided said claims do not arise since this reference. The said award to be signed by at least two of said referees, and to be made and ready to be delivered to said parties on or before the 1st June, 1832. The parties extended the time of making the award first, to 1st August, 1832, secondly, to 22d October, 1834.

And moved the court that the matters in controversy between them, as set out in said agreement, be referred accordingly, whereupon by consent of parties as set forth in said agreement, the [**3]  same was ordered to be referred to Gideon Bantz and Samuel Carmack, and in case they disagree, they are to choose a third person, and that the said arbitrators or any two of them, when the whole matter concerning the premises between the said parties in variance being fairly adjusted, have their award in writing, under their hands and seals before the court here, with all convenient speed according to the terms of said agreement, and that judgment of the court be entered according to such award.

Afterwards the arbitrators returned the following award:

We, the subscribers, appointed referees by Frederick county court, in this case having given due notice to the parties of the time and place of hearing their respective allegations and proofs, and having heard and duly considered their said allegations, proofs, &c. do award and determine that the said Andrew Shriver, is indebted to the said Charles Devilbiss, the plaintiff, in manner and form as the said plaintiff hath declared against him; and we do further award and determine, that judgment for the plaintiff be entered in the said cause for the debt and damages, in the declaration and costs, to be released on payment of the [**4]  sum of $ 4,332 04, with interest from this date and costs until paid. This award to be considered as a full and final settlement of all claims now existing between the said parties, and all differences and disputes in relation to all claims which the said Charles Devilbiss, has against the said Andrew Shriver, as executor of the last will and testament of John Shultz, deceased, also on account of the partnership, in relation to the tan-yard carried on by the said Charles, and the said Andrew, also for the value of the improvements made by said Charles, on the property or farm which he owns, in common with the said Andrew, and for all other claims or demands of said Charles of every kind against the said Andrew, and also in full of all claims and demands of the said Andrew against the said Charles, for his store account, his mill account, his tan-yard account, his account for claims placed into the hands of said Charles, as constable, or otherwise, for collection, his claim for rents and profits on the farm which they hold as tenants in common, the bond of Charles assigned to said Andrew, and of all other claims and demands of every kind whatsoever, at this time, of the said Andrew,  [**5]  against the said Charles in his individual capacity, as also as administrator of his brother, William Devilbiss, deceased, the said Andrew's share, as assignee of Samuel Devilbiss, of said William's estate. And on the payment of the aforesaid sum of money by the said Andrew to the said Charles as hereby is awarded, the said parties shall each execute and deliver to the other, a receipt and release in full of all claims and demands up to this date, it being the object of this award finally to settle all disputes, claims and demands whatsoever, between the said parties. Given under our hand and seals, this twentieth day of October, 1834.    GD'N BANTZ, [seal.]

Fred'k, Oct. 20, 1834.     SAM'L CARMACK, [seal.]

Notice of the award being given to the defendant, and of a motion for a judgment upon it, the defendant filed in arrest of, the following reasons:

1. That the matters submitted to the decision of the arbitrators, were so submitted to them by said Charles Devilbiss, and Andrew Shriver, by their own immediate act and without any rule of court.

2. That the submission comprehended not merely the matters in issue, in the several suits then depending in this [**6]  court, which are mentioned in the said submission, but various other matters then unsettled between them, not in issue, in said suits, and which are specified and mentioned in said submission.

3. That it was not only not a part of the submission, that the award should be returned to court, but it was the clear intention of the parties, that the suits in court should be at an end by the said submission, and that the award should be delivered to the parties themselves.

4. Because this court in giving judgment upon the case, upon the motion of the said state, at the instance of the said Charles Devilbiss, cannot fully execute the said award in all its parts, and the said Andrew suggests that by the said award he is required to pay a certain sum to the said Charles Devilbiss, and that said Charles Devilbiss, and he, the said Andrew, are to execute mutual releases.

The county court ruled the objections to be insufficient, and rendered judgment for the state, for the use of the equitable plaintiff, to be released in the payment of the sum mentioned in the award, with interest and costs. The defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the statute 9 and 10, Wm. 3d, ch. 15, which has been received and adopted in this state, the process of attachment to enforce awards, has been extended to all cases, whether the reference is of an action depending or not; provided, that when no suit is depending, it is stipulated in the agreement, that the submission shall be made a rule of court.

Whether the reference is by rule of court, or agreement out of the court, the power of the arbitrators depends upon the terms of the rule, or the language of the submission, and their proceedings in both cases are the same.

When a reference is made of a suit depending, the rule of the court recites and evidences the consent of the parties, and the terms of the submission, and is in general the only evidence of the agreement, which in such case need not be in writing.

In the case of a reference under the statute, the consent must be in writing, and proved in the mode prescribed; but in both cases, the power of the arbitrators depends upon the terms of their appointment, and their awards in each case will be enforced by attachment.

By the 8th section of the act of 1778, ch. 21, the courts are required to give judgment on awards made in causes instituted, or to be instituted, and to issue execution, as upon judgments on verdict, confession, or non suit, and the practice under this act has been to institute a suit, amicably or otherwise, and then by a rule of reference to name the arbitrators, the subjects of the submission, and the time, &c. within which the award is to be returned. This act is remedial, and should receive a liberal interpretation.

When an award is made and returned pursuant to the act of 1778, ch. 21, which the ordinary judgment of the common law courts may direct to be done, and to enforce, which the known executory writs of such courts are the appropriate process, such writs will be issued to enforce the judgment. But if the award should direct that to be done, to compel which, the ordinary writs would be inappropriate, the attachment must be resorted to, as before the act of 1778.

The act of 1778, has given the remedy by execution, when a cause is instituted, not by means of a previous verdict and judgment, but by directing that judgment shall be entered at once on the award, when returned and ratified as the act requires.

When a reference is made of a depending suit, the act of 1785, ch. 80, sec. 11, requires the case to be continued; but the omission to enter the continuances, is merely clerical, and this court can correct the error, without sending the record back to the county court.

When a time is limited for the completion of the award by the rule of reference, and the parties afterwards by agreement change the day, this court would hesitate to say, that either party could object, that the award was not made within the time first limited.  

COUNSEL:
WILLIAM SCHLEY, for the [**7]  appellant, contended:

1. That the cause was not referred within the meaning of the act of 1778, ch. 21, sec. 8, which applies only to cases instituted, and cannot be made to comprehend other matters than those involved in the suit. But this reference embraces various other matters, besides those so involved, and which could have been adjudicated in the then depending controversy. The provisions of the act of 1785, ch. 80, sec. 11, demonstrates the propriety of this construction of the act of 1778. By the act of 1785, either party is authorized to move to reinstate the cause, if an award is not made in time, but of course when the cause is reinstated nothing is in controversy, or to be decided, but what was originally in litigation between the parties.

Suppose in this case, a motion had been made, and had prevailed to reinstate the cause; would all the extraneous matters submitted to, and decided by the referees have gone along with it, or, would not the county court have been confined to the matters originally in dispute?

The statute 9 and 10, Wm. 3d, ch. 15, is not in force in this state, but even under that statute, the English judges have never given judgments directly [**8]  upon awards. If therefore the judgment in this case can be supported, it is under the Maryland law.

In England under the authority of the statute, parties may make any controversy a rule of court, whether there is a suit depending or not. 1 Saund. Rep 327, ante (c.) 2 Chitty Pr. 79. Nichols vs. Chalie, 14 Ves. 267. 11 Law. Lib. 1. By the common law, nothing but a cause pending could be so referred, and the English statute not being in force here, the complex reference made in this case, could not be made a rule of court. West vs. Stigar, 4 Har. and McHen. 490. By the act of 1778, the courts are to give judgment on the award, as in case of verdict, or confession, and therefore the judgment must be confined to the points involved in the pleadings, because there could be no verdict upon, or confession embracing other points.

2. But even if it can be considered as a reference of the cause, within the meaning of that act, still the cause was not referred by rule of court, within the meaning of said act.

3. That at all events the rule, if any, is not in conformity with the agreement of the parties; and the cause by the terms, and manner of reference is discontinued.

The [**9]  original agreement, was that the award should be made and delivered to the parties, by the 1st June, 1832, but the rule extends the time to the October term, 1834, being the 28th day of the month. This was six days later than the 22d, the latest period to which the time was extended by the agreement of the parties. But the rule differs from the agreement in another respect. The latter requires the award to be delivered to the parties, whilst the former directs it to be returned to the court. Under the agreement the arbitrators might have returned the award to October term, 1832, whilst by the rule the parties were discharged until October term, 1834.

The giving day from October term, 1832, to October term, 1834, was a discontinuance of the cause.

Here it appears, that the cause was continued from 1832 to 1834, thus passing over several intervening terms, not by misprision of the clerk, but by the order of the court, and consequently the defect is not amendable here. The act of 1809, applies to the case of a verdict, or cases in which the pleadings may be amended when the amendments are omitted in the county court. But the defect here complained of is incurable; because the [**10]  error is not in the record, but in the proceedings of the court itself. Amendments are allowable, when the record does not conform to the truth of the cause, but are never made, when the record as it stands speaks the truth, and the amendment would be a departure from it. That a neglect to enter the continuances, works a discontinuance of the action is clear. 1787, ch. 9, sec. 6. Munnikuyson vs. Dorsett, 2 Har. and Gill, 374. Prior to the act of 1785, ch. 80, the mere reference of a cause was a discontinuance. Camp and another, adm'rs of Clark vs. Root, 18 John. 22. The People vs. The Onondaga Common Pleas, 1 Wend. 314. Larkin vs. Robbins, 2 Ib. 506. Bean vs. Parker and French, 17 Massa. 591. Tillard's lessee vs. Fisher, 3 Har. and McHenry, 118.

4. The time limited for making the award had elapsed before it was made. It is true, it was enlarged by consent of the parties, but no action of the court was moved for, or had for the enlargement of the time. When the parties agreed to enlarge the time, the court should have been consulted, and shaped their rule accordingly. The award which was made in conformity with this new agreement, was not made under the rule of court. Hall vs.  [**11]  Hall, 3 Con. Rep. 308. If the rule allowed until October, 1834, it was not warranted by the original agreement, upon which it was founded, and was for that reason void. 2 Tidd. 876. Watson on Arb. 86. Mott vs. Anthony, 5 Mass. 489. Owen vs. Hurd, 2 Durnf and East. 643. If the rule did not give until October, 1834, but the postponement until that time, rested upon the agreement of parties made subsequently thereto, then the award for that reason is void. An action cannot be maintained on an arbitration bond, when the time is enlarged by the parties. Freeman vs. Adams, 9 John. 115. 3 Term Rep. 592, (note.) These objections are open upon the present appeal. Munnikuyson vs. Dorsett, 2 Har. and Gill, 374. State use Charlotte Hall School vs. Greenwell, 4 Gill and John. 407. Sasscer vs. Walker's executors, 5 Ib. 102.

5. But the award is ineffectual for another reason. It directs that to be done, which the judgment of the court cannot effect. How can the court, by its judgment, compel the parties to execute mutual releases? This can only be done by attachment, which issues upon the ground of contempt, for disobeying the rule of the court. In England, after a reference, by rule of court,  [**12]  the cause is gone, and the courts afterwards interfere only because of their rule, the non-observance of which is considered a contempt. This is always the case, unless a verdict is previously taken to secure the award, and then the cause is retained.

F. A. SCHLEY and DIXON, for the appellee.

The act of 1825, ch. 103, does not permit the appellant to raise any points in this court, other than those which were raised in the county court.

The first objection then is, that the reference was of matters besides those which were comprehended in the suit referred. But the parties have an undoubted right to prescribe the terms of the submission, and having done so, and got the court to adopt them, they cannot now object to the award, because of those very terms. 2 Chitty General Pr. 86, 88.

At the common law, and prior to the Statute of William, it was competent to parties to refer, by rule of court, other questions of dispute than those involved in the legal controversy. 2 Tidd. 872, 875, 876. 11 Law Lib. 2. In this respect the statute was only declaratory of the common law. Manser Weaver and another, 23 Eng. Com. Law Rep. 73. 1 Strange, 695.

The reference under the [**13]  statute must be in writing, which must stipulate, that the submission shall be by rule of court; and such reference will extend to other questions than those embraced in the suit. Lucas, ex'r Dem. Markam vs. Wilson, 2 Burr, 701. The only effect of the Statute of William, was to place controversies out of court upon the same footing as those in court, and it is a mistake to suppose, that this statute is not in force here. This being the case, it is no valid objection, that the reference carried with it questions of difference not involved in the legal controversy. The agreement is to be regarded, as incorporated in the rule, which was based upon it, and the parties now can urge no objection in opposition to their own agreement. Cromwell vs. Owings, 6 Har. and John. 16. 6 Com. Dig. Arb. 1. Craven vs. Craven, 2 Serg. and Low. 243. Pearse vs. Cameron, 1 Maul. and Sel. 675. 2 Term Rep. 646. Yates vs. Russel, 17 John. 461. Camp vs. Root, 18 Ib. 22. 1 Coxe Rep. 71. The act of 1778, ch. 21, sec. 8, made no change in the pre-existing practice in regard to references, by rule of court, except to entitle a party to a judgment on the award, as upon verdict, and consequently as before the act,  [**14]  such references are not confined to the matters in issue in the cases depending. Nor does a reference of a pending suit operate a discontinuance; for the act of 1785, ch. 80, provides for the continuance of the cause, and for the refusal, or death of the arbitrators, or their omission to return their award within the period limited for that purpose. In deciding the cause in 3 Har. and McHenry, 118, this act was not referred to, and in 2 Gill and John. 482, the court says the 11th section of the act is positive, that the cause shall be continued.

The direction, that reciprocal releases shall be executed by the parties, does not vitiate the award, because that portion of it may be enforced by attachment, but even if it could not the whole award is not, on that account, void.

There is nothing in the objection urged now for the first time, founded upon the agreement of the parties to enlarge the time for making the award, for as there is nothing in the record to show when such agreement was made, the court may, and ought to presume, that it was made before the rule of court, and the whole of the agreement, embracing the stipulation to extend the time, is to be considered as constituting [**15]  a portion of the rule.

But it was perfectly competent to the parties to enlarge the time without the order of the court. The King, (in aid of Mytton,) vs. Hill, et al, 3 Eng. Exc. Rep. 249. 9 Law Lib. 43. Evans vs. Thomson, 5 East. 189. Brewer vs. Kingsly, 1 John. Cases, 334. The objection which rests upon the omission to enter continuances cannot prevail, because the parties having agreed, and the rule of the court directed, that the award might be returned to October term, 1834, there could be no necessity for the appearance of the parties during the interval, and the continuance of the cause from term to term. Cromwell vs. Owings, 6 Har. and John. But even if such continuances ought regularly to have been entered, it is in the power of this court now to order them, under the act of 1809, ch. 153, sec. 3. 1 Tidd. Pr. 183. 2 Tidd. 733, 960.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*11]  CHAMBERS, Judge, delivered the opinion of the court.
We think the appellant has not successfully maintained the proposition, that this case is not within the act of 1778, ch. 21.
Submissions to award, both by rule of [**16]  court, where an action was depending, and by agreement without suit, are familiar to the law since its earliest history.
After the process of attachment became the usual means of enforcing the execution of the award, when made under a rule of court, its advantages could not fail to be perceived, over the tedious and less certain mode of suing upon the award, or the contract of reference.
But this advantage did not consist in any enlarged powers given to the arbitrators, or to any more convenient system of proceeding by them, under the rule of court.
Their powers were exactly defined in all cases, by the language of their appointment, whether that language was found in the rule of court, or in the contract for the submission entered into out of court, and in both cases their proceedings were the same.
The reason is expressly given in the Statute of 9 and 10, Wm. III. ch. 15, because the parties become thereby obliged to submit to the award, under the penalty of imprisonment for their contempt.
By this statute, which we hold was received and adopted here, the benefit of the summary and effectual process of attachment to enforce awards, was extended to all cases,  [**17]  in which, by inserting such a provision in the agreement, the submission was made a rule of court, without the usual formalities of a suit.
In the suit pending, the rule of court recites and evidences the consent of parties, and the terms of submission, and is in general, the only evidence of the agreement, which, in such case, need not be in writing.
In the case of a reference under the statute, the consent must be in writing, and proved in the mode prescribed, but in both cases the power and authority of the arbitrators, are 

 [*12]  equally dependent on the terms by which they are appointed, and in each case, the court will enforce the award by attachment.
Besides the remedies above noticed the courts had adopted a practice of taking a verdict, by consent, for a nominal sum, larger in amount than the award was expected to be, which, by agreement, was to stand as a security till the award should be returned, when a judgment was entered for the sum found due by the award, and for that reduced amount the ordinary process of execution was issued.
In addition to the cost, and the difficulty of this mode of proceeding, it was confined to such cases as involved the payment of money, [**18]  it did not avail where the defendant was entitled to recover of the plaintiff, nor could the judgment be for a larger sum than the award. For these reasons it does not appear to have been a proceeding often adopted.
Thus stood the law when the act of 1778, ch. 21, passed, by the 8th section of which, the courts were required to give judgment on the award, in any cause instituted, or to be instituted, and to issue execution as they might do upon verdict, confession, or non-suit.
So far as we are informed, the uniform practice under this law has been to institute a suit adversely, or docket an action amicably, and then by a rule of reference name the persons selected as arbitrators, define the subjects intended to be submitted, and limit the time within which the award is to be returned, the notice to be given to the parties, and every other matter connected with their proceedings.
It is not required of us now to say, whether an agreement in pais, under the Statute of William, and made a rule of reference, as directed by that statute, would be a cause instituted in the court, in which the agreement was made a rule.
We will say, we regard the act of 1778 as a remedial [**19]  law, designed to facilitate the administration of justice, and entitled to a liberal interpretation.
In the case before us, the cause had been instituted in the usual way by writ, the arbitrators named, and the extent of 

 [*13]  their authority defined. The question then as to what were proper subjects of reference, is to be determined by the principles of common law, and not by the Statute of William, or the act of 1778. We think the cases referred to in the argument abundantly prove, that all matters of litigation, whether of law or of equity jurisdiction, whether claims for specific articles of property, real, personal, or mixed, or sums of money; whether such claims be by the party, who, in the suit pending, or in the case to be made a rule of court by written agreement, may be plaintiff or defendant, can be the subjects of reference, and when the award is made and returned to court, pursuant to the act of 1778, a judgment thereon is by that act required.
If the award be returned in a common law court, and directs that to be done, which by the ordinary terms of judgment of common law courts may be directed, and to enforce which, therefore, the known executory writs will [**20]  be the appropriate process, such writs will be issued to execute the judgment.
Thus if the award directs payment of money, the delivering over of the possession of lands, or the restoration of a chattel, the writs of fieri facias, habro facias possessionem, or retorno habendo, might be an adequate and proper means of enforcing the judgment on that award, and the judgment must be in favour of the party entitled, whether plaintiff or defendant. If the award should direct a matter, for the enforcement of which the usual writs of execution will not avail, such as the execution of an instrument of writing, then, from the necessity of the case, the attachment must be resorted to, as before the act of 1778.
There would seem to be no other means whereby the manifest objects of the statutes can be effected. It is conceded, and cannot be denied that, parties may by mutual bonds of submission select arbitrators, and refer to them any, and all matters of controversy, legal and equitable, of law or of fact, for property, real, personal, or mixed, and that these arbitrators may award finally on all these matters, 

 [*14]  either for the one party or the other. To execute such an award,  [**21]  the slow process of suit upon the bond was to be resorted to, and in that suit, the parties were not in all respects precluded from going into a history of the proceedings of the referees, to show a defect in the award, or an irregularity in the conduct of the referees; and a judgment for damages was finally obtained, instead of a specific performance. The attachment, once confined to the case of the suit pending, was most assuredly extended by the statute of William, to all cases where the parties chose to apply to the courts to afford the aid of this process, by making their agreement a rule of court.
The act of 1778, has extended the remedy of execution to all causes instituted, not by means of a previous verdict and judgment, but by requiring judgment to be entered without any preliminary, on all awards, when returned and ratified as by that act is provided, and without lessening the authority of the referees, or limiting the range and extent of their powers, or confining the advantage to the plaintiff on the docket, or to the defendant.
We are therefore of opinion that, the objections taken to the character of the award, and the judgment thereon, cannot avail.
The language [**22]  of the reference gave to the referees all the authority they have exercised, and it is no just cause of complaint on the part of the appellant, that having submitted all claims against him, as well as for him, the tribunal selected by himself, after examining the whole matter, has decided against him, and that the court has given judgment pursuant to this decision. On this judgment an execution may issue for the sum of money awarded, and an attachment will lie to enforce the execution of the releases.
There are several minor objections to which the attention of the court was called, but we do not think they are tenable.
The act of 1785, ch. 80, sec. 11, expressly requires that, the case be continued, and the powers of this court are quite competent to give such a judgment as the substantial merits 

 [*15]  of the case require, without the unnecessary costs and delay to be incurred by sending it back to have the regular continuances entered, the omission of which, if indeed it be an omission at all, is but a clerical error. As to the alteration of the time within which the award was to be completed, we think the answer given at the bar quite conclusive, that there is nothing [**23]  to shew the period when the last day was agreed on, or to prohibit the court from concluding it was at the original execution of the agreement to refer.
If however, it appeared on the record, that the parties after the case was referred by rule of court, had changed the day, by consent fairly expressed, we should hesitate to say that either party could assign as a ground of objection, that the referees had not completed the award within the time first limited.
To do so would make the court tributary to the fraud perpetrated by a party against a solemn contract, deliberately executed under the eye of the court, and with its sanction.
JUDGMENT AFFIRMED.  

41 of 47 DOCUMENTS 

GEORGE FITZHUGH AND OTHERS vs. WILLIAM S. MCPHERSON, adm'r d. b. n. of LEWIS NETH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 G. & J. 51; 1837 Md. LEXIS 14 

June, 1837, Decided 

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

The bill in this cause was filed on the 6th day of April, 1833, by Samuel Maynard, administrator de b. n. of Lewis Neth, alleging that on or about the 10th October, 1791, George Fitzhugh, the elder, of Baltimore county, (since deceased,) conveyed unto Walter Dulany, (since also deceased,) certain real and personal property in trust and by way of mortgage, amongst other things to secure unto one Daniel Dulany, since deceased, the payment of the sum of £  230, then due and owing from the said George to the said Daniel; that afterwards Walter Dulany, conveyed all the aforesaid property to Mary Fitzhugh, George Fitzhugh, Jr. and Daniel D. Fitzhugh, and thereupon the said grantees on the 27th April, 1805, conveyed certain real and personal estate unto Rebecca Dulany, who was the executrix of the said Daniel, and to the said Walter Dulany, in trust and by way of mortgage, amongst other things to secure unto the said Rebecca as executrix, the payment of the aforesaid sum of £  230, and the further sum of £  400, with interest due thereon. The bill then charged that the debts secured by the said mortgages, have become satisfied, and the trusts thereby [**2]  created have been fulfilled, excepting only in so far as the same relates to the aforesaid sums of £  230, and £  400 and interest. That said sums remaining due, the right and title to the same, and the aforesaid mortgage last mentioned as a security therefor, were duly assigned and transferred unto Lewis Neth, that on or about the 22d April, 1822, the said Mary, George and Daniel D. Fitzhugh, came to a settlement with the said Lewis Neth, upon which the sum of $ 5,915, was due, for which they delivered to him their bond of that date, conditioned to pay said last mentioned sum with interest; that on the 26th January, 1825, the said Mary, George and Daniel, delivered unto Lewis Neth, an instrument (exhibit D,) declaring that the aforesaid bond was given for the principal and interest of the debts found by the said mortgage, and that the sum mentioned in said bond was a continuing charge, on the property mentioned in the mortgage. That a large sum is now due to the estate of Lewis Neth; that since the execution of the said mortgages, Mary, George and Daniel D. have executed another mortgage to the President and Directors of the Bank of Maryland of the property aforesaid. Prayer for a [**3]  sale of the property to pay Neth's debt, and for subpoena against Mary, George and Daniel D. Fitzhugh, and The Bank of Maryland, and for general relief.

The deeds referred to were exhibited with the complainant's bill.

The answer of Daniel D. Fitzhugh, admitted the mortgage from George Fitzhugh to Walter Dulany, but denied the alleged death of his father, George. It also admitted, the mortgage to Rebecca, but denied that the debts secured by them were paid. It alleged that the debt in the first mortgage is due to Upton Scott, with interest thereon since 1809; that the second, was assigned by Rebecca Dulany, to Thomas Buchanan; that the whole of the interest due on the debt of £  400, was paid to him up to the 31st March, 1810, and that the said debts afterwards by assignment came to the said Lewis Neth, but the defendant has no knowledge of the assignments of the mortgages. The settlement with and bond given to L. Neth, was admitted to have been made, but alleged there was a considerable mistake made in the calculation, and that a less sum was due than was admitted, which he prayed might be corrected--that a balance is still due. That exhibit filed with the bill was executed [**4]  by George Fitzhugh, the elder, who is not made a party, and by George Fitzhugh, Jr. who is made a party. This defendant admits that he mortgaged a part of the property described in the proceeding to The Bank of Maryland, in which Mary and George Fitzhugh, did not join; that he still owes the bank about $ 1,450. Prayer to be dismissed.

The complainant on the 30th December, 1833, prayed leave to amend his bill by making George Fitzhugh, the elder, a party defendant, for a discovery whether George Fitzhugh, the elder or younger executed the bond to Lewis Neth--and for an order of publication against Walter and Rebecca Dulany as absent defendants.

On the 19th December, 1833, the chancellor passed an order, reciting that the defendants, George and Mary Fitzhugh and The President and Directors of the Bank of Maryland being returned attached, for not answering, and not having answered, and directing the said defendants to answer, before the 4th day of December term next, otherwise the chancellor would take the bill pro confesso, or direct a commission to issue to take evidence.

The Bank of Maryland then answered, claiming $ 1,450, due them from D. D. Fitzhugh.

On the 1st [**5]  day of April, 1834, the chancellor passed an order, taking the bill pro confesso, against the defendants George Fitzhugh and Mary Fitzhugh, and ordered a commission, and the same as to George Fitzhugh, the elder.

After proof taken in the cause, which is sufficiently adverted to in the opinion delivered in this court, the chancellor on the 12th November, 1835, referred the cause to the auditor to state an account showing the amount due to the complainant. Further testimony was taken before the auditor. The auditor reported six accounts--the complainant objected to five of them, and prayed that account number five should be confirmed. The defendants filed no objections to the auditor's statement prior to the decree; account number five corresponded with the exhibit filed with the bill, showing the settlement at the time the bond was given to complainant, and the sums since received. This account was confirmed by the chancellor, and the mortgaged premises ordered to be sold by a trustee of the court for the purpose of paying the balance due, according to that account, by his decree of the 7th January, 1836.

In February, 1836, the defendants filed the exceptions to the evidence [**6]  and the auditor's statements, and then took their appeal to this court.  

DISPOSITION:
CAUSE REMANDED.  

HEADNOTES:

The objection, that a commissioner to take evidence under a commission from chancery, had not taken the oath annexed to the commission, is excluded from the consideration of this court by the act of 1832, ch. 302, it not having been made the ground of exception before the chancellor.

Exceptions filed in chancery under the act of 1832, ch. 302, after the decree, will not avail.

The design of the legislature was that the grounds of objection adverted to in the act of 1832, ch. 302, should be taken by exceptions filed in the cause before the passage of the decree, that the chancellor whilst decreeing, might have them in view, and that the opposite party might resort to the appropriate means of obviating their effects in chancery.

One of several defendants in equity who had answered the original bill, need not answer an amended bill, the points of amendment not affecting his interest in any way.

Defendants in equity who have not answered an original bill, are by an amended bill called on to answer both together; and the subpoena issued on the amended bill, calls for an answer to both.

The recital in a decree that an order to take a bill pro confesso unless, &c. had been duly served, is sufficient evidence of the fact of service in the appellate court.

C, as the agent of D, executed an assignment of a mortgage to B, in 1806. The mortgagors for about twenty-five years continued, time after time, to pay to B, and those claiming under him, interest due on the debts assigned. One defendant admitted the appointment of the agent, and others gave bond to the assignee to secure the debt. Under such circumstances, no express proof of the agent's power to make the assignment is necessary.

G. executed a mortgage to secure one debt--G. Jr., D, and M, executed a subsequent mortgage to secure the same and another debt. The mortgagors held different estates in the land, and both the debts came by assignment to the same party. In such a case the chancellor could not decree definitively unless he had all parties before him, and therefore all these subjects could be included in one bill.

An order to take a bill pro confesso, unless the defendant answers it by a day given, cannot be anticipated, and a decree pro confesso passed in anticipation of such day.

In considering whether a suitor in court is guilty of a wilful default, the court will not impute to him the same degree of knowledge of the practice of the court as that ordinarily possessed by the solicitors.

A party is not liable to pay compound interest on a debt for which he is jointly liable with others, upon their agreement to pay such interest. His assent to such an arrangement must be shown.

An interest may appear to be outstanding, as against one of the defendants in a chancery cause by his admission so as to make its proprietor a necessary party, though at the same time such interest as respects the other defendants, and the complainant in the cause, is barred by lapse of time. The want of such a party in a cause affecting real property and requiring a sale of it, would induce this court to remand the cause under the act of 1832, ch. 302.

Mortgagors cannot agree to compound interest and make it a charge on the mortgaged premises, to the prejudice of any portion of the mortgagees secured by such mortgage, or to the prejudice of subsequent mortgagees of the same property.

The decree which orders a sale of mortgaged property and its proceeds to be brought in for distribution, does not settle the rights of mortgagees inter se, and that there may be a conflict between them, after sale, is no ground for reversal. 

COUNSEL:
BELT and G. L. DULANY, for the appellants, contended that the decree of the chancellor ought to be reversed:

1. Because the commissioners did not take the oath annexed to the commission, and their proceedings under the commission are therefore null, and there is no evidence in the cause. Massey vs. Massey, 4 Har. and John. 144.

2. Because it does not appear from the record that the defendants, in the original bill, were summoned to answer to the amended bill.

3. Because the order, pro confesso, of 19th December, 1833, was not served upon George Fitzhugh and Mary Fitzhugh, by the 25th February, 1834, or at any other time.

4. Because the said order, pro confesso, gives the defendants until the 4th of December, 1834, to answer the bill; and yet a decree, pro confesso, was passed against them on the 1st day of April, 1834.

5. Because there is no evidence that William Cooke, who signed the assignment to Thomas Buchanan, as the attorney for Rebecca Dulany, was the attorney of Rebecca Dulany.

6. Because the decree is for the sale of all the lands mentioned in the proceedings [**7]  for payment of the two debts of £  230, and £  400, added together, and interest compounded thereon, when complainant's exhibits, A and B, shew that the life estate of George Fitzhugh, the elder, in 500 acres, and his fee simple estate in 188 acres, never were charged or chargeable with the payment of the debt of £  400.

7. The parties having titles to the mortgaged premises, are George Fitzhugh, the elder, who held a life estate in 500 acres, and a fee simple estate in 188 acres, and Mary Fitzhugh, George Fitzhugh, and Daniel D. Fitzhugh, who held the reversion in fee in the 500 acres; and an agreement to compound the interest, and render it a charge upon the whole property, must be made by all the parties in interest, but complainant's exhibits, C and D, shew that the agreement was made by three only of the four, and whether made by George Fitzhugh, the elder, or by George Fitzhugh, the younger, is left in uncertainty. Yet the decree is against all four, for the sum of $ 8,162 22, when the whole sum due from the party who did not enter into the agreement, could only have been $ 3,400 46, as appears from the auditor's account, No. 6.

8. Because the legal representatives [**8]  of Walter Dulany, deceased, mentioned in complainant's exhibit A, and Upton Scott, or his legal representatives, are parties in interest, and should have been parties to the cause.

9. Because the mortgagors cannot, by any agreement, compound the interest on the principal debt, and render the whole a charge upon the lands, to the prejudice of those whose debts are secured by the same mortgage, and of the Bank of Maryland, a subsequent mortgagee.

10. Because exhibits A and B, being conveyances of different estates, by different parties, at different times, to secure (in part) different debts, ought to have been the subjects of separate and distinct bills, and could not properly be embraced in one bill.

ALEXANDER, and R. JOHNSON, for the appellee.

1. The first point relied on is, that it does not appear that the commissioners took the oath which is annexed to the commission, and therefore the testimony is inadmissible; and 4 Har. and John. 144, is cited as an authority in support of the position.

On examination it will be found, that in the case cited, a commission had been issued to make partition under the act to direct descents; and the court decided, that [**9]  the commission and proceedings were defective, because the oath of the commissioners was not annexed to the same, and because the commission and return did not appear to have been ratified by the court, and refused to permit the commission, &c. to be read to the jury.

The court of Appeals affirmed this opinion without assigning their reasons; and may therefore have decided merely that the commission, &c. were inadmissible, because they had not been confirmed by the court. But whatever may have been the grounds of the decision, the case is not in point to show, that testimony is to be suppressed, because it does not appear that the commissioners took the oath prescribed to be taken.

It will be found on referring to 2 Mad. Ch. Pr. 413, (and the same rules are laid down in all other books of practice,) that regularly all objections to the execution and return of a commission, should be made before it passes publication; and if the testimony is suppressed, the court will permit a new examination for advancement of justice. In this state, objections are in general permitted to be made at the hearing, but are admitted with the same consequence--that the court will give time to [**10]  remove the objection by a re-examination or otherwise, in order to prevent the obstruction of justice. And it is apprehended that the Maryland practice is to be taken, with the further qualification, that at the hearing in chancery, (and a fortiori upon the hearing of an appeal,) every fair and reasonable intendment will be made in favour of the regularity of the proceeding. If this presumption is admissible, it will destroy the objection here made--which is not, that it does appear that the commissioners did not take the oath--but that it does not appear that they did take it.

Thus would stand the practice, independent of the act of 1832, ch. 302, sec. 5. But by that act it is provided, that "all objection to the competency of witnesses, and the admissibility of evidence, and to the sufficiency of the averments of the bill or petition, shall be made by exceptions filed in the cause. And no point relating to the competency of witnesses, or admissibility of evidence, &c. &c. 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 [**11]  as aforesaid, in the court of Chancery, &c."

An objection to the regularity of the execution and return of a commission, and to the right of the party to use the testimony taken under the same, is an "objection to the admissibility of evidence." Such objection, therefore, cannot in this court, be raised, or noticed, or determined, or acted upon, unless it shall plainly appear by the record, that the same was first raised by exceptions filed in the cause in the court of Chancery. It is incumbent on the appellants then, to show that this same point has been properly raised by exceptions in the court below. Can this be shown?

The final decree is dated on the 7th January, 1836. On the 18th February, 1836, nearly five weeks after the decree, and just as they were about to enter their appeal, the appellants filed their exceptions. Was this a compliance with the act of 1832? The appellee insists that it was not. The leading object of the act was, to prevent a party from springing upon his opponent in the court of Appeals, with objections which might have been obviated, if they had been suggested at any time before the decree. But the decree fixes the state of the parties. No amendment [**12]  to pleadings or proofs can be made at any time after a final decree. To gratify the intent as well as the letter of the act, then it must be laid down, that every objection must be filed before the final decree. For if exceptions are allowed to be filed after that event, the act will be virtually repealed by defeating, effectually, its objects.

The language of the act of 1832, is very similar to that of the act of 1825, ch. 117, relating to appeals from judgments of a court of common law. It has never been supposed, that a defect in the bill of exceptions could be insisted on by filing an objection after the judgment was rendered.

The truth is, that the commissioners were sworn, as could have been shown if the objection had been made at an earlier day.

2. The next objection is, that the defendants to the original bill were not summoned to answer to the amended bill.

At the time of filing the amended bill, none of the defendants to the original bill had filed their answers, excepting Daniel D. Fitzhugh; and instead of praying subpoena against them, it prayed they might answer the amended bill at the time they should answer the original bill.

In 2 Mad. Ch. Pr.  [**13]  369, it is said, that new subpoenas are not necessary in an amended bill.

1 Fowl. Ex. Pr. 106, an amended bill is considered as an original bill, &c. Those who are defendants to the original bill, and continued parties to the amended bill, need not be served with fresh process to appear to the amended bill; for having once appeared to the original bill, they are bound to answer the amended bill; but if any new parties are added to the amended bill, they must be served with new process, as to an original bill. And in 107, if a bill required to be amended before the defendant appears, it is done without costs; in like manner it may be amended after appearance, and before answer; and also after answer, provided, no further answer is required. And in 108, if the defendant puts in an insufficient answer, to which exceptions are taken, and they are either submitted to by the defendant, or allowed by the court upon argument, in either of these cases the plaintiff may apply to the court for leave to amend his bill without costs, and that the defendant may answer the exceptions at the same time that he answers the amendments.

1 Har. Ch. Pr. 106, it is laid down, that after an appearance,  [**14]  if before answer, the plaintiff may move and obtain an order of course, to amend his bill without costs.

Wyatt's Pr. Reg. 66; if a further answer be required, then a subpoena to appear and answer amended bill must be served; and therefore, if amendment be made before any answer filed, the new process will be unnecessary.

These authorities are ample to show that no new subpoena was necessary to be served on George and Mary Fitzhugh, who had not answered the original bill.

They are also sufficient to prove, that no new subpoena was necessary on Daniel, who had answered, as no further answer was required. The only material allegation in the amended bill is, that it is surmised or pretended that the bond and agreement in the proceedings, were executed by George Fitzhugh, the elder, and not by George, the younger; and an interrogatory is framed for a discovery upon this point. Now the amendment was made on the statements in Daniel's answer to the original bill. So that no further answer upon the subject could be required for the purposes of the complainant or defendant. In strictness, perhaps, he ought to have received a formal notice of the amendment. But the case of Woodhouse [**15]  vs. Meredith, 1 Jac. and Walk. 204, is in point to show that he has waived his right to insist on any such objection, by joining in the commission, and by taking testimony before the auditor, &c. and other proceedings in the case.

Nothing can be said of the form of the amended bill.

3. It is then said, the order, pro confesso, of the 19th December, 1833, was not served on George Fitzhugh and Mary Fitzhugh, before the 25th February, 1834, or at any other time.

This objection is colourable merely. The record is inaccurate in not setting out all the processes with their returns. But the decree, pro confesso, recites that the order, pro confesso, had been duly served--and it is presumed that recital will be as satisfactory here, as a copy of the order endorsed, served by some one who may profess to be a sheriff. This court has already decided, that a recital in the decree that the cause was standing ready for hearing, is sufficient to establish that fact, and it would seem that a like recital of service of the order would receive equal respect. Rigden vs. Martin, 6 Har. and John. 407.

4. That the order, pro confesso, gives the defendants time until the fourth day of [**16]  December term, 1834, to answer; and yet the decree, pro confesso, is passed against them on the 11th April, 1834.

This objection is well taken in fact, and it is remarkable that such an error should have been committed, and more especially by a clerk, who is remarkable for his accuracy. Yet it is believed that the error is not fatal. The order requires the parties to put in a good and sufficient answer to the bill, or a plea or demurrer to the same, on or before the fourth day of December term next of this court, and requires the service to be made before the 25th February next ensuing the date of the order, which is 19th December, 1833.

This court will judicially notice, that several terms of the Chancery court intervened between the date of the order and the term, which was to be held in the ensuing December. The expressions of the order are, therefore, inconsistent. The ensuing December term was not the next term of the court. And the question is, whether we shall restore consistency by rejecting December, or rejecting next.

The court must take notice, that all the processes of the Chancery, like those of other courts, are issued and made returnable from term to term;  [**17]  and that the order, pro confesso, is a process issuing under the provisions of the act of 1799, ch. 79, sec. 2, which directs the chancellor, in case the defendant has been returned attached, to pass an order limiting a day in the following term, on or before which the defendant must answer, &c. &c.; the act therefore required the time to be limited to the next term, and this court will assume that the court of Chancery intended so to frame its order, and more especially as the decree passed at the next ensuing term, expressly declares, that the defendants had failed to answer within the time limited by the order.

The defendants at this time were in contempt, and therefore are not entitled to the favorable consideration of the court. It will also appear, that they went before the auditor and took testimony in relation to the matters of account, and gave instructions in relation the account, and on the return of the accounts, the case was actually submitted in writing by the counsel for all the defendants. These facts prove they had notice of the decree, pro confesso, and suffered no injury from the inaccuracy of the order. If they were aggrieved by the decree and order, they ought [**18]  to have moved to set them aside.

3. That there is no evidence that William Cooke, who assigned Mrs. Dulany's claim to Thomas Buchanan, was her attorney.

As the assignment was made over thirty years ago, and no objection has ever been urged against it, we might presume the authority of the attorney.

But this objection comes with a very ill grace from parties who prove they have made two, and allege they have made other payments to Buchanan, as assignee; who have permited Mr. Neth to take an assignment from that first assignee, have settled an account with him, and made him sundry payments. It is precisely the requital which a man may expect for excessive lenity to his debtors.

The conclusive answer to the objection is, that the bill and the amended bill charges the assignments, and the decree, pro confesso, establishes that fact against Mrs. Dulany.

It is then objected, that the decree is for the sale of all the lands mentioned in the proceedings, for the payment of the two sums of £  230, and £  400, with interest thereon, when the complainants' own exhibit show, that George Fitzhugh, the elder's life estate in 500 acres, and his fee simple estate in 188 acres,  [**19]  were never charged or chargeable with payment of the debt of £  400.

As George Fitzhugh, the elder, is dead, no question can be raised as to the liability of his life estate to be sold. That life estate is expired. The whole estate has vested in possession in Mary, Daniel, and George, the children--and it will not be pretended that their interest ought not to be sold.

Then as to the fee in 188 acres. The bill alleges, that on the 10th October, 1791, George Fitzhugh, the elder, conveyed to Walter Dulany, certain real and personal property in said conveyance, mentioned in trust, to secure the debt for £  230. That afterwards the said Walter Dulany conveyed all the aforesaid real and personal property to Mary Fitzhugh, George Fitzhugh, Jr. and Daniel D. Fitzhugh. That on the 7th of April, 1805, the said grantees conveyed certain real and personal property, which is particularly described in the conveyance, to one Rebecca Dulany, and the said Walter Dulany, in trust, or by way of mortgage, to secure the debt of £  230, and the debt of £  400. That these two debts, and the mortgage last aforesaid, have been duly assigned to Lewis Neth. That on the 2d April, 1822, these mortgagors [**20]  came to a settlement with Lewis Neth, and executed to him their bond for the balance due, and on the 26th January, 1825, they executed a further deed or agreement, whereby it is declared, that the bond of 1822, was given to secure the principal and interest remaining due on the debts secured by the mortgage, and that the sum secured, to be paid by the bond, was a continuing charge on the mortgaged property.

The language of this last instrument, which is the complainants' exhibit D, is conclusive, to show that the parties to that instrument admitted the right of Mary, Daniel, and George, Jr. to mortgage the property, which is mentioned in the deed of 1805, and that all the debts thereby provided for, were well charged on all the property mentioned therein, and thereby intended to be conveyed. If, then, the averment in Daniel D. Fitzhugh's answer, and the proofs offered on behalf of all the defendants before the auditor be credited, viz: that the instrument was executed by George Fitzhugh, the father, and not by the son--we shall have the father's conclusive admission, that the title to all the property mentioned in the deed of 1805, was, at the time of its execution, well vested [**21]  in the mortgagors, and that they had authority to charge the same.

But if that averment and proof should be excluded, and if it should be taken that the bond of 1822, and deed or agreement of 1825, were executed by George, the son, the same presumption of title may be made from other circumstances--such as the relation of father and children, which subsisted between those parties--the very great probability, that the father had notice of the deed from Walter Dulany, to his children, and of the mortgage from his children, to Rebecca and Walter Dulany, and his acquiescence in these conveyances for more than 30 years, during which, the debts had been passed by two separate assignments.

Nor is it to be overlooked, that the deed from George Fitzhugh, the father, to Walter Dulany, is not a mortgage, but a trust to sell absolutely for payment of debts. Nor is there any apparent consideration for the deed of 1805, which charges the father's debts on the estate of the children, unless it be affirmed that under the deed from Walter Dulany to them, with the father's assent, they had acquired all the residuary interest in the father's estate; upon the whole state of the case it is submitted [**22]  as a fair inference, that the father finding himself irretrievably involved, had assigned all his property to his children, on their undertaking to discharge his debts. Upon this hypothesis their right to make the mortgage of 1805, would be unquestionable.

But it is to be observed, that George Fitzhugh, the father, is dead, and that his heirs, qua heirs, are not here objecting to this decree, as burthening unjustly his estate. The objection comes from his children, the mortgagors, who pretend that they had no title to the lands which they undertook to convey in 1805| Can they be permitted to impeach their own deed, upon the ground of a defect in their own title.

If the surviving appellants think their case can be improved by their assuming the relation of heirs at law of the father, we will recognize them as parties in this character, and we believe that in point of fact, they are entitled to assume that character. Upon this assumption, the former right of the father will have devolved on them. And they will now have the title which they professed to have in 1805, and which they professed to convey by the deed of that date. Can they set up this after acquired title to defeat [**23]  their own conveyance. As between the grantee and a stranger, it may be true, that the deed passed no more than the title, which the grantors had at the time of its execution. But as between the grantors and grantees, the deed itself is conclusive as to the title, and as to conveyance of title, and estops the party grantors from denying title, &c. or setting up an inconsistent title.

If we turn to the answer of Daniel Fitzhugh, we shall find admissions of every fact material to our recovery, and he does not rely on defect of his title to avoid his own act. Can he rely on a defence which he has not put in issue by his answer.

The bill has been taken, pro confesso, against the other defendants to the bill. Every thing in the bill is, therefore, admitted by them. Now the bill alleges, that the father conveyed certain property to Walter Dulany, that Walter Dulany conveyed the same property to the children. That the children made a conveyance to Rebecca and Walter Dulany, and by referring to the deed, which is part of the bill, we find it includes the very property which the children had acquired from Walter Dulany, and the bill charges the right of the complainant to have his [**24]  debt raised out of the whole estate. If all the facts charged in the bill had been admitted to be true, could the defendants afterwards have relied on their defect of title? And has not the statutory confession the same effect precisely as an express admission.

7. This point assumes as a preliminary, that the father had a fee in 188 acres, and an estate for life in 500 acres, and the reversion of this 500 acres was in the children. And hence concludes, that the bond of 1822, and agreements of 1825, are ineffectual, unless it can be shown that the father and all the children were parties to these instruments.

If the argument on the last preceding point, has succeeded in convincing the court, that in point of fact, the whole title of the father was vested in the children in 1805, or has since devolved on them, or that upon the present state of the proceedings, no question can be raised as to the title of the parties to the deed of 1805, then it will result that the assumption of fact is gratuitous, and the conclusion will be unwarranted.

The bill charges, that the bond and agreement were executed by all the children--the amended bill suggests the pretence, that they were [**25]  executed by George, the father, and not by George, the son, but relies on the original charge. The bill is taken, pro confesso, against the father, George, the son, and Mary, and consequently they admit the execution of these papers by all the children.

Daniel, in his answer insists, that these instruments were executed by the father, but on general replication and issue, he fails to make out this point. He admits his own liability, and therefore shows he has no interest in denying that which George, the son, (the party to be charged,) has confessed.

But it may be argued, that after the cause was sent to the auditor, the defendants proved the instruments were executed by the father, and not by George, the son. In the points annexed to the appellee's statement, it has been already objected, that this evidence is inadmissible. At present, therefore, it will be sufficient to say, that if it is considered as evidence offered by Daniel or Mary, it is inadmissible, because they have no interest in showing the fact, and if it is considered as offered by George, the son, it is inadmissible, because it would contradict that which he has previously confessed on the record.

But [**26]  if the evidence be admitted, it will show that the father, Daniel and Mary, executed, and are therefore bound by the agreement of 1825. And that agreement admits the debts are properly charged on all the property conveyed by the deed of 1805.

Then if we turn to the mortgage of 1805, we shall find it was executed by George, the son, and we shall find endorsed on the bond of 1822, credits for certain payments made by the son, on account. Of these payments, all the defendants have claimed benefit before the auditor. The bond is therefore adopted as a settlement by the son, and binds as firmly in equity as if he had executed it.

8. The representatives of Walter Dulany, are parties to the amended bill. And a decree has been passed against them.

The points already filed, state the grounds on which it is supposed that Upton Scott is not a necessary party.

9. It would seem to be conceded by this point, that as between the parties; mortgagor and mortgagee, a conversion may be made of the interest into principal; and that the only question to be agitated is, whether such conversion can be made to the injury of a subsequent encumbrancer?

The answer to this view of the [**27]  objection is short. It does not appear that the Bank of Maryland acquired its mortgage before the date of the bond of 1822. The bank does not by its answer complain of that settlement--nor is it shown or alleged that the settlement will operate to the prejudice of the bank.

If it be intended to agitate the general question of the lawfulness of a conversion as between debtor and creditor, it will be submitted that the affirmative side is conclusively established by the authorities. Interest already accrued may be converted into principal, although a prospective agreement will not be enforced.

The printed statement already submitted will explain the principles which were adopted by the parties in their settlement. The interest due at the time of the assignment from Mrs. Dulany to Mr. Buchanan, was converted into principal. And like conversion took place at the time of the assignment, by Mr. Buchanan to Mr. Neth, and at the time of the settlement with Mr. Neth.

If the parties to be charged, joined in or assented to this conversion of interest into principal, the right of the assignee to claim the compound interest will be clear. And it is clear that George, the son, if [**28]  he did not execute the bond and agreement did confirm the same by the endorsements of payments made by him on account.

But if his acquiescence was doubtful, it would not be difficult to show that under all the circumstances, the claim for the compounded interest ought to be sustained.

In 1665, Ld. Clarendon decided that on an assignment of a mortgage, all moneys really paid by the assignee, that were due to the mortgagee, should be principal to the assignee. 1st Chan. Ca. 67, Smith vs. Pemberton.

It is conceded in this case that Mr. Neth gave full value for this mortgage.

In Porter vs. Hobart, 2 Cha. Rep. 441, 3 Cha. Rep. 43, Ld. Bridgman decreed, that interest should be converted into principal for an assignee--that is, that he should have interest on the whole sum advanced by him. This decree was reversed by Ld. Shaftbury, in 1672.

It will be found that the peculiar circumstances of this case which commended the mortgagor to the political sympathies of Ld. Shaftbury, are the grounds for reversal. In all subsequent cases it is treated as the first and only case in which an assignee was refused interest on the whole amount of his advances.

Thus, in 1674-5, Ld.  [**29]  Notingham declared it was always the rule that the mortgagee assigning, the assignee should have interest for the interest then due, and it never was contradicted but in Porter vs. Hobart. 1 Chan. Ca. 258 Anon. 1 Vern. 168, Earl of Macclesfield vs. Fitten, decided by Lord North in 1683. 2 Vern. 135, Gladwyn vs. Hinchman, by Ld. Com. Maynard in 1689, are to the same effect.

In 1745, Ld. Hardwicke affirms the same rule, with this qualification, that the assignment be made with the concurrence of the mortgagor. His consent to have interest converted into principal is unnecessary. Arhenhurst vs. James, 3 Alk, 271.

In 1 Johns. Ch. Ca. 15, Ch. inclines to the same opinion. It is remarked on this case that Ch. Kent formed his opinion in a great measure on the case of Macclesfield vs. Fitten, as reported in the old edition of Vernon--from which it would seem that the question was adjourned over. A new edition with notes by Mr. Raithby, has been since published, in which it is shown from the Register's Book, that the case was actually decided in favour of the assignee, and Ld. Keeper North declared the like rule should prevail in all future cases.

10. This point may be disposed [**30]  of with two short remarks.

1. If the bill was multifarious the defendants ought to have demurred.

2. That in truth the relief is claimed on the second mortgage alone.  

JUDGES:
The cause came on to be argued before STEPHEN, ARCHER, DORSEY, CHAMBERS, and SPENCE, Judges.  

OPINIONBY:
DORSEY 

OPINION:

 [*69]  DORSEY, Judge, delivered the opinion of the court.
The appellants' first ground assigned for the reversal of the chancellor's decree is, that there is no evidence in the cause to sustain it, because, as is alleged, the commissioners did not take the oath annexed to the commission, and their proceedings under the commission are therefore null and void. Had this objection been taken by an exception filed at the proper time in the chancery court, it would necessarily have been considered and determined by the chancellor, and his determination would have been a fit subject for review in this court. But the question as now presented by the record is, by the 5th section of the act of 1832, ch. 302, excluded from our consideration. That section enacts "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,  [**31]  and the admissibility of evidence, and to the sufficiency of the averments of the bill or petition, shall 

 [*70]  be made by exceptions filed in the cause, and no point relating to the competency of witnesses or to the admissibility of evidence, or the sufficiency of the averments of the bill or petition, shall be raised in such causes in the court of Appeals, or noticed, or determined, or acted on, 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." It is true that the defendants more than a month after the passage of the decree did file a series of objections to it, one of which was, that now relied on against the admissibility of the evidence taken under the commission. But such a proceeding was wholly irregular, and cannot be regarded as in any wise relieving the defendants from the effects of the prohibitory enactment of the above mentioned section. The manifest design of the legislature was, that all objections to the admissibility of evidence should be taken by exceptions filed in the cause before the passage of the decree, that the chancellor whilst decreeing,  [**32]  might have them in view, and that the opposite party might resort to the appropriate means of obviating their effects, whilst the cause continued before a tribunal where such resort could be had.
The second ground of reversal to wit: because it does not appear from the record that the defendants in the original bill were summoned to answer to the amended bill, is equally unsustainable. When the amended bill was filed, none of the defendants had answered, save Daniel D. Fitzhugh, who, in his answer to the original bill had fully responded, as to all the matters in the amended bill by which his interest could be affected. To have required of him a second answer, would have been such an act of supererogation, as is never imposed upon its suitors by a court of equity jurisdiction. As regards the other defendants to the original bill they were called upon by the amended bill simultaneously to answer both. Such a call we deem sufficient, and no valuable result could have been obtained by the issue of new subpoenas.

 [*71]  The third ground is because the order, pro confesso, of the 19th December, 1833, was not served upon George Fitzhugh and Mary Fitzhugh by [**33]  the 25th February, 1834, or at any other time. This we think equally untenable. In the absence of all direct proof to the contrary, we regard the statement of the chancellor in his order of the first of April, 1834, "that the above mentioned order had been duly served," sufficient evidence of the truth thereof. Rigden vs. Martin, 6 H. & J. 403.
The fifth ground asserts that there is no evidence that William Cooke who signed the assignment to Thomas Buchanan as attorney for Rebecca Dulany was the attorney of Rebecca Dulany. Such an objection comes with an ill grace from the defendants under the circumstances of this case. The assignment was made in 1806. It has been acquiesced in, and recognized by the appellants from that time, until the filing of their notes in this court, a period of more than thirty years. They have for about twenty-five years continued time after time, to pay to the said assignee and those claiming under him interest due on the debts assigned. Daniel D. Fitzhugh, one of the appellants, in his answer in express terms admits the assignment of the debts due to the said Rebecca Dulany, to Thomas Buchanan; and three [**34]  of the four appellants, by a bond and agreement under their hands and seals, the first dated in 1822, the second in 1825, by necessary implication, and also in the said agreement in express terms admit the assignment and its validity, and in like manner make the same admission in 1835, in their instructions to the auditor to state the accounts. And they exhibit and claim credit for a receipt given in 1808, by Thomas Buchanan, (and which has been allowed to them) in which this assignment is expressly stated. In addition to all this, a decree, pro confesso, has been entered in this cause against Rebecca Dulany and her representatives, by which she admits all the allegations in the appellee's bills, one of which is the assignment of the said mortgage debts of the said Rebecca Dulany. Under circumstances like these to 

 [*72]  compel the appellee to produce further proof of the validity of the assignment in question, would be a departure from the settled doctrines of a court of equity, and at war with the dictates of reason and common justice.
The sixth ground assigned is "because the decree is for the sale of all the lands mentioned in the proceedings for payment [**35]  of the two debts of £  230 and £  400 added together and interest compounded thereon; when complainants' exhibits A and B shew that the life estate of George Fitzhugh, the elder, (who held a life estate in 500 acres) and his fee simple estate in 188 acres never were charged or chargeable with payment of the debt of £  400. To this objection it is only necessary to refer to the aforesaid bond and agreement of 1822 and 1825, in the latter of which the said George Fitzhugh, the elder, ratifies and confirms the said mortgage of 1805, and makes as far as he is concerned, the land and premises therein mentioned, including both his said life and fee simple estate, liable for the debt for which the chancellor has decreed its sale.
We do not concur with the appellee's counsel, when they insist on the rejection of Samuel Ridout's testimony, as having no relation whatever to the matters of account referred to the auditor, nor do we believe it to be the interest of the appellee that we should do so; but for the proof that the bond and agreement of 1822 and 1825, were executed by George Fitzhugh, the elder, it is not easily discoverable from the record how his life estate in the [**36]  500 acres, or his fee simple in the 188 acres, can be charged with the debt of £  400, on the compound interest thereon and on the £  230 debt. But for this proof the auditor's statement No. 5, could not be sustained as against George Fitzhugh, the elder, nor could the decree of the chancellor predicated upon it, share a better fate. The accounts between the parties, the charges upon the respective mortgaged estates of the several appellants, could not have been correctly stated by the auditor until the facts established by Ridout's testimony were laid before him. The order of the chancellor 

 [*73]  therefore was in this respect a sufficient warrant for the acts of the auditor.
The tenth ground upon which a reversal of the decree of the chancery court has been claimed is, "because exhibits A and B, being conveyances of different estates, by different parties, at different times, to secure (in part) different debts, ought to have been the subject of separate and distinct bills, and could not properly be embraced by one. There is no weight in this objection. The chancellor could not have decreed definitively in reference to the mortgaged premises or any of the rights [**37]  of the respective parties upon any other bill than that which embraced in it, all the conveyances. Had the bill been filed only upon the deed of 1791, and the defendants in their answer had set out the deed of 1805, the complainant would have been compelled to amend his bill, and introduce into it the latter conveyance, and had the respondents then have set out the bond of 1822 and agreement of 1825, the complainant must again have asked leave to amend his bill to charge in it, the execution of such bond and agreement.
The correctness of the decree therefore stands unimpaired by any thing alleged in the first, second, third, fifth, sixth, and tenth grounds, on which, its reversal has been insisted on; but under the present proceedings and proofs in the cause it cannot evade the force of the fourth, seventh, eighth, and ninth objections.
The fourth is because the said order, pro confesso, (meaning the order of the 19th December, 1833,) gives the defendants until the 4th of December, 1834, to answer the bill, and yet a decree, pro confesso, was passed against them on the 1st day of April, 1834. To have made absolute the order, pro confesso, as was done on the 1st day of [**38]  April, 1834, the chancellor must have been satisfied that the order of the 19th of December had been served upon the defendants, and that they were knowingly guilty of a default in not filing their answer within the time limited by the order. It is true that a solicitor in chancery, knowing the terms of the 

 [*74]  Chancery court to be held in March, July, September, and December, and that by the second section of the act of assembly of 1799, ch. 79, the chancellor was not authorized to fix a day for the filing of the defendants' answer, beyond the ensuing March term, would contrary to the natural import of its terms have understood the order as fixing the time for filing the answer on or before the 4th day of March, next term, instead of on or before the 4th day of December term next, yet it would be unreasonable and inconsistent with the principles of equity and justice to impute to an uninformed suitor, the same knowledge and understanding, to visit on him the sins of a wilful defaulter, and to punish him accordingly. We think therefore that the order, pro confesso, of the 1st of April, 1834, was erroneously passed, and can give no support to the decree in [**39]  this cause.
The point raised by the appellants' seventh ground under the insufficient proofs taken in the cause cannot be resisted. To bind the interest of George Fitzhugh, junior, in the mortgaged premises for the interest compounded at the dates of the assignments of the mortgage debts to Buchanan and Neth, his concurrence in the making of such assignments must be proved, or his subsequent ratification of, or assent to such compounding must be shewn--he cannot infer it solely from the credit claimed from exhibit E, because the payments on which those credits rest do not appear from any testimony in the record to have been made by him, or with his knowledge or approbation. Had the appellee have proved (as doubtless he could have done) the truth of the endorsements of payments made on the bond of 1822, the difficulty in question would have been effectually obviated.
The eighth ground is, because the legal representatives of Walter Dulany, deceased, mentioned in complainant's exhibit A, and Upton Scott, or his legal representatives are parties in interest, and should have been parties to the cause. The debt due to the representatives of Walter Dulany having [**40]  since the deed of 1791 been of more than forty years standing, and there being in the record nothing to show such a continuance, 

 [*75]  revival, or recognition of that debt, as would render it a subsisting lien upon the mortgage premises or any part thereof, and the appellee having in his bill of complaint alleged, that the said debt was paid and discharged; we think the presumptive bar from the lapse of time, is so conclusive against their claim, that it was not necessary that the appellee should have made them parties to this suit. But Upton Scott, or his representatives stand in a very different situation. Daniel D. Fitzhugh, one of the mortgagors, in the deed of 1805, explicitly admits in his answer, the present existence of Upton Scott's debt. Such admission although it does not so far revive the debt as to make it available, when in conflict with the claims of the appellee, does operate to remove the presumptive bar from length of time so far as the rights of Daniel D. Fitzhugh are concerned, and restores it to full life as an effective lien on all such interest of Daniel D. Fitzhugh in the mortgage premises as may remain after satisfying the claim of [**41]  the appellee. Upton Scott then, if living, or his representatives in the event of his decease, have such an interest in the mortgage premises, that as parties to these proceedings they should have an opportunity of asserting and protecting their rights.
The 9th ground which is relied on by the appellants, for reversing the decree is thus stated, because the mortgagors cannot by any agreement compound the interest on the principal debt, and render the whole a charge upon the lands to the prejudice of those whose debts are secured by the same mortgage, and of the Bank of Maryland a subsequent mortgagee. The first branch of this proposition has not been, and cannot be contended for, if by debts secured by the same mortgage, is meant debts which are subsisting liens upon the mortgaged premises and are obnoxious on the part of the plaintiff, if otherwise conflicting with his claims, to no other bar to their recovery, than that arising from the compounding of interest. But the last branch of the proposition (as to the rights of the Bank of Maryland,) involving in its consideration some important principles of law, as yet unsettled in 

 [*76]  Maryland, not appearing to [**42]  have been decided by the chancellor and its decision neither tending to the affirmance or reversal of his decree, we mean to express no opinion upon it.
The proceedings in the cause have not as yet reached that state of maturity, which they must obtain before that question is presented for adjudication. The decree as respects the conflicting claims of the parties upon the mortgaged premises makes no decision; it simply orders a sale of the property, and that the proceeds be brought into court for distribution. Non constat that as between such claimants there will be any conflict; the mortgaged premises may sell for enough to satisfy all the liens upon it. In the event of its not doing so, when the auditor has stated the account distributing the fund, and not before, will the chancellor be called on to adjudicate upon the rights of the claimants.
It appearing to this court that the substantial merits of the cause will not be determined by the reversing or affirming of the decree of the chancellor, and that the purposes of justice will be advanced by so doing, it is thereupon this 22d day of December, 1837, ordered and adjudged by the authority of this court, that this cause be [**43]  remanded to the court of Chancery, for the purpose of amending the pleadings, making Upton Scott, if living, or if dead, his legal representatives, a party or parties defendant, and that such further testimony be taken therein, and other proceedings had under the chancellor's direction, as shall be necessary for determining the cause upon its merits.
CAUSE REMANDED TO CHANCERY. 

42 of 47 DOCUMENTS 

HENRY BARRICKMAN vs. THE COMMISSIONERS OF HARFORD COUNTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 G. & J. 50; 1839 Md. LEXIS 28 

December, 1839, Decided 

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

The bill in this cause was filed on the 22nd December 1835, by Henry Barrickman, and alleged, that upon application of sundry persons to the Commissioners of Harford county, representing that at a certain period of the year, the road leading from Gunpowder Neck to Baltimore, by the way of Joppa, was impassable, the said commissioners on the 27th July 1830, did order that a commission should be directed to Stephen G. Raphael, James Reardon and Thomas I. Caldwell, to lay out a new road, according to the prayer of the petitioners; that a commission was issued, a new road laid out and a full report of the proceedings of the commissioners made. That the old road being the one complained of, ran through the complainant's farm about a mile, and that the new road ran for the same, or a greater distance through complainant's plantation; that the commissioners, Raphael, Reardon and Caldwell, when they were about to locate the new road, proposed to your orator to take the old road in lieu of the new one, for the whole distance that the old one ran through the farm of your orator, and to which said proposition he assented. That after said commissioners [**2]  had located the new road, and made out their report thereof, they applied to complainant to give them a memorandum in writing, relinquishing all claim to any damage, and drew up the same at the foot of said report, and required him to sign the same; that upon the faith and confidence of the arrangement herein before mentioned, that he should have the old road, he signed the said paper, and that the sole inducement for signing said relinquishment of damages for the new road, was the express assurance and verbal agreement, that the county would surrender absolutely to him the old road, and all and singular its rights over the same. That afterwards, on the 16th August 1830, the report of the location of the new road, with the relinquishment of damages aforesaid, in consideration of the surrender of the old road, was ratified by the Commissioners of Harford county, the new road opened, made passable and used by the public, and the old road surrendered to your orator by S. G. Raphael, the agent of the said commissioners of Harford county; that since the opening of the new, and surrender of the old road, the said commissioners have unjustly and wrongfully reclaimed the said old road, and [**3]  appointed a supervisor thereof, whereby complainant is deprived of the same, and the exclusive right thereto, which they had expressly assured to him for a full and valuable consideration--prayer for a decree, specifically enforeing the aforesaid agreement, or compensation in damages to the value of the old road, if the commissioners have a right to reclaim the same, and for general relief. Subpoena for the commissioners of Harford county, &c.

The defendants answered the bill, admitting there was a petition to make a road through the lands of the complainant, and that a commission issued thereon as stated; that the commissioners appointed, returned a paper appended to their report, purporting to be a relinquishment on the part of complainant, of all claim for damages; that there is no proceeding entered on their books, or records, to show, that said complainant relinquished all claim to damages, in consideration of his having the bed of the old road; that the only course the defendants could pursue, in the exercise of the powers vested in them, was to issue a commission, and refer the damages which landholders might sustain, to the judgment of special commissioners, which was [**4]  done in this case, and that no damages were awarded to complainant; the new road, according to the commissioner's return, conferring advantages equivalent to the disadvantage it would inflict on landholders; that after the new road was laid out, it was ascertained it did not serve the public convenience as well as the old one, it was therefore abandoned, and the use of the old road resumed; that the commissioners of survey, had no authority to make contracts, so as to bind these defendants to pay damages.

The various proceedings referred to in the bill and answer, were established under a commission to take evidence, and the Chancellor, (BLAND,) on the 13th November 1837, dismissed the bill with costs, from which the complainant appealed to this court.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

The fourth section of the act of 1827, chap. 81, confers upon the Commissioners of Harford county, all the power they possess in relation to the public roads of the county, and gives them the same jurisdiction formerly belonging to the levy court.

The jurisdiction being limited, must be administered in the manner, and according to the terms of the law creating it, and these appear by the act of 1821, chap. 152, sections 1 and 2.

The commissioners can neither open, alter, change or close a road, but on the application in writing of citizens of the county, nor can they ascertain damages, except upon the report of commissioners appointed to value and assess them, or by the verdict of a jury, if an appeal be taken.

A verbal contract made by the commissioners so appointed, though subsequently assented to by the county commissioners, will not control their formal report, that no damage has been sustained by the party through whose land a road is laid out.

Where a special jurisdiction is created, and its mode of proceeding, and the extent of its powers are particularly defined, and it exceeds it jurisdiction with the concurrence of a party who is thereby injured, such party is not entitled to compensation by requiring the special jurisdiction either to pay damages, or do some other act beyond its jurisdiction.  

COUNSEL:
CONSTABLE for the appellant.

1st. The defendants had authority to enter into the contract sought to be enforced.

By the act of 1827, ch. 81, sec. 3, the defendants were created a corporation and clothed with power to "hold, sell and convey all kinds of estates, property and effects, and of doing all such acts as shall be necessary to the exercise of all powers vested in them, &c.," and [**5]  by the fourth section they are vested with all the "power, rights and privileges of the justices of the levy court." The act of 1821, chap. 152, sec. 1, and the supplement thereto of 1822, chap. 19, expressly confers on the levy court the "power to open any new road, or shut up, or alter any old road." From an examination of these statutes, there can be no doubt of the defendants competency to make the contract. They had full power to "shut up any old road" and to "open any new one," and being liable for the damages that a landholder might sustain, by the opening of a new road over his farm, they could treat for their liquidation or relinquishment in the same manner as an individual applying for a private way might. They could offer other rights instead of money, and if in their judgment the public interest would be subserved by surrendering an old road for the right of way for a new one, they might do so. That portion of the old road which was the consideration for the relinquishment of damages, belonged in reversion to the complainant, and would have passed to him in possession upon the non user of it by the public, but in order to secure its enjoyment, the complainant agreed to [**6]  surrender other land deemed by defendants more advantageous for the scite of the road; and after defendants have taken possession of this, and rendered it unfit for cultivation, by excavating and grading a road, and imposed on complainant the expense of much additional fencing, they refuse to be bound by the agreement, and reclaim the bed of the former road. Manifestly in fraud of the rights of complainant.

2nd. That defendants made the contract with complainant is fully established. The commissioners appointed to lay out the new road, and expressly empowered by the 2nd section of the act of 1822, chap. 152, to assess the damages complainant might sustain thereby, agreed to give him the bed of the old road within the limits of his farm, in satisfaction of damages; and upon this assurance obtained from him a relinquishment of damages in writing, which they append to their report to defendants, who, with a full knowledge of the facts ratified and confirmed it. Even if they had not previously given such authority to the commissioners, their adoption of the agreement bound them as effectually, and gave the complainant a clear right to have it observed and executed in good faith. If [**7]  it subsequently appeared to them, that the new road would not answer so good a purpose as the old one, they were competent to have ordered another commission and caused the old road to be opened again, but in so doing they were bound to treat it as the private property of complainant, and to have made him just compensation for its appropriation again to the public use.

All the advantages of the contract were on the side of defendants, for if they had proceeded to open the new road and have shut up the old one, without such an agreement with complainant in respect to damages, he would have become entitled to the bed of the old road and also to damages for the land occupied by the new one.

We insist therefore that the complainant was entitled to have the contract performed, and the Chancellor should have enjoined defendants from exercising or authorizing the exercise of any authority or right in reference to the old road--or he should have decreed the complainant compensation in damages equal to the value of the land occupied by the old road and cost of fencing erected upon the faith of the agreement with the defendants. Amount proved under commission, and for which complainant [**8]  asked a decree, was $ 312 50/100.

There is no doubt as to the jurisdiction of the Court of Chancery in such a case. It may decree the specific performance of a general covenant of indemnity though it sound only in damages. Champion vs. Brown, 6 John. Chan. Rep. 406, and assess damages for its non-performance, McFerran vs. Taylor & Massie, 3 Cranch 270, S. C. 1 Peters' Cond. Sup. C. Rep. 525. In this case the damages were assessed by a jury, but that was under the peculiar practice adopted in Kentucky, of requiring the intervention of a jury to ascertain facts in chancery suits.

If the Court of Chancery could not satisfactorily determine upon the evidence in the case, the amount of damages complainant should recover, it ought to have retained his bill, and awarded an issue of quantum damnificatus. 1 Eq. Ca. Abr. 18. 1 P. Wms. 570. 2 Bro. Ch. Rep. 341. 1 Vern. 189. 1 Ves. Jun. 329. 12 Ves. 395, and Phillips vs. Thompson, 1 John. Ch. Rep. 132. The testimony, however, seems to be clear and full as to the extent of complainant's damages, and presents a case which the Court of Chancery in England would refer to a master instead of awarding anissue to be tried by a jury.

The [**9]  appellant therefore submits that the decree of the Chancellor dismissing his bill is erroneous and should be reversed, and that this court make a decree in the premises, allowing him the amount of damages which the proof in the cause shews that he has sustained.

OTHO SCOTT for the appellee.

Referred to the act of 1821, ch. 152, sec. 1 and 2, and insisted there was no contract established in this case. That Barrickman had only stipulated for what in point of law, he was entitled to on the opening of the old road. The public could use the old road, until the new one was opened. The court cant decree specific performance of the agreement. It is imperfect. The commissioners of the county can only pay in money for the advantages of the road. Their powers were limited. When the new road was opened, the complainant was compensated. In that mode he received what he was entitled to. A Court of Chancery cannot by a decree for specific performance, oblige an inferior jurisdiction to perform one of its duties, on the ground that a contract has been made to discharge such duty. The mode of reaching the inferior jurisdiction is by mandamus. They are thus caused to perform legal duties;  [**10]  of course there can be no decree for damages. The commissioners had no power to contract for a relinquishment of damages.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*56]  CHAMBERS, J., delivered the opinion of the court.
The facts in this case as evidenced by the testimony in the cause, show that the appellants property has been injured by the non-performance of an agreement, made as he supposed with persons competent to enter into it. His counsel has endeavored to establish the proposition, that the appellees were competent to bind themselves by the contract alleged in the bill, but we think he has failed. The commissioners can have no power but what is conferred upon them by the act of Assembly, whereby they are created. The 3rd section of the act of 1827, ch. 81, is referred to, as authorizing them to take, hold, sell and convey all kinds of estate, property and effects, and of doing all such acts as shall be necessary to the exercise of all powers which are, or shall be vested in them by this act, or any other act of Assembly, as fully and effectually as corporate bodies may or can lawfully and rightfully do. Without stopping to inquire [**11]  how far the general expressions, in the former part of this section are to be restrained by what follows, we do not find here, any authority particularly relating to such a contract as the one alleged.
The powers, and as we suppose, all the powers possessed by the commissioners in relation to the public roads of the county, are derived to them by the provisions of the fourth section of the act referred to, which vests in them the jurisdiction formerly belonging to the levy court of the county.
That jurisdiction enables them, as it previously enabled the levy court, to "open new road, or alter, change or shut old roads," upon application to them by petition of certain citizens of the county, and in the manner prescribed.
The jurisdiction being limited, must be administered in the manner and according to the terms of the law creating it. The act of 1821, ch. 152, sec. 1st and 2nd, will show what these are. It is sufficient to say, that the commissioners can neither open a road, nor alter, change or close one, but after 

 [*57]  an application in writing by citizens of the county, nor can they ascertain damages, but by the report of commissioners appointed to value and assess them,  [**12]  or by the verdict of the jury directed to be called, if an appeal be taken. Unfortunately for the appellant, both he and the commissioners appear to have entertained the erroneous opinion, that the verbal contract and arrangement made by the three commissioners, appointed by the county commissioners, and subsequently assented to by the county commissioners, would be binding so as to control the written and formal report of the three commissioners, finding that the appellant had sustained no damage as well as the formal acknowledgment of the appellant, returned with their commission, in which he relinquishes all claim to damages. We attribute the proceeding of the commissioners to an erroneous opinion of their powers, because they could not have designed a personal injury to the appellant, and because unless they supposed they were right, their conduct would subject them to imputations and censure, which are neither made, nor as we are persuaded, merited; nor do they appear to have been ever applied to, and consequently they have never refused to do the only thing in their power to redress the appellant, by shutting up the road when regularly clothed with jurisdiction by a compliance [**13]  with the preliminary requisites of the law.
In the view here taken of the case, the commissioners of Harford could not do otherwise than they have done; they could not assess damages, because the three commissioners had filed their formal report, that no damages were sustained by the appellant, who so far from using the means provided by the act to reverse their opinion, had filed his written relinquishment. They could not void appointing a supervisor for the old road, when they discovered their error, because that road continued to be one of the public roads of the county, and as such, it was their duty to provide for its repair. No application was made to shut it up, and they could not shut it up, without application in the mode prescribed.
We cannot adopt the doctrine, that where a special jurisdiction 

 [*58]  is created, and its mode of proceeding, and the extent of its powers are particularly defined, and it exceeds its jurisdiction with the concurrence of a party, who is thereby injured, compensation is to be made to the party injured by requiring the special tribunal, either to pay damages, or to do another act beyond its jurisdiction.
We do not think this is to be [**14]  done in any mode, by any tribunal, certainly not by a Chancery Court by a decree. We therefore affirm the decision of the Chancellor, dismissing this bill.
DECREE AFFIRMED WITH COSTS.  

43 of 47 DOCUMENTS 

JAMES D. SUTTON vs. ROBERT CRAIN, Adm'r C. T. A. of HENRY WATTS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 458; 1839 Md. LEXIS 19 

December, 1839, Decided 

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

This was an action of Trover, commenced on the 4th day of July 1837, in which the plaintiff, now appellee, declared that, in the year 1832 Henry Watts was possessed of certain negro slaves of great value, &c., to wit, negro slave called Sarah, and being so possessed thereof, having made his will in due form of law, departed this life, and afterwards and before the granting of the letters of administration c. t. a. to the plaintiff, and before the appointment and qualification of an executor of the said Henry, the said Sarah had issue of her body a certain negro slave called Mary, of great value, &c., and afterwards and before the appointment of an executor or administrator as aforesaid, the said negro Mary was casually lost, and then and there came into the possession of the said James D. Sutton by finding; and after alleging the appointment and qualification of the plaintiff as, &c., charged the defendant with a refusal to deliver the slave Mary to the plaintiff, and a conversion of her to his, the defendant's, own use, &c., &c. The defendant pleaded non cul, et non cul infra tres annos, on which pleas issues were joined.

1st Exception.  [**2]  At the trial of the cause, the plaintiff offered in evidence the letters of administration granted to him by the orphans court of Saint Mary's county on the 13th June 1826, on the personal estate of Henry Watts; that the said Henry Watts departed this life in the year 1819, having first executed his last will and testament, as follows:

"I give and bequeath to my loving wife Sarah Watts and her heirs, in lieu of her third part of my estate, the following property, viz: one negro man Jess; one negro woman Catharine and her three children; all the household furniture she had when we were married; my carriage and carriage horse; six ewes; three cows and calves and ten head of hogs (her choice); also, during her life only, the use of one third part of all my real property; also, during her life the use of negroes Nell, Anna and Daniel, after which they and their increase to be the right and estate of my son Richard Henry Watts. I give and bequeath to my grand-daughter Susan Elizabeth Watts, one negro girl by the name of Lydia, and her increase. To the creditors of my deceased son George Hawkins Watts I give all the stock and furniture belonging to me at his death he had in his use [**3]  and occupation, provided an equitable dividend of the same can be made by the whole of them, within six months after my decease: otherwise, I bequeath the said stock and furniture to the children of my said son George H. Watts; and to said children and their heirs I give the following property: negro man Perry, negro woman Amey and all her children, and negro woman Sarah, to be paid to them when they arrive at age, and no distribution of the same to be made among them until that period. And I direct that the profits arising from the hire or use of said negroes, be applied towards their education and maintenance respectively, until a division of the same under this my will can take place; and in case either of them shall die before they arrive at lawful age, then I give the share of him or her so dying, unto the survivor or survivors of them. It is however my desire that their mother, Ann Watts, shall have the exclusive use of negro Sarah until the youngest of my said grand-children arrives at age." After some other directions not material, the testator constituted his son Richard Henry Watts residuary legatee of his real and personal estate, and executor of his will.

The plaintiff [**4]  further proved, that the negro woman Sarah came to the possession of Mrs. Ann Watts immediately after the death of the said Henry Watts, and so continued until all the children of Ann Watts arrived at full age; that negro girl Mary, the subject matter of this suit, was the daughter of negro Sarah, who is bequeathed in said will to Mrs. Ann Watts, and born after the death of Henry Watts, and after her mother Sarah came to the possession of Mrs. Ann Watts, in accordance with the will of the said Henry Watts, and long before the youngest of Mrs. Ann Watts's children came of age; that Mrs. Watts claimed negro Mary, exercised acts of ownership over her, and sold and delivered her to defendant, on the 10th November 1834, and that the defendant in this cause, afterwards, in 1836, sold said negro girl Mary, and received the amount of money for which she sold to his own use. Whereupon the defendant prayed the opinion and direction of the court to the jury, that from these facts, if they believe them to be true, the plaintiff is not entitled to recover, because negro Mary, the property in dispute, was the property of defendant, which opinion and direction the court refused to give. The defendant [**5]  excepted, and the verdict and judgment being against him, he brought the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

It is settled, that the bequest for life, of the use of a female slave, vests in the legatee a property in the issue born during the existence of the life estate, upon the principle, that the issue is to be considered, not as an accessary, but as a part of the use, to go to the person to whom the use is limited.

The assent of the executor is indispensably necessary to perfect the title of the legatee of a slave, and this is equally true with reference to the issue of a female slave, born whilst the mother, the subject of the legacy, is in the possession of the legatee. No title to such issue can be maintained, without proving the assent of the executor to the bequest of the mother.

Such assent may be presumed from facts and circumstances, but a prayer taking that question from the jury, and submitting it to the court as a legal presumption, was properly refused by the county court.  

COUNSEL:
MCMAHON for the appellant.

This is an action of trover, brought by the appellee, as administrator with the will annexed of Henry Watts, against the appellant, to recover for the conversion of a slave called Mary. The issues in the case were on the pleas of not guilty, and limitations.

The appeal is from the refusal of the court below to grant the prayer submitted on behalf of the appellant.

1st. The proposition submitted on behalf of the appellant is, that the bequest of the exclusive use of negro Sarah to Mrs. Ann Watts, entitled her to the child Mary, who, it is conceded, was born at a period when, by the will, Mrs. Watts had a right to the exclusive use of the mother Sarah. And if so, the judgment must be reversed, as it is admitted that the defendant purchased Mary from her.

Upon referring to the bequest, it will be seen, that after giving several named negroes to his grand-children when they all arrived at age, and the profits from their hire in the intermediate period for their maintenance, he then excepts Sarah out of this bequest so far as to [**6]  give the exclusive use of her to Mrs. Watts until the youngest of them arrives at age. The use and all the profits of the use or employment of Sarah during that period enured to Mrs. Watts. She was during that period the usufructuary, to the fullest extent, as it regards Sarah.

If there had been a like devise of the use of Sarah to Mrs. Watts for life, with remainder over to her children, and Mary had been born during her life estate, it is settled by the decisions of our courts, that Mrs. Watts would have been absolutely entitled to Mary, as the increase during her life estate. Scott vs. Dobson, 1 Harr. & McHen. 160, and Somerville vs. Johnson, 1 Harr. & McHenry, 348, &c., conclude this question. And they establish that there is no difference as it regards the right to the increase, between a devise of the mother for life, and a devise of the use of the mother for life. In the case of Somerville vs. Johnson, the bequest (which appears in 1 Harr. and McHen. 348,) was "of the use of the named negroes during her life;" and she was by such bequest of the use held to be entitled to the increase; nor can there be any sensible distinction, with reference to this question, between the [**7]  bequest of the mother for a limited period, and the bequest of "the use," or as in the present case, "of the exclusive use" of the mother. It will be seen by reference to the decisions, that the right to the use, and to the perception of the profits arising from that use, and the loss of the use consequent upon the pregnancy and delivery of the mother, coupled with the obligation to take care of and sustain the issue, form the chief foundations of the right to the increase. The grounds of the decision are not fully disclosed by the report, but they are stated by Mr. Dulany, in the opinion given by him to the Governor acting as Chancellor. See 1 Harr. & McHen. 353, in which opinion he considers the question so fully established by the previous decision, as not to admit of doubt.

These decisions have never since been questioned; but have on the contrary been since recognized in several cases; as in Standiford vs. Amos, 1 Harr. & John. 526, where the representative of the legatee for life of a slave was held to be entitled to the issue born during the life estate, as against the remaindermen: and in Hamilton vs. Cragg, 6 Harr. & John. 18, the analogous case of Chew vs. Gary, 6 Harr.  [**8]  & John. 526. In the case in 6 Harr. & John. 18, his Honor Ch. J. BUCHANAN delivered the opinion of the court: after citing the above mentioned cases from 1 Harr. & McHen. and 1 Harr. & John. says, "by these it is settled, that where a negro woman bequeathed to one for the life of the legatee, has issue during his life and after the death of the testator, such issue shall belong to the legatee, on the ground that the issue is to be considered not as an accessary, but as a part of the use, and to go to the person to whom the use is limited." Acc. also, per Baltimore County Court, ARCHER, C. J., in 7 Harr. & John. 263.

It only remains then to inquire, whether there is any difference, as it regards the right to the increase, between a bequest "of the use for life," and a bequest "of the use until some future event occurs," or as here, a bequest of the exclusive use until the youngest of his grand-children, the children of his son George, arrive at full age. And it will be at once obvious, that, looking to the grounds of these decisions, no such distinction can be established. They are both gifts of the use until a future event occurs, the one being a gift of the use until he, the [**9]  legatee, dies--the other of the use until another legatee in remainder arrives at age. But it is not the duration of the use, the time for which it is limited, or during which it may possibly continue, nor the event by which it is determined, that give or determine the right to the increase. The issue go to the legatee entitled to the use at the time when the issue is born, "on the ground" (to use the above quoted language of this court in 6 Harr. & John. 18,) "that it is considered not as an accessary, but as a part of the use, and to go to the person to whom the use is limited." It passes, therefore, "as a part of the use;" and the legatee entitled to the use of the issue as born, takes it as a part of the use.

Nor can it be contended that the terms used in this bequest were only intended to give the mere right to the services of Sarah; and that the right to these was all that passed. The present case is even stronger than any of the cases referred to. The case of Somerville vs. Johnson, 1 Harr. & McHen. 348, settles the construction as to the bequest of the use. That it includes not only the right to the services of the woman, the subject of the bequest, but also to her increase [**10]  as a part of that use; and the bequest in this case is in stronger language, being of the "exclusive use." And it will be seen, also, by referring to other parts of the will of Watts, that he himself saw the import and force of such terms, and avoided them by the use of express words to pass over the increase to the remaindermen. Thus after making several bequests to his wife, he also bequeaths "to her during her life the use of negroes Nell, Anna and Daniel, after which they and their increase to be the right and estate of his son Richard." And so also in the next bequest of negro Lydia, he also expressly bequeaths her increase, whilst the bequest over to his grand-children, which is under consideration, is merely of those named, (omitting all mention of the increase,) to be paid, i. e., divided, &c. amongst the children when of age. See also Evans & Iglehart vs. Merriken, 8 Gill & John. 48, 49.

Secondly. Conceding then that Mrs. Watts was entitled to Mary, the increase during her right to the use of the mother Sarah, and that the defendant, as purchaser from Mrs. Watts, is entitled to her right, can it be contended, under the circumstances of this case, that the appellee, as [**11]  administrator, was entitled to recover her merely because it is not expressly stated that he had assented to this bequest.

Mrs. Watts was in the uninterrupted enjoyment of Sarah from 1819 until the 4th of July 1837, the day on which this action was brought. It does not conclusively appear that the executor never acted, so as to repel the presumption that he assented. The record states that the appellee offered in evidence his letters of administration with the will annexed; but it does not necessarily therefore follow, that they were not letters de bonis non, which, where there is a will, are letters with the will annexed. The probat of the will, which it is a part of the duty of the executor to cause to be made, was on the 11th December 1821, which was shortly after the death. There seems to be some error in the statement as to the time of the death, as the will is dated 1st July 1821, and the testator is stated to have died in 1819; but still the exception states that he died in 1819, having first made this will, so that the only effect of the statement uncorrected, is to make the date erroneous. But whether the executor ever acted or not, the appellee obtained his letters of [**12]  administration on the 13th June 1826; and from that period until the 4th July 1837, a period of eleven years, Mrs. Watts and the defendant claiming under her, were suffered by him to remain in the undisturbed possession of this slave. The presumption therefore is, after such a lapse of time, that all the objects for which the law permits the executor to retain the property, and renders his assent necessary to perfect the title of the legatee, had been accomplished. It cannot be contended, after such a lapse of time, that there remained any debts to be paid; nor can it be presumed that during this long interval the enjoyment of this bequest by Mrs. Watts, and those claiming under her, had been without his assent. His long acquiescence in this enjoyment was, if not conclusive evidence, yet presumptive and conclusive until rebutted by contrary proof (and there was none such) that the enjoyment was by his assent. In support of this proposition the court are referred to 2 Williams on Executors, where it is said--"In certain cases the assent of the executor may be presumed, upon the principle that, in the absence of evidence the executors shall be taken to have acted in conformity with their [**13]  duty, as when executors die after the debts are paid but before legacies are satisfied: so also as it should seem the assent of an executor may be concluded from the legatee's possessing himself of the subject bequeathed, and retaining it for some considerable time without complaint by the executor. (2 Wms. on Ex'rs, 848.) And in Matthews on Presumptive Evidence, 278, where the last proposition is stated in the very terms used in 2nd Williams. The writer adds in support of it, "for as very slight circumstances (for example, a congratulatory address) are in general sufficient to denote an executor's agreement to a legacy, so it is conceived that long acquiescence, which in all cases of this kind is esteemed a significant and important circumstance, may, without the aid of other marks of assent, be regarded as affording the requisite presumption. Where the bequest is of property yielding an annual income, as a leasehold tenement, and the executor allows the profits to be appropriated by the legatee, the argument for the implied assent is manifestly stronger." And in 3 Preston on Abstracts, page 145, where the writer is treating of this subject, he applies to this question of assent the [**14]  established maxim, "that ex diuturnitate temporis omnia presumuntur esse rite et solemniter acta;" and therefore he says, that in such transactions which took place at a remote period, a title depending either on an assignment by an executor, or by a legatee without any express evidence of assent, is accepted without any difficulty.

Now in this case not only had at least 16 years elapsed from the period when Mrs. Watts obtained the possession of the bequest, and 11 years from the time when the appellee became administrator, and not only had Mrs. Watts during this long interval taken to herself all the services and profits of this property, but it appears also from the record, that in 1834 she sold the child Mary to the appellant; that the appellant himself was suffered, without interruption by the appellee, to enjoy this property until 1836, when he sold her; and that this action was not brought until after the appellant had sold Mary, having first held her as his, for about two years before the sale. And it is submitted therefore, that under these circumstances, assuming the bequest to have passed this property, and to require nothing but proof of assent to perfect the appellant's [**15]  title--not only ought the assent to be presumed, but that it would operate as a fraud upon the appellant to permit such an objection to be set up against the appellant by an administrator lying by during all this period, and only coming forward to claim the property after the appellant had parted with it. And to add to all, it will be remarked, by referring to the statement of the proof, that this objection is never set up, if indeed it can be considered as made or involved in the question before the court, until after Mrs. Watts's whole period of use under the will, as to the mother, has gone by.

The circumstances of the case are so strong and conclusive on this view of the question, that it is not necessary to enquire whether such an objection could apply to issue never held or owned by the testator, but born whilst the mother was in the possession of Mrs. Watts, by the acquiescence of the appellee.

And it may be remarked in conclusion on this branch of the subject, that assuming the assent of the administrator, which, once made, can never be recalled, or the existence of facts establishing it by presumption, the plaintiff had no right of action, whether Mrs. Watts was [**16]  or was not entitled to Mary absolutely, as a part of the use. The assent of the executor or administrator, in a case where there is a bequest to one with remainder over, if given to the first legatee only, enures not only to her benefit, but also to the benefit of those in remainder, so as to pass the whole title out of himself. (See 2 Williams on Executors, 847, and the various authorities there cited.) And, therefore, assent to Mrs. Watts's taking possession of Sarah, at once vested the legal title to the remainder in the grand children; and even if it be conceded that Mary the issue, did not belong to Mrs. Watts, but to those in remainder, the right to maintain this action was not in the appellee, but in the grand-children in remainder;--and in this case, the possession being in us, it did give us the property at all events as against the appellee.

Lastly. If it even be conceded that there was no evidence of assent, and nothing to warrant the presumption of it, and that the devise did not pass Mary, then it is submitted that the property was in us by the lapse of time and the operation of the statute of limitations.

The exception expressly states, that long before the [**17]  youngest of Mrs. Anne Watts's children came of age, Mrs. Watts claimed negro girl Mary, and exercised ownership over her, and sold and delivered her to the defendant in this cause on the 10th of November 1834, showing that she always held and claimed her as her own. And if the administrator never assented, then it was a widow's taking and holding under a claim of right, and as to Mary not a limited but an absolute claim. And if it be said that the statement of the exception, "that Sarah the mother, came to the possession of Mrs. Watts "in accordance with the will," imports a taking and claim by her under the will, then the statement extends still further, for it involves the admission that it came to her by the assent of the administrator; and thus ended the objection for want of assent. If it came to her in accordance with the will, it of course came by the assent of the executor or administrator, whose duty it was to carry into effect the provisions of the will. And if it does not import this, it only imports, not that she took it under the will and so claimed it, but that the will accorded with her taking possession of it, which might be, and was, even if she took it, not claiming [**18]  under it. The expression is not that she took possession of it, in accordance with the will; but that it came to her possession in accordance with the will, which, if it proves any thing more than that the will accorded with her then possession of it, proves that it came by the assent or delivery of the executor. And even these expressions apply only as to Sarah; for as to Mary the daughter, the statement shows that her claim ab origine was of the absolute right to Mary.

For all which reasons it is submitted that the judgment of the court below ought to be reversed.

ALEXANDER for the appellee.

1. The counsel for the appellant first insists, that by the true construction of the bequest, the issue born during the continuance of her interest in the mother, belonged to Mrs. Watts absolutely. And the cases referred to by the learned counsel clearly show, that where there is a bequest of a woman slave, or of the use of a woman slave for life, with a remainder over, the legatee for life will take absolutely all the increase born during the continuance of his life estate. But there is no case to be found in which it has been adjudged that a legatee for a term of years would [**19]  be entitled to increase born during the continuance of his term for years. It may be admitted that the case of the legatee for years is within the reason upon which the cases affirming the right of the legatee for life, were decided. But all these cases, in the opinion of the late celebrated Daniel Dulany, were departures from the principles of humanity and law. Mr. Dulany thought that the first adjudication ought to be followed in a like case, for the sake of repose and security of property; and he sustains himself by the opinion of a very eminent chancellor, who declared that "the rules of property being certain and known, it is not of great consequence what they are." But is it hence to be inferred, that an exception to a rule of property being once established, must thereafter be preferred to the rule itself, in the adjudication of kindred cases? Or is it not rather the habit of the court to treat the exception as an anomaly or a precedent which is to be confined strictly to the very point decided? The contest in this present case is, whether the exception or the principle shall prevail.

There is a broad legal distinction between a freehold and a chattel interest in real estate.  [**20]  And a distinction equally well founded in humanity and justice may be taken between the interests of a legatee for life, as settled by the adjudged cases, and the interests of a legatee for years of a female slave. A term for a thousand years is, in contemplation of law, no more than a term for a single day; and the cases referred to by the appellant's counsel show that, in law, there is no difference between the right of a legatee deriving title to the slave under a last will and testament; and a devisee or grantee who claims under a gift or other conveyance intervivos. The increase passes, say the cases, as part of the use. Hence, if the legatee for an hundred years can claim the issue of the slave born during that time, a like claim might be inferred by one who had hired a woman slave for a year, or a month, or a day, to the issue born during this transient term. But is it law? Can it be law, in consistence with humanity, that the hirer of a woman slave for a month, shall hold on to the issue which may fall during that month? Why, then, may not the hirer of a free negro woman, or the master of a female apprentice, be permitted to claim the increase of his servant or apprentice,  [**21]  born during her term of servitude? Is not the increase a part of the use in the one case, as justly and clearly as in the other? Is it not as just in the one case as it is in the other, that the increase should go to the master "as a reasonable satisfaction for the expense of maintenance, and for the time lost by the parent?" Difficulties innumerable, it is conceived, may flow from the extension of the exception to legatees, claiming less than a life estate in the mother.

But assuming, for the sake of the argument, that the cases adjudged in reference to the rights of the legatee for life, must in general, control the question in regard to the rights of a legatee for a term of years; it is yet competent for us to argue that, upon the present will, there is an intent expressed that Mrs. Watts shall not have the issue born during her interest in the mother. By adverting to the will, it will be found that the children take an estate in all the negroes vested in point of interest, though future in regard to enjoyment, and vested and present, even in regard to the perception of the profits. Here is a complete disposition of the negroes, and their increase, and their profits; made in [**22]  terms which evidently import that the distribution is postponed, simply from regard to the circumstances of the legatees. It is under a subsequent, and, as it is contended, an inconsistent devise, that Mrs. Watts's right must be derived. But is there, indeed, any inconsistency in these various dispositions? We think the discrepancy is apparent only, and that an explanation may be given of the whole, which will enable the court to gratify the direction in favor of Mrs. Watts, without lessening the interest or estate which has been previously given to the children. The principal objects of the testator's regard are the children; and Mrs. Anne Watts is respected simply as their mother. Hence it is, that the bequest in her favor is limited, to expire upon the children's attaining a legal capacity to dispose of or manage their property, and it is given in such form as to leave it questionable, at the least, whether it would not be determined by her death, during the infancy of her children.

The mother's interest is, therefore, to be treated as subsidiary to that of the children. The children are to have the profits arising from the hire or use of all the negroes. Mrs. Watts is to have [**23]  the exclusive use of one of those negroes. Here it will be insisted, is a contradiction. But we submit the contradiction will be avoided, and the two claims will be reconciled by giving to the expression use in one of those clauses, the same construction which the same expression must receive in the other. Use in the first clause is evidently put for service or labor. The bequest is thus made to import "the profits arising from the hire, service or labor of the negroes." The direction that Mrs. Watts shall have the use of one of those negroes, is to be construed as a direction that she shall have the benefit of the labor or service of the negro, or that the negro shall be left in her service or employment. A bequest of this limited character could not be made to carry to the legatee the issue born during her right to the services of the mother. The purpose to which the profits of the negroes was to be applied, and the relation subsisting between the legatees, supply an additional argument in favor of our construction. The profits were to be applied to the maintenance and education of the children, who were, it is to be presumed, under the fostering care of the mother; and the girl [**24]  Sarah is left in the service of the mother, in order that she may be at the same time a personal attendant on the children. Thus the children are made to enjoy the profits of all the negroes; the others being directed to be hired out or worked for their support. We may remark, too, that if the issue of Sarah will pass to Mrs. Watts as a part of her use, then the issue of Anney, as part of her use, will be applicable to the maintenance and education of the children, and as each is born would be liable to be sold for that purpose.

The counsel for the appellant has referred to other clauses of the will to show, that the testator specially gave the increase, when he designed that the increase should pass. In one clause he bequeaths to his wife the use of certain negroes, male and female, during her life; after which they and their increase are to be the right and estate of his son Richard. This clause is very correctly drawn; and if it stood alone might afford color to the argument made on the other side. But when it is considered in connexion with the next succeeding clause, wherein he bequeaths to his daughter absolutely a negro woman Lydia and her increase, it will warrant the [**25]  inference that the testator was not remarkable for his sense of the force of technical expressions. There is indeed great reason to believe, that the will was drawn without knowledge of adjudged cases or principles, and that the testator selected language which, in its usual acceptation, seemed to him calculated to express his intentions. Adopting this suggestion, it deserves remark that, just preceding the bequest to the wife for life of the use of several negroes, he had devised to her during her life only, the use of one-third of all his real estate. The expression use is therefore to be found in four parts of this will. In the first, in connexion with a devise of real estate, it imports a right to cultivate the soil. In the second and third, it imports nothing more than a right to the labor and services of slaves. In all these instances the expression is used in its ordinary acceptation. May we not reasonably conclude, then, that in the last clause in which it is found, it is made in a like vulgar sense?

2. The next proposition advanced on the other side is, that the administrator with the will annexed assented to this bequest in favor of Mrs. Watts. It is conceded by the [**26]  appellant's counsel, that such assent is necessary to be shown, in order to perfect the right of the appellant, as the assignee of Mrs. Watts, to the slave in question. He likewise admits, that such assent has not been directly proved; but insists that, from the circumstances in proof, it may and ought to be presumed to have been given. On the part of the appellee it is admitted that assent as a fact may be proved expressly, or inferentially, from pregnant circumstances. It may also be admitted that, from the circumstances proved in this cause, the jury might have presumed the assent of the administrator to the bequest in question; and still further, that on a prayer rightly framed for the purpose, the court ought to have instructed the jury that it was competent for them, from the proofs offered, to make such presumption. But we insist that no such question of presumption is involved in the point or proposition made by the prayer of the appellant to the court below. The very point presented to the court below, and none other, is, the point which is to be considered on this appeal. What then is the point? That from these facts (stated in the bill of exceptions to have been in proof [**27]  to the jury,) if the jury believe them to be true, the plaintiff is not entitled to recover, because negro Mary, the property in dispute, was the property of the defendant. Or, in other words, that the facts offered in evidence, if believed to be true, showed that negro Mary was the property of defendant, and therefore the plaintiff is not entitled to recover. If this prayer had been granted, the court would have left it to the jury to find, whether the facts enumerated in the bill of exceptions were proved to their satisfaction, and if they were, then it would have amounted to a peremptory instruction, that those facts proved the legal right of property to have been in the defendant, and therefore, as a legal consequence, the plaintiff could not recover in the action. By charging the jury with the facts enumerated alone, the court would necessarily have prohibited the jury from finding any other fact which, in the absence of an instruction, they might have presumed from the facts enumerated. The court would have said, these facts enumerated conclusively establish a right of property in the defendant; no inference or presumption is necessary to be drawn therefrom in aid of the defendant's [**28]  right; nor can any inference or presumption be legally made from those facts to the prejudice of that right. Such would have been the effect of an instruction given in the form suggested by the defendant's prayer. And the first objection to the prayer in this form is supplied by the argument of the appellant's counsel, who admits that the assent of the administrator to the bequest in favor of Mrs. Watts was a fact necessary to be proved, and that such assent is not one of the facts enumerated in the bill of exceptions as proved or attempted to be proved.

If the defendant below wished to obtain an opinion upon the legal sufficiency of the evidence, as furnishing a reasonable implication of the fact of assent, then ought his prayer to have been framed upon the hypothesis that the jury should believe the facts enumerated, and from those facts should presume that the requisite assent had been given. Very different, however, is the frame of the prayer which is to be found in the record. The fact of assent is not put to the jury in any shape, as a fact to be found in order to complete the defendant's title. On the contrary, the prayer necessarily assumes that assent, and dissent were [**29]  entirely beside the issue. If it is admitted that the assent of the administrator might have been presumed from the testimony, we may fairly argue, that there was evidence from which a jury might have refused to infer that assent had been given. This is all that is necessary to be made out for the purposes of the argument. If no evidence was offered of assent, then the defendant's case was defective. If there was evidence relevant to that issue, then it was the province of the jury to weigh that evidence, and to draw such inferences from that evidence as they thought it warranted. In the case of McElderry vs. Flanagan, 1 Harr. & Gill, 320, it was decided by this court, that a case in which evidence pertinent to the issue has been given, cannot be withdrawn from the consideration of the jury, unless the party who submits the prayer will admit the truth of the testimony offered by his adversary, and of the testimony given by himself, which may operate in his adversary's favor, and the existence of all material facts deducible therefrom, even though contradicted in every particular by the testimony offered by himself. Such are the conditions to which a party must subscribe who would desire [**30]  to substitute the judgment of the court for a verdict of the jury. Has the defendant below fulfilled these conditions in his prayer to the court below? Instead of giving to the plaintiff the benefit of the presumption, that the property in controversy had fallen into the defendant's possession without the plaintiff's assent, (which is a material fact, legally deducible from all the testimony,) he claims the benefit of the presumption of assent, and of every other fact which may involve the perfection of his title. He admits nothing more than the facts enumerated in the statement as proved. He asks only that the jury shall find the verity of these specific facts; and insists that such finding will establish the validity of his title, although it is now conceded that a fact, material in the chain of his title, is to be made out, if at all, by inference and deduction from circumstantial testimony. If the facts proved really warranted the inference of the administrator's assent to the legacy, there is nothing in the refusal of the court to grant the instruction prayed for, which would have prejudiced his argument to the jury in support of such inference. Nor are we at liberty to presume,  [**31]  from the rejection of the prayer which was submitted, that the court would have refused to instruct the jury, that the evidence in the cause was legally sufficient as a foundation for such inference of assent. It is therefore submitted, that the prayer was essentially defective in form and substance, that it could not have been granted without an invasion of the province of the jury, and that its rejection was not productive of any legal prejudice to the defendant's case.

The defect in the argument filed by the appellant's counsel consists in his erroneously assuming that the case is now open upon the facts, unprejudiced by the specific prayer upon those facts, which was made in the court below, and from the rejection of which prayer this appeal is taken. Hence he argues, that the assent of the administrator to the bequest in favor of Mrs. Watts ought to be presumed, because there is evidence from which the jury might have presumed such assent to have been given; that the plaintiff had no right to recover, because the assent of the administrator to the bequest being assumed, the remainder would vest in the children; and that the plaintiff's remedy is barred, because there is evidence [**32]  from which a jury might have presumed the defendant and Mrs. Watts had held the negro adversely for more than three years prior to the commencement of this suit. It is assumed that the prayer is a general prayer, and that any argument may be used which tends to show that the plaintiff, upon the facts, was not entitled to recover. But if this view was correct, the whole argument would be avoided, because this court cannot entertain an appeal from the refusal of the court below to grant a general prayer. The defendant is therefore obliged to concede that it is a specific prayer, and that the point arising on this specific prayer, is somewhat narrower than the point which might have been raised on a general prayer, prior to the act of 1825, ch. 117. We refer to the case of Grahame vs. Harris, 5 Gill and John. 491, to show that the point, and the only point presented by this prayer, is, that if the facts in evidence are believed to be true, the negro in question was the property of the defendant. This is the very point in controversy, and no argument is admissible which does not tend to prove the defendant's right of property. We are thus supplied with brief answers to all these arguments.  [**33]  To the first, without enlarging the arguments already used, we say, that the question of presumptive assent is not made by the prayer. To the second we answer, that the point made is, that the property was in defendant, not that it was in a stranger; and the argument now submitted in favor of the right of the children, if it is worth any thing at all, most conclusively proves that the court below did right in refusing to instruct the jury that the right of property in the negro was in the defendant. To the last we answer, that length of possession cannot be set up, under the general issue, as evidence of title in the defendant as against the rightful owner. Trover is within the letter of the act of 1715, ch. 23, and the act must be specially pleaded if the defendant intends to rely upon his possession as a bar to the plaintiff's remedy. So thought the pleaders in this case.

Believing that the form of the prayer is an answer to all the arguments which have been derived from the special circumstances of the case, I shall not fatigue the court by a review of those circumstances. It will be sufficient to say, that the court's rejection of the prayer, which is to be found in the record,  [**34]  could not have prejudiced the defendant's case in the minds of the jury, and for aught that appears to the contrary, all the topics which are to be found in the argument of his counsel, may have been urged upon the consideration of the jury. The verdict shows the argument was unsuccessful; and we cannot impeach that verdict as an incorrect conclusion of fact from the testimony in the cause. If the weight of the testimony spread upon the record should appear to us to have been on the side of the defendant, we should remember that the record does not necessarily disclose all the evidence which was addued at the trial. It is the usual practice, upon an exception taken to the court's opinion, expressed in a special prayer, to state so much only of the testimony as may appear material to that question. At a subsequent stage of the cause, other evidence may be introduced to change the aspect of the case, and remove the objections which are apparent upon the facts stated in the preceding bill of exceptions, although not waived by the prayer. Having no other knowledge of the facts in this case than is supplied by the record, I cannot say what was the condition of the case when it was sent [**35]  to the jury. But I cannot persuade myself that this court, upon a state of facts which their knowledge of the course of practice assures them may be partial, will impute to a party a fraudulent intent or a design to enforce an unjust demand in opposition to a verdict in his favor founded upon all the evidence in the cause.

For all these reasons it is respectfully submitted that the judgment ought to be affirmed.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*477]  ARCHER, J., delivered the opinion of this court.
The question which we presume was intended to be raised by the prayer in this case, which was refused by the court, was, whether the bequest in the will of Henry Watts, of the exclusive use of negro Sarah to Ann Watts until the youngest of his grand-children named in the will arrived at age, gave the right to Mrs. Watts of the issue of Sarah, born during the existence of her usufructuary interest, and before the youngest of his grand-children arrived at age. If this had been the bequest of the use during the life of the legatee Mrs. Watts, it would not admit of discussion. Various [**36]  decisions of the courts of this State have settled the question that, the bequest for life of the use of a female slave, vests in such legatee a property in the issue born during the existence of the life estate, upon the principle that, the issue is to be considered not as an 

 [*478]  accessary, but as a part of the use, to go to the person to whom the use is limited. 6 H. & J. 16, 18.
In the first decision which was made upon this subject in our courts, the right to the issue was placed upon the ground that the legatee, who was entitled to the profits from the use, was subjected to loss, by the pregnancy of the subject of the bequest, and from the maintenance and support of the issue, which he was bound to take care of, and that when the use is given, a bounty at all events is intended; but instead of a benefit, if the issue should go over, there might be a loss.
It has been conceded, indeed it could not be disputed, that in the case of a bequest of a female slave for a term of years, the same principle would give the property of the issue born during the term to the legatee, but it is supposed that the rule, when established by our courts, was a departure from [**37]  the law, and that it should be treated as an exception, and that as subsequent cases occur, they should be decided by what is supposed to be the law infringed by the exception, and not by the exception, unless clearly within it. The error of this argument, we suppose, is to be found in the assertion, that this constitutes an exception. On the contrary, we suppose it to be the establishment of a principle, which is to govern like cases when they are presented.
The evils anticipated to flow from this doctrine, if realized, it must be admitted, would be attended with mischief and inconvenience. It is supposed that it would follow as a consequence, that he who hired a female slave for a year, a month, or a day, would be entitled to the issue born during the period of service; nay, that the hirer of a free woman, or the master of a female apprentice, would be entitled to the issue born during the service. But these consequences we think could not flow from the decision; for the instances put must be governed by the universal usage and understanding of the country, which forbid the idea, that any property in the issue could be acquired under such circumstances; besides, the contract of [**38]  hiring, carries but the labor and service, and passes no property in the slave hired.

 [*479]  There is nothing we think in the will of Henry Watts which militates against the right of Mrs. Watts to the issue born during the existence of her estate. As applicable to the disposition of personal property in this will, the word "use" occurs three times, and it is true that, in the two first instances in which it is used, it carries but the right to the service and labor of the slaves. But where it first occurs, it is to be remarked, that the testator seems to have been aware that, by the use of the term, the right to the issue would be carried to the legatee for life; and, therefore, he bequeaths over the increase. And where it in the second place occurs, it is connected with the word hire--"hire or use;"--the term use being there qualified by its connexion with the word "hire;" as if the testator had been apprised, that without the word "hire," and by the word "use," standing alone, the issue of the slaves bequeathed to the grand-children might have been sold as profits, from the use, for the maintenance and education of his grand-children, which clearly [**39]  was not his design; the hire or use being only appropriated to these objects. But when the testator uses the word "use" in the third instance, which is in the bequest now under consideration, the word "hire" is not connected with "use" as immediately preceding in the same clause, nor is the increase given over, as in the first instance; but this strong language is used.--"It is however my desire that their mother, Ann Watts, shall have the exclusive use of negro Sarah until the youngest of my said grand-children shall arrive at age." The will, therefore, instead of indicating an intention against the pretensions of Mrs. Watts, is strongly in favor of them.
The prayer of the defendant was, that the plaintiff, if the jury believed the facts, was not entitled to recover, because negro Mary, the property in dispute, was the property of the defendant. This direction the court refused to give. Could the court have rightfully granted this prayer, if they had believed with the defendant, that negro Mary passed under the will to Mrs. Watts? We think they could not. They would, by so doing, have taken from the jury the consideration of the question, 

 [*480]   [**40]  whether the legacy to Mrs. Watts had ever been assented to by the representative of H. Watts.--A fact indispensably necessary to have perfected the defendant's title. This is conceded so far as the mother of the child in controversy is concerned, and must be equally true as to the issue; for, as property could not be acquired in the female slave, it would seem to follow of consequence that she could be entitled to none of the fruits of that property without such assent. But it is supposed, that the presumption from the facts and circumstances was so strong, that they ought to be considered as conclusive. But this would convert what would appear from the evidence to be a presumption of fact, into a legal presumption, which we think we should not be at liberty to do. The jury might find, as an inference from the facts, that the assent was given, but they were not bound to do so. We therefore think that the court committed no error in refusing the prayer offered by the defendant, and affirm their judgment.
JUDGMENT AFFIRMED.  

44 of 47 DOCUMENTS 

HENRY MATTHEWS vs. SARAH WARD AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 443; 1839 Md. LEXIS 18 

December, 1839, Decided 

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

This was an action of Ejectment, commenced on the 12th August 1837, by Sarah Ward, Smith Boston and others, lessors of the plaintiff, against Henry Matthews, the tenant in possession, for a lot in the city of Annapolis. The defendant appeared and pleaded not guilty, and the parties agreed upon the following statement of facts:

It is admitted in this case, that at and prior to the 20th of October 1817, Leonard Scott and Sarah Scott his wife, were seized in fee simple of the lot and premises in the declaration in this action mentioned, and being so seized, that they executed, acknowledged and delivered the following deed, which was recorded in due time among the land records of Anne Arundel county.

This Indenture, made this twentieth day of October, in the year of our Lord one thousand eight hundred and seventeen, between Leonard Scott and Sarah Scott his wife, of the city of Annapolis, in Anne Arundel county and State of Maryland, of the one part, and Henry Price of the city, county, and State aforesaid, of the other part, witnesseth, that the said Leonard Scott and Sarah Scott his wife, for and in consideration of the sum of five [**2]  dollars to them in hand paid, the receipt whereof they do hereby acknowledge, have, and each of them hath given, granted, bargained and sold, and by these presents do, and each of them doth, give, grant, bargain and sell, unto the said Henry Price, his heirs and assigns, a part of a house and lot, piece or parcel of ground, situate, lying and being in the city of Annapolis, which was formerly occupied by captain James West as a tavern, and described as follows: Beginning at a brick partition wall on church street, about midway the house, then, &c.; to have and to hold the said lot, piece or parcel of ground and premises above described, and the goods and chattels before mentioned, unto the said Henry Price, his heirs and assigns forever; in trust to and for the uses, intents and purposes, that is to say, in trust for the use of the said Leonard Scott and Sarah Scott his wife, for and during their joint natural lives, and the life of the survivor of them, and after the death of the said Leonard Scott and Sarah Scott his wife, to have and to hold the said lot, piece or parcel of ground and premises above described, and the goods and chattels before mentioned, in trust for the use of [**3]  John Henry Scott and his heirs forever; and in case the said John Henry Scott should die without lawful issue, then to have and to hold the said lot, piece or parcel of ground and premises above described, and the goods and chattels before mentioned, in trust for the use of the heirs of Lucy Ward, wife of James Ward, which said Lucy Ward is the daughter of the said Leonard Scott. In witness whereof, the said Leonard Scott and Sarah Scott his wife have hereunto subscribed their names and affixed their seals the day and year, &c.

It is further admitted that, the grantors in said deed, and the said John Henry Scott, therein mentioned, are all dead, the latter having died in the year 1825, intestate, unmarried and without heirs, and in the life time of Lucy Ward, mentioned in the aforesaid deed, and that the lessors of the plaintiff, to wit, Sarah Ward, Elizabeth the wife of Smith Boston, Sophia the wife of Stephen Queen, and Martha Ward, are the children and heirs of Lucy Ward, the daughter of Leonard Scott, mentioned in said deed, who survived said John Henry Scott and has lately died.

It is further admitted, that subsequently to the death of the grantors in said deed, and [**4]  of the aforesaid John Henry Scott, and of Lucy Ward, but prior to the commencement of the present action Henry Price, the grantee in said deed, executed the following deed to the female lessors of the plaintiff.

This Indenture, made this seventh day of August, in the year of our Lord one thousand eight hundred and thirty-seven, between Henry Price and Ann Price his wife, of the city of Annapolis, in the State of Maryland, of the one part, and Sarah Ward, Elizabeth Boston, Sophia Queen and Martha Ward of the city of Baltimore and State aforesaid of the other part--Whereas, by an indenture bearing date on the twentieth day of October, in the year one thousand eight hundred and seventeen, a certain Leonard Scott and Sarah his wife, then of the city of Annapolis, conveyed to the aforesaid Henry Price upon certain trusts therein mentioned and declared, a part of a house and lot, piece or parcel of ground, situate, lying and being in the aforesaid city of Annapolis, which was formerly occupied by captain James West as a tavern, and described as follows, &c.; and whereas, in consequence of the death of some of the cestui que trusts in said deed mentioned, doubts are entertained whether [**5]  the entire interest in said property, legal and equitable, hath not devolved on the said Henry Price, notwithstanding the survivorship of the grantees in this deed, who are the heirs of Lucy Ward, wife of James Ward, spoken of in the aforesaid deed from Leonard Scott and Sarah his wife, to Henry Price; and whereas the said Henry Price in consequence of those doubts is willing to execute these presents, in order that the true purposes of the deed to him may be accomplished--Now this Indenture witnesseth, that for and in consideration of the before recited premises, and of the sum of five dollars current money, by the said Sarah Ward, Elizabeth Boston, Sophia Queen and Martha Ward, to the said Henry Price and Ann Price his wife in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, they the said Henry Price and Ann Price his wife, have bargained and sold, aliened and enfeoffed, and by these presents do give, grant, bargain and sell, alien, enfeoff, release, convey and confirm, unto the said Sarah Ward, Elizabeth Boston, Sophia Queen and Martha Ward, their heirs and assigns, as tenants in common, all the before mentioned and [**6]  described piece, parcel, or lot of ground, &c., and all the estate, right, title, and interest whatsoever, at law and equity, of them the said Henry Price and Ann Price his wife, to have and to hold the said herein described premises, with the appurtenances thereunto belonging, unto the said Sarah Ward, Elizabeth Boston, Sophia Queen and Martha Ward, their heirs and assigns forever. In testimony whereof, the said Henry Price and Ann Price his wife have hereunto set their hands and seals, the day and year first above written.

It is further admitted, that on or about the 30th of September, in the year 1836, after the death of John Henry Scott, and of the grantors in the aforesaid deed, Henry Matthews, the defendant in this action, took out an escheat warrant from the proper office, had the same executed upon the said lot and premises, paid the composition money into the treasury within the time required by law, and obtained a patent therefor; that prior to the issuing of said patent Henry Price caveated the same before the execution of his said deed to the lessors of the plaintiff, which caveat was overruled after argument.

That the defendant has been in possession of the premises [**7]  in question ever since the date of his patent on the     day of     18  , and that he had been in possession thereof for several years previous to the said date, having entered into possession in the life time of Leonard Scott, and as his tenant; but has never recognized the rights of the said Henry Price or of the lessors of the plaintiff.

Upon this statement the question arises, whether the lessors of the plaintiff are entitled to the premises in question. If they are, then judgment is to be entered for the plaintiff, otherwise judgment is to be rendered for defendant, and either party may appeal to the Court of Appeals, and execution of any judgment rendered, is to be stayed until the determination of such appeal.

Upon this statement the county court rendered judgment in favor of the lessors of the plaintiff, the grantees under the deed of the 7th August, 1837, and thereupon the defendant below, Matthews, prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The ancient law requiring livery of seizin to give efficacy to deeds of feoffment, is abolished in this State, and enrollment now is equivalent to livery.

By the usage and practice of this State, bargains and sales, as a mode of passing estates, have nearly superseded all other modes of conveyance.

In a deed of bargain and sale, the use is executed in the bargainee by the statute, and the limitations to use, are merely trusts in chancery, the cestui que trusts being seized only of an equitable estate.

The Lord Proprietary of Maryland, by the terms of the charter, held his lands in free and common soccage, and his grantees, anterior to the revolution, held by the same tenure, feudal services, with their incidents being attached to his grants.

These services and incidents were in effect abolished by the revolution, and escheats, though they continued, changed their character; the land, instead of going to the lord of the fee, reverting to the State as property without an owner.

After the revolution, lands in this State became allodial, subject to no tenure, nor to any services incident thereto, and under our acts of assembly, the State succeeded to the property, whether the owner dying without heirs, had a legal or equitable estate.

The term seized, in our law, does not always refer to a legal seizin, but will have a more extended signification, when necessary to effectuate the design of the legislature.

Lands held in trust in this State are liable to escheat when the cestui que trust dies without heirs.

An action of ejectment may be maintained by a trustee against his cestui que trust, unless, as under certain circumstances may be done, a conveyance of the legal title is presumed.

The right of entry in the lessor of the plaintiff will support an ejectment, although the lessor has never made an actual entry, which is superseded by the common consent rule, at least such is the effect of the rule, where the parties stand in the relation of landlord and tenant.

Although equitable titles will escheat where the owner dies without heirs, still, in an ejectment by the trustee or his grantee against the party claiming under the escheat, the legal title will prevail, the remedy of the defendant being in equity.  

COUNSEL:
By T. S. ALEXANDER and R. JOHNSON for the appellants, and

By J. JOHNSON and A. C. MAGRUDER for the appellees.  

JUDGES:
The cause was argued before BUCHANAN, C. J., ARCHER, and CHAMBERS, J.  

OPINIONBY:
ARCHER 

OPINION:

 [**8]  
 [*448]  ARCHER, J., delivered the opinion of this court.
It is contended by the appellant, that the deed from Scott and wife to Price is a deed of feoffment; and as such, the legal title of the property vested by the statute of uses in John Henry Scott in fee; that the remainder over as being too remote was void, and that upon the death of John Henry Scott without heirs, the property of course became liable to escheat.
If by the words of the deed and the intention of the parties we could construe this as a deed of feoffment, there would arise no objection to such a result, from an absence of evidence of livery of seizin. The ancient law on the subject of feoffments, which demanded livery of seizin to give them efficacy, we consider as having been abolished, and that now, enrollment takes the place of livery, and is equivalent to it. The act of 1766 provided for the enrollment of deeds of feoffment, as well as other deeds, and the act of 1715 declared that livery should not be necessary where the deed was enrolled. Anterior to the law of 1766, ch. 14, although the legislature had rendered livery of seizin unnecessary, where the deed was enrolled, omitted  [**9]   making any provision for the enrollment of deeds of feoffment until 1766; hence it was decided by the General Court, in 1 H. & J. 527, that a deed executed in 1726 could not operate as a deed of feoffment without proof of livery of seizin, or such length of possession as would give rise to a presumption of livery of seizin. Vide Carroll vs. Norwood, 1 H. & J. 167.
Although since the act of 1766, ch. 14, which provided for the enrollment of deeds of feoffment and other conveyances, 

 [*449]  livery of seizin is not necessary to a deed of feoffment, yet whether this be a deed of feoffment or a deed of bargain and sale, is a question of construction, depending on the words of the instrument. There is no doubt but that it would be capable of transferring the estate, either, as a feoffment, or a deed of bargain and sale--the operative words of each species of conveyance being used. But the question is not whether, if it cannot operate in one way, it shall in another; but whether the conveyance is in point of law a feoffment, or a bargain and sale.
By the usage and practice of the State, bargains and sales, as a mode of passing estates, have nearly [**10]  superseded all other modes of conveyance, and we do not believe it was at all designed, in the execution of the deed under consideration, to deviate from this accustomed mode. Nothing could more unequivocally impress a distinctive character on the instrument, than the words which have been used: the terms "bargained and sold" follow the words "given and granted," and qualify the mode of the gift and grant, and show that it was by a bargain and sale; and it is said that the insertion of the words "bargain and sale," in conveyances by lease and release, were inserted among the operative words of this conveyance, that the lease might be treated as a bargain and sale, and not a lease at the common law. Cornish on Uses, 74. Other considerations might be adduced from the limitations of the deed, conducing to the same conclusion, that this is a deed of bargain and sale; but it is perhaps unnecessary to advert to them, as the above view strikes us as satisfactory.
If this be a deed of bargain and sale, as we think it is, then the use was executed in the bargainee, and the limitations to use are merely trusts in chancery, and the cestui que trusts are seized only of an equitable [**11]  estate, and the question has been discussed whether such an estate is liable in this State to escheat.
The case of Burgess and Wheat, 1 Eden 177, and reported likewise in 1 Wil. Blac. 123, may be considered as having settled the English rule on this subject, though much dissatisfaction 

 [*450]  has at various times been expressed at the decision. That the death of cestui que trust, without heirs, did not operate as a forfeiture to the lord, was founded on the feudal idea of tenure, the trustee being in esse, and being in the legal seizin of the land, was the tenant possessing capacities to perform the feudal services; as against him the king possessed no equity. Judge Tucker, in 3 Leigh 492, 518, in speaking of Burgess and Wheat, says, there can be nothing more unreasonable than this decision of Burgess and Wheat, if we consider it in any other light than as a mere question of tenure; that the trustee should be permitted upon the death of the beneficial owner without heirs, to hold the estate to his own use, is utterly at variance not only with the principles of equity, which consider him a mere machine, an instrument, a conduit,  [**12]  which declare that trust and legal estates shall be governed by the same rules, and that the trust shall descend and pass as the legal estate would descend and pass; but it seems to me at variance with the natural justice of the case. It is right and proper that, when the owner of property dies without giving it away, and without leaving any objects having natural claim to his bounty, such as heirs or next of kin, his property should go to the community of which he is a member. The ground upon which the English rule on this subject can alone be maintained, and upon which it was established, is on the principle of tenure, and it becomes therefore important to enquire, whether the doctrine of that case would be supported in this State upon the same ground.
The Lord Proprietary, by the express terms of the charter, held his lands in free and common soccage, and his grantees, or tenants, anterior to the revolution, held by the same tenure. Services of a feudal character, or of the nature of feudal services, were attached to his grants, and the incidents of fealty, rent, escheat and fines for alienation or some of them, were the necessary incidents thereto. At the revolution, [**13]  when the people of the State assumed the powers of government, and the right theretofore existing in the proprietary, these services and incidents were in effect abolished; thus the oath of allegiance 

 [*451]  to the State superseded the incident of fealty; quit rents were abolished, and grants were made without being subject to fine on the alienation of the grantee; and escheats, though they existed, had essentially changed their nature, no longer being technically founded on the same principles. Instead of going to the lord of the fee, who took the land in lieu of the services, because by the death of the tenant without his heirs there was no one to perform the feudal services; they reverted to the State as property without an owner, upon a principle of justice, that the whole community should hold the derelict property for the benefit of all. After the revolution, therefore, lands became allodial, subject to no tenure, nor to any of the services incident thereto, and if allodial, the supreme power of the State would succeed to them as the king would succeed to allodial property in England, by the common law, upon the death of the owner without next of kin. It is said by  [**14]  Lord Mansfield, in 1 Wil. Black. 163-4, "In personal estates which are allodial by law, the king is last heir where no kin, and the king is as well entitled to that as to any other personal estate." And accordingly, where one dies intestate, without wife or kindred, Sir William Blackstone, 2 Black. Com. 505, says, that the usual course now is for some one to procure letters patent from the crown, or other authority from the king, and then the ordinary of course grants administration to such appointee of the crown. Thus the king as parens patriae is entitled to the property thus situated, and takes it as a general trustee of the kingdom. In analogy, therefore, to the admitted condition of allodial property, and in conformity to the reason and justice of the thing, when the owner of real estate dies without heir, the State is ultimus haeres, and takes the property for the benefit of all.
This being the undoubted right of the State, we approach the examination of the acts of assembly passed in relation to this subject. The acts of 1780, ch. 51, and 1781, ch. 20, authorized escheat warrants to be granted, when any person died seized of the lands, without specified [**15]  heirs, and the act of 1794, ch. 60, authorised a sale of the lands of any person 

 [*452]  seized or possessed, or having an equitable title thereto, where such person should die without known heirs indebted, on the application of a creditor, and directs the proceeds of sale, after payment of debts, to be paid into the treasury for the use of the State, and directs the mode by which the purchaser of such equitable estate may acquire a conveyance of the legal title. So far as regards the sale of the estate of the equitable owner, over and beyond what was necessary to pay debts, this act undoubtedly operated as an appropriation of such lands, or the proceeds thereof, to the public use, where there existed no heir, and could only have been passed upon the assumption, that the right to such land existed in the State. It is both prospective and retrospective, and could never have been passed, if the trustee had been supposed to possess any thing else than a perfectly barren title. The rights of such trustee, who is a mere instrument, are treated with no respect, and the State deals with the property as her own. The law gives the trustee no power to retain the estate by paying the [**16]  debts, however small they may be. Does not order a part (however small that might be, which might be necessary to pay the debts,) but the whole to be sold, and the surplus to be paid into the treasury for the use of the State, and strips him of every vestige of right, by directing a conveyance to be made by him to the purchaser. A stronger case could not be presented from which to deduce the views of the legislature; and these views it will be perceived, accord with our opinions of her rights. The acts of 1780 and 1781, above adverted to, declare lands to be escheated, and escheat warrants to be granted, where any person dies seized of lands. Now if an escheat warrant was an inappropriate mode of procuring the title of the State to trusts which had thus fallen in, it would furnish no argument against the equitable ownership of the State, who, in virtue of the death of the cestui que trust without heirs, stands in his place and stead, and is clothed with all the rights which he had, and which rights it would be competent for the State to transmit in such mode and form as she might prescribe. Whether, however, a transfer by escheat is the appropriate mode of conveying 

 [*453]   [**17]  the interest of the State in such lands, will depend upon the construction which is to be placed upon the act of 1780, ch. 51. That act declares, that any person dying seized, &c., without heirs, his estate shall be escheated, and warrants may be issued. By the true construction of these acts, is such a warrant only to issue on a legal seizin, or are we to give such a construction to the acts, as shall be commensurate with her rights? We have seen that she was entitled to the property just as much as if there had been a legal ownership, as she succeeded in all respects to the right of the beneficial owner, who being clothed with a trust, was seized in the eye of a court of equity of the lands; so seized that legal estates might have been carved out of it. For of a trust estate, there shall be tenancy by the curtesy, and now by the laws of this State dower.
It will be perceived that the act of 1780 and the act of 1781 were passed under circumstances of peculiar emergency, particularly the first law--the design being to raise funds for the immediate relief of such of the troops who were prisoners, clothing for the recruits, and a sum to defray the immediate and necessary expenses of [**18]  the government; and it is entitled, an act to procure a loan for the sale of escheat lands and confiscated British property therein mentioned. A liberal construction ought therefore to be given, at all events, to such parts of the act as deal with the State's own property, that thereby the design of the legislature should the better be accomplished. If it be admitted, that the terms used would naturally import a legal seizin, still there is no reason to confine them to a legal seizin, when the design and object is looked to. On the contrary, these considerations would induce us to give them a more enlarged signification, and extend them to an equitable seizin. The State was designing the more effectually to secure a loan, by subjecting her lands to sale, and we can divine no reason why equitable seizins should have been exempt from sale, more than legal seizins, to accomplish the great objects she had in view; and the more especially, as fourteen years afterwards, she in specified cases ordered the 

 [*454]  sale of such lands in part for the public benefit; and besides this authorization to sell, escheat lands are placed in the same category with confiscated lands, the sale of which [**19]  passed both the legal and equitable titles, and operated on each. The word seized has in many cases been extended to equitable interests. Thus in the act of 17 Geo. III. requiring the registration of annuities, a clause thereof excepted annuities, secured upon lands of greater or equal value, whereof the grantor was seized in fee simple, or fee tail in possession, at the time of the grant, and the question arose, whether the exception applied to an equitable, as well as a legal seizin, and lord Thurlow decided, that an estate in equity in fee simple, or fee tail, was in that respect the same as if it were a legal estate; and he further remarked that, in many acts of Parliament, an equitable estate is considered the same as if it were a legal estate. The words, seized in law or in equity, in the qualification act show that, the word seized is applicable to both, and in the act of 1794, ch. 60, sec. 5, the word seized is applied to an equitable estate--and in the act of 1786, ch. 45, entitled an act to direct descents, prescribing a rule for the descent of lands, the terms seized of lands, tenements and hereditaments in fee simple or fee tail, have reference both to a legal and [**20]  equitable seizin of lands. We might refer to other acts of assembly illustrative of this view, and to show that the term seizin, when used in our law, does not always refer to a legal seizin, but will have a more extended signification when it shall be necessary to effectuate the design of the legislature.
If these views be correct, and we think they are, the land held in trust in this case was liable to escheat. Matthews having taken out an escheat warrant and procured a patent thereon, the next inquiry is, whether it gave him the legal title, and it is insisted that it did, in virtue of the statute of 1 Rich. 3, ch. 1. This statute was confined by its terms to uses. It may therefore be doubted whether it applies to modern trusts, and it is questionable whether it is in force in this State. Cases coming as it would appear within the terms of the statute, if it applies at all to trusts, have been excluded. Thus it has 

 [*455]  been held, that this statute does not apply to the trusts of a term. 7 Term. R. 47. So it has been held, that a feoffment by the cestui que trust of a term, without the consent of the legal termor, does not destroy the term.  [**21]  Doe Ex. Dem. of Maddock vs. Lynes, 3 Barn. & Creswell 388. The universal practice, never to rely on the conveyance of the cestui que trust for passing the legal estate, but to require the conveyance of the trustee for that purpose, which practice is admitted to exist, in Cornish on Uses, 33, is very strong to show that the statute of Richard 3 does not apply to trusts; for if it did apply to trusts, then the cestui que trusts could convey the legal title, and the concurrence of the trustee would be wholly unnecessary.
It is urged, that if the patent does not convey the legal title, but only such estate as the State acquired, as succeeding to the rights of John H. Scott, that still the trustee Price could not recover by ejectment against the cestui que trust, and by consequence could not recover against the State or its assignee, standing in the place of the cestui que trust: and in support of this position 1 Henry Black. 461. 3 Bur. 1901. Cowp. 473, 597. 4 Burr 2208, have been cited.
In the former case it was decided, that a bona fide lease, made by an equitable tenant in tail, will prevent the trustee [**22]  in whom the legal estate is vested, from recovering in ejectment against the lessee. Adams on Ejectment, 86, observes, with regard to this case, that from the more recent decisions, the principle seems to have been much shaken, and it is now very doubtful whether, in any case, a lease from the cestui que trust can be set up against the trustee without the aid of a court of equity. 10 Ves. 554. In 3 Bur. 1901, Lord Mansfield said, the formal title of trustee could not be set up against the title of cestui que trust, but these decisions have been receded from, and it has been repeatedly decided, that the legal estate shall prevail against the equitable title. 2 Term. R. 684. 7 Term. R. 43, 47. 8 Term. R. 2, 122. 5 East. 138. To prevent the inconvenience growing out of this rule, the jury will in particular cases be allowed to presume that, a regular surrender has been 

 [*456]  made by the trustees of the estate to the cestui que trust, as if the purposes of the trust has been satisfied, or the occupation of the estate has been such as to induce the belief of a conveyance, or where the trust is [**23]  a plain one, and a court of equity would compel the trustee to make a conveyance. But in none of these cases can the presumption be made by the court, where the merits of the case would have warranted such a presumption at the trial, if it appear upon a special verdict or case stated, that the trust estate, though satisfied, is still outstanding in the trustees. 7 Term. R. 43. Adams on Ejectment, 87.
In 8 Term. R. 118, 123, it was decided, that a trustee might maintain an ejectment against his cestui que trust. The same doctrine prevails in New York. If the plaintiff have the legal title, the defendant cannot set up an equitable title, and Thompson, in delivering the opinion of the court, in 2 Johns. 226, says, the only way in which an equitable title can be assisted at law is, by allowing the presumption in certain cases to prevail, that there has been a conveyance of the legal estate. It has been argued, that Matthews was a tenant at will to the trustee, and that the action was not a sufficient determination of the will. If the action be not a sufficient determination of the will, we think the deed from Price to the [**24]  plaintiff, dated and recorded before the date of the lease in the declaration, operates such a determination of the will, and vested the right of possession in point of law in the plaintiff. Having then the legal title, and the right of possession, the plaintiff might have enforced his right by a peaceable entry upon the premises. But an actual entry in such case is not necessary. The right of entry in the lessor of the plaintiff will support an ejectment, although the lessor has never made an actual entry, the common consent rule supersedes the necessity of an actual entry. Vide Adams on Ejectment; Comyn on Landlord and Tenant, 489. Upon the argument, this case is assumed to be a tenancy; we mean not to decide the question, how far the common consent rule would dispense with the necessity of actual entry in other cases.

 [*457]  But it is said, that the plaintiffs, who have received the conveyance from Price, cannot maintain this action; first, because the deed to them was a breach of trust. Admitting it to be so, it is perfectly clear that, setting in a court of law, we cannot treat the deed as a nullity on this account. Breaches of trust come within the jurisdiction [**25]  peculiarly of a court of equity. It is said the court should not execute the use as regards this deed, but treat it as a nullity; and it is emphatically asked, if a court of law would consider itself bound to execute the use however nefarious. There are no circumstances connected with the deed which would induce us to treat it as fraudulent or void; on the contrary, the intention as disclosed did not partake of a covenous character. The title to the property was involved in doubt, and the grantee not desiring, if he had acquired any right, to hold it against the intention of the grantors, he conveyed it, that his title, whatever it might be, should pass to the children of Lucy Ward--the objects, undoubtedly, of the benevolent intentions of his grantor. We perceive nothing in the character of the deed, which would render it obnoxious to the objection which in this respect has been taken to it.
It is further urged that, the deed to the lessors of the plaintiff is void, because executed while Matthews was in the adverse possession of the property. But we do not think he was in the adverse possession. The possession of the cestui que trust is the possession of the trustee.  [**26]  He came in as tenant of the cestui que trust, for life, and afterwards held it without any adverse acts on his part, unless the failure to recognize the rights of the trustee amount to an adverse possession. To give the character of adverse to a holding, there must be some positive act, and not merely a failure to recognize the rights of trustee. Previous to his application for an escheat warrant, it cannot be pretended that any thing adverse was done by him. His holding, therefore, must be referred to his original occupancy, and must take its character from that. This brings us to the inquiry, whether his claim under his escheat warrant and patent granted thereon, constituted him an adverse possessor 

 [*458]  of the property, and we think they did not. It was only a legal title which existed in Price, and the State succeeding to the rights of the cestui que trusts, Price was in fact a trustee for the State, and Matthews, coming in under the title of the State, must have the same relation to Price which the State had. The possession therefore of Matthews, was the possession of the trustee. But if there was any doubt about this, we could not adjudge the deed [**27]  to be void. With what intention Matthews held the land, and whether the possession was adverse, was a question of fact, which a jury, and not the court, would have to determine. 2 H. & McH. 57, 76. Adams on Ejectment, 505, Appendix, and the authorities there referred to.
We are therefore of opinion that the plaintiff is entitled to recover at law, and that the remedy of the defendant is in equity.
JUDGMENT AFFIRMED.  

45 of 47 DOCUMENTS 

THE PRESIDENT, DIRECTORS AND COMPANY OF THE DELAWARE AND MARYLAND RAIL ROAD COMPANY vs. JOHN STUMP.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 G. & J. 479; 1837 Md. LEXIS 8 

June, 1837, Decided 

PRIOR HISTORY:
 [**1]   Appeal from Chancery, from an order granting an injunction, and an order refusing to dissolve it on motion, under the act of 1835, ch. 340.

On the 13th September, 1836, John Stump, of Cecil county, by his bill complained, that his father was seized and possessed in fee, under a patent of the state, of a valuable tract of land at the mouth of the Susquehanna river, and established upwards of twenty years, certain fisheries thereon, and at which large quantities of shad and herring were annually taken by seines hauled over certain portions of said river; that complainant is the devisee of said tract, and in possession of all its rights and privileges, and has used and enjoyed the same, that on the 2d March, 1811, John Stump, the father, leased to one Martha Coffield, for the term of ninety-nine years, with covenants for renewal, eight acres of said estate, binding on the public road leading from the said river to Charlestown, and along the said river, according to a plat exhibited with the bill; that immediately below this leasehold, one of the fisheries of the complainant is situate, the haul of the seine from which, extends along and above the shore of the said lot, and over [**2]  to the bar, making into said river from Watson's Island; that owing to the rapidity and strength of the current of said river, a seine cannot be laid out and hauled from said fishery, in any other direction, than the one indicated on the plat by dotted lines, and that complainant and those under whom he claims, have so used, possessed, and enjoyed the said haul without interruption, and been always accustomed so to lay out their seines for upwards of twenty years, that the said rail road company have recently professed to have purchased the said leasehold estate of Coffield, and have located the line of their road over the same, and have laid out, and are now erecting a wharf from the shore, where the line of their said road terminates, into the Susquehanna river which said contemplated wharf, is designated on said plat; that the river is 240 perches wide at the point where the said wharf is to be erected, that it is 94 perches from the Cecil shore at said point, to the opposite shoal or bar, formed in said river from the lower end of Watson's Island; that the said wharf extends 49 perches into said river, being more than one-fifth of the whole width of said river, and exceeding half [**3]  its width from the Cecil shore, to the bar formed from the lower end of Watson's Island; that the said wharf will encroach about 250 feet on the channel of said river, which flows between Watson's Island and the Cecil shore, and extends that distance further, than is necessary to admit of the safe and easy approach of any vessel navigating said river, or which said rail road company can desire to employ for the purpose of crossing the said river, if they have any authority to establish a ferry at said river, or to place any fixture below the high-water mark in said river, which the complainant denies, and he shows that said wharf when constructed, will be an encroachment on the rights of navigation, and an injury thereto, which said company have no authority to interfere with.

And the said bill further alleged, that prior to the act of 1835, ch. 168, persons owning lands on the margin of the navigable waters of this state, had no lawful authority to erect wharves, so as to encroach on the streams below high-water mark, and that the said statute has conferred the right on the proprietors of fee simple estates, with an express saving in favour of the rights and interests of navigation [**4]  and fishing; that the company have no assignment from Coffield, and are not the proprietors of the fee, from which they are constructing said wharf, but that the same is vested wholly in complainant; that said wharf will extend across about one-half the haul of his seine from his fishery, and render it impracticable to fish the same as heretofore, and that it will wholly destroy his fishery, which is worth fifteen thousand dollars; that he owns other valuable fisheries a small distance below the one before mentioned, and has owned them for upwards of twenty years, which the erection of said wharf will tend to injure; that such obstructions create deposites of sediment and mud, and tend naturally to fill up the shore, make flats of mud and destroy fisheries.

The bill further charged, that the company had no authority to ply a ferry boat across the river, and that the wharf under construction was in fact a bridge, extending more than half the distance across the eastern branch of the river, is not necessary nor indispensable for any legitimate purpose within the charter powers of said company, and is a device to narrow a passage across the river without authority, to the injury [**5]  of your orator and the public; that any great destruction of the paramount interest of general navigation and fishing is void; and the bill then claimed damages for the injury about to be inflicted on complainant's rights. Prayer for an injunction against the company, to forbear from making, constructing, or completing the said wharf as laid out from Coffield's lot, or from using it, or placing obstructions in the river, and for a summons for the company, and subpaena for the president and directors thereof, and for general relief.

The complainant filed a plat, and a proven statement of a surveyor, verifying its courses and distances.

On the 13th September, 1836, the chancellor (Bland) granted the injunction, with liberty to the defendants after filing their answers, to move for a dissolution on ten days' notice to the plaintiff or his solicitor.

The answer of the rail road company averred its incorporation by the legislature of Maryland, to construct a rail road from the dividing line between the states of Delaware and Maryland, to some point on the Susquehanna river, and to erect all needful buildings, wharves, warehouses, and other edifices requisite for the business [**6]  of the said company, and also to establish a line of steamboats between the cities of Baltimore and Philadelphia, in connection with said rail road, and referred to the act of 1831, ch. 296, and its supplements. The answer admitted the construction of the wharf, at the place designated in the bill, but denied that it was unnecessarily extended into the river. It admitted that the company had not the title to Coffield's lease, but had made arrangements to procure it, and also admitted, that complainant was owner of the fisheries as charged, but insisted, they were so far below the wharf and ferry, that any injury to them from navigating the river was imaginary. All consequential injuries from deposites of sediment, &c. were also denied; that the complainant's fishing right was to be enjoyed contiguous only to his possessions, which the wharf did not interfere with, and his common right of fishing did not authorize this proceeding. The company admitted their design to use a steamboat in connection with the rail road, and the wharf erected for that purpose, but denied its extension to be greater than requisite to procure the necessary depth of water for a steamboat of the proper construction.  [**7]  The defendants denied that the wharf would injure the navigation of the river, and insisted, that if the spawn of the fish should be destroyed by the steamboat, it was an injury for which the complainant had no redress; that the steamboat and wharf were such, as according to the judgment of skilful engineers, were necessary for the convenient and free use of said rail road; that for any injury resulting from the navigation of the river the complainant cannot claim damages; that the habit of laying out seines in oblique directions from the shore, confers no several right of fishery, and that in public navigable rivers, the right of navigation, is paramount to that of fishery.

After the filing of the answer, the company by petition prayed for the hearing of a motion, to dissolve the injunction at an early day, but the chancellor being of opinion that his original order had sufficiently provided for that motion, dismissed the petition with costs.

Afterwards it was agreed, that the motion should be heard on the 14th October, 1836; and the complainant then filed various exceptions to the answer, insisting that the injunction should not be dissolved, nor until the president and [**8]  certain directors of the company under subpaena by the bill, had also answered with the company.

On the 14th October, the chancellor continued the injunction until final hearing, or further order--and directed that the exceptions should stand for hearing, on the 15th November: Whereupon, the rail road company brought this appeal.  

DISPOSITION:
INJUNCTION DISSOLVED.  

HEADNOTES:

The grant of a several fishery, in a public navigable river, cannot be presumed from the mere uninterrupted use and enjoyment of the right of fishing for more than twenty years.

If such presumption can be made at all, from the fact of such use and enjoyment, it must be shown to have been in exclusion of the right of others, and the absence of an averment to that effect, in a bill praying for an injunction to protect such right, was held to be fatal to the complainants' case.

Though the grant of a right to erect wharves, and employ steamboats, if destructive of the paramount right of general navigation and fishing, may be void; the remedy is not by injunction, which is only applicable to special injuries in violation of private rights. Public grievances are not to be redressed by individuals at their own suit.  

COUNSEL:
OTHO SCOTT, for the appellant.

The complainant claims:

1. For an injury to a public river, an obstruction to the right of navigation.

2. For an injury to his private fishery.

1. Can the complainant obtain an injunction against a general nuisance. This is only remedied by a public prosecution, as an infraction of a public right Injury to navigation is not a ground for an injunction.

I shall consider the case on the ground of injury to private rights.

The act of 1834, ch. 281, sec. 4, confers on the company power to erect wharves. It confers all powers needful and requisite for the company. The power to connect the rail road and steamboat lines, incidentally confers the power of constructing a wharf. They must be brought to some point of contact. They must unite. This is apart from the express power,  [**9]  so far as the right of navigation is concerned, the legislature has granted it, and it is valid, unless their power is denied. A wharf is generally established to facilitate navigation. If defendants are authorized to construct it, it is no ground of complaint, that they have done so. The legislature has a right to control the public right of navigation. This is done in so many cases of canal and rail road companies, that practically the right is not disputed. Such an act is valid in the legislature. Hooker vs. Cummings, 20 John. 90. The legislature may delegate this power, and no injunction is obtainable for obstructions to navigation in a case like the present.

The only other question raised by the bill is, has the complainant set forth a several right of fishery, or can it be claimed in the public waters.

At common law, there was, and is, a common right to fish in public rivers. How did the complainant get the right to fish? No such right is acquired, unless from the legislature. The grant of soil adjacent to public waters, does not grant a several right of fishery. This right must be expressly granted. Warren vs. Matthews, 6 Mod. 73. Hamer vs. Raymond, 1 Serg. and Low.  [**10]  266. The right here is claimed, upon what might be evidence of a right of several fishery. But the complainant should have stated his several right as acquired, and in the legitimate mode. The mere claim does not confer it. No right springs from twenty years use of a public navigable river. It is not like the use of a private way, where the right is presumed in lieu of an invasion of the private right. The idea is, that user is sufficient to deprive one of a public right. But in this case, the user encroaches upon no one, there was originally no violation of law. The party was only pursuing a common right. Chalker et al vs. Dickinson et al, 1 Con. Rep. 382. Vooght vs. Winch, 2 Bar. and Ald. 662. The complainant then shows no several right of fishery.

Has the legislature then a right to erect a wharf, which interferes with a common right of fishery.

The right of navigation is paramount to the right of fishery, which gives the right of making wharves. The paramount right gives the power to sustain it by various improvements. App. to Angel, 110, 94. Harmond vs. Pearson, 1 Camp. 517. The right of fishing is subordinate to the right of navigation. The object of the law is to facilitate [**11]  navigation, to navigate with steamboat, the modern improvement is no legal interference with the right of fishing; as to piscarian rights assuredly twenty years user, is evidence of a grant. Then would the conversion of all such rights of the state into several rights, vary the rights of navigation? These would still remain. The soil of navigable water covered by it, may be granted, but the right of navigation still remains, as also that of fishing. Browne et al, Lessee vs. Kennedy, 5 Har. and John. 196. All private rights of soil and fishery, are subordinate to the rights of navigation. Buoys may be erected within the lines of a several fishery covered by navigable waters. The private right in this case is not a perfect but a modified right, liable to modifications; obstructions may be removed to improve navigation. Channels may be deepened and varied and fishing apparatus destroyed. In some cases unnavigable rivers are controlled, and navigation improved, by interference with private rights. The character of our American rivers, where there is no tide, no flux or reflux, which according to the common law would make the Ohio a private river, is affected by these principles, and the [**12]  rights, in these waters are subject to modification.

The answer denies the right of a several fishery, and the plat shows how the right claimed has been exercised. If a right of several fishery is appurtenant to the shore, it is limited by the extent of the proprietor's possessions. The right claimed here exceeds the shore. It is in front of the shore of another, and not from a right line to the middle of the river, but on a diverging line covering double his extent of shore.

The abuse of the channel is denied, and as the channel has to be passed by the steamboat of the company, there is no inducement to extend the wharf beyond the necessary distance.

A grant binding on a public river does not confer any right of soil below low water mark, on private rivers the right extends to the middle of the stream. The soil covered by navigable waters was in the king: the complainant's tract is said to be bounded by the Susquehanna river.

If the answer on this motion is taken to be true, it is a negation of every fact on which the complainant could claim an injunction. The right to fish, the unlawfulness of the wharf, and its unnecessary extent, are all denied.

An exception [**13]  has been taken to the answer that it is not sworn to: the seal of the corporation is as effectual as the oath of other defendants: if not so it is out of the power of a corporation to put in an effective answer to an injunction bill, for where matters are not within the private knowledge of the officers of a corporation they are not properly parties. Haight vs. Proprietors of the Morris Aqueduct, 4 Wash. C. C. Rep. 600. Angel on water courses, 99, 211. Weld vs. Hornby, 7 East. 195.

H. STUMP, and A. CONSTABLE, for the appellee.

The counsel for the appellee propose to examine the order granting the injunction, and the order overruling the motion to dissolve it, in conjunction, under the impression that the case as presented by the record, shows that both orders rest upon the same facts: and in support of this view they will contend:

1st. That no answer has been filed which the court can regard, upon the motion to dissolve; and

2d. That if the answer of the corporation is considered, it does not contain a sufficient denial of the allegations upon which the injunction was awarded to entitle the defendants to a dissolution.

This bill was exhibited against the Wilmington [**14]  and Susquehanna Rail Road Company, James Canby, its president, and Matthew Newkirk, and David Wilson, the only two of its directors known to the complainant--process is prayed against them, and Canby, Newkirk, and Wilson are required to answer upon oath. The only answer filed is by the corporation and that under their common seal merely.

The object of the complainant was to obtain a discovery under oath, as to the truth of the allegations contained in his bill, and with that view he made Canby, Newkirk and Wilson, defendants. There was no other mode by which he could compel such a disclosure, the corporation having the right to answer under their common seal. An officer or agent of a corporation, who is made a party to a bill seeking a discovery in regard to the acts of the corporation of which they are officers or agents, is bound to file a sufficient answer under oath. Wych vs. Meal, 3 Peere Wms. 310. Dumner vs. Corporation of Chippenham, 14 Vesey, 245, and 1 Page's Ch. Rep. 100.

The complainant has taken every legal precaution then, by resorting to the only means that could entitle him to an answer under oath, and yet while such answers are purposely withheld, a dissolution [**15]  of the injunction is sought upon the answer of the corporation alone, without other evidence of the verity of its contents than that which its official seal furnishes. Such an answer cannot be allowed any influence upon the decision of the motion to dissolve. It has no other effect than to put in issue the matters in controversy like the general issue plea at law, and does not upon final hearing require the evidence of two witnesses, or of one corroborated by pregnant circumstances, to rebut it. Union Bank of Georgetown vs. Geary, 5 Peters' Rep. 111.

The corporation asked a hearing of the motion on their answer alone, with full knowledge that the complainant sought a discovery through its agents under oath. The prayer of the bill for subpoaenas to compel its officers to answer upon oath, evidenced the complainant's unwillingness to abide by statements, to which its corporate seal might be affixed. It was notice to the corporation that he required that his own oath should be supported, or rebutted, by the affirmation of individuals who would act under proper moral and legal responsibility. What liability is incurred by the false response of a corporation? It is an intangible and [**16]  artificial being, deriving its existence from legislative enactments, incapable of committing perjury, and as strongly expressed by chancellor Kent, "having neither soul to be saved nor body to be kicked."

The corporation then acted with full notice of what the complainant required, and being bound to know the legal character and effect of their own answer, if it is repudiated, the fault is their own.

What then is the effect of the answer of a corporation under its common seal, unsupported by either the oath or answer of any of its officers? This question is settled in the case of the Fulton Bank vs. the New York and Sharon Canal Company and others, 1 Page's Chan. Rep. 311, in which the president of the corporation had made oath to its seal, and the secretary, "who was not an officer of the company at the time of the transactions," that he believed the facts to be true. Yet chancellor Walworth, after remarking, that as corporations answered under their common seal without oath, they were at liberty to deny every thing contained in a bill whether true or false, expressly laid down, "but no dissolution of an injunction can be obtained upon the answer of a corporation, which [**17]  is not duly verified by the oath of some officer of the corporation, or other person, who is acquainted with the facts contained therein." That there was "no hardship in the rule as applied to corporations, as it only put them in the same situation as other parties."

This rule is sustained by reason and analogy. The injunction is granted upon the complainant's statements verified by his oath; nothing short of the oath of a defendant can countervail them. They are regarded as true not merely until denied, but, until there is a denial accompanied by all the weight of moral and legal responsibility that attached to him who made them. No one will pretend that the seal of a corporation furnishes as strong indicia of truth as the oath of a responsible individual. On the contrary, as chancellor Walworth justly observes, "they are at liberty to deny every thing contained in the bill whether true or false." To place then the bill of an individual regularly sworn to upon the same footing with the answer of a corporation under their common seal, would be virtually a denial of the efficacy of those moral and legal obligations under the weight of which every oath is taken. If therefore it [**18]  were even admitted that the answer is strictly responsive to, and denies all the equity of the bill, it could not avail the defendants, because it wants the indispensable sanction of an oath

2d. Supposing it properly verified, and yet we contend that it cannot entitle the defendants to a dissolution of the injunction, and for the obvious reason that all its denials are from information and belief merely.

It is well settled, that an injunction will not be dissolved "unless the defendants positively deny all the equity of the bill. A denial from information and belief is not sufficient." Ward vs. Van Bokkelen, 1 Page's Ch. Rep. 100. N. Rogers, et al vs. H. Rogers, et al, Ib. 426. 5 Peters' Rep. 111. 2 Gill and John. 208, and the case of the Fulton Bank vs. the New York Canal Company, et al, before cited, in which the chancellor says, "the officer of the institution, who was such at the time referred to in the complainant's bill, has studiously avoided saying any thing as to the truth of the answer, leaving it to the secretary, who knows nothing of its truth or falsehood, to express his belief on the subject." In this case too the secretary made oath to his belief of the truth [**19]  of the answer, while here there is no affidavit by any one, not even as to the seal of the corporation. The sentence we have quoted appositely describes the conduct of the president of this corporation. He will neither answer for himself, nor verify the answer of the company. We insist therefore that upon both grounds the answer of the corporation must be disregarded.

But if the answer is respected and its statements accorded the weight of positive denials, we should still contend that there is sufficient matter in the bill, that the corporation has either not denied, or omitted and refused responding to, and which on the question of dissolution is to be taken as true. Young vs. Grundy, 6 Cranch's Rep. 51, for granting and continuing the injunction.

We cannot, however, doubt that under the circumstances of this case, the court will decline entering into any analysis of the answer with a view to discover its admissions or omissions, but will look solely to the bill, which is uncontradicted upon oath, as furnishing the only evidence of truth by which to direct their inquiries.

Did the complainant then present in his bill an appropriate case for the interposition of the [**20]  court of Chancery by injunction? What are the facts upon which he sought relief?

The bill alleges that the complainant's father being seized in fee under a patent from the state, of a valuable tract of land bounded on the Susquehanna river, established upwards of twenty years since, by clearing out the bed of the river at a considerable expense, certain fisheries on said property, at which by means of seines hauled over certain portions of said river, large quantities of shad and herring were annually taken.

That at his death he devised said estate with all and singular its rights and advantages of fishery to the complainant, under which devise the complainant entered into possession and has always since then quietly and without any kind of interruption, held, used and enjoyed the same, together with its rights and advantages of fishery, as laid down in a plat made out and sworn to by the surveyor of Cecil county, and exhibited with his bill, shewing the river, fishing shores, the haul of one of his seines, and the wharf, which the rail road company are constructing.

That in the year eighteen hundred and eleven, the testator leased to one Martha Coffield, for the term [**21]  of ninety-nine years, at an annual rent, with covenants for renewal and for re-entry or non-payment of the rent, about eight acres of said estate. That immediately below said lot one of the said fisheries was established, and the haul of the seine from which extends along and above the shore of said lot and over to the bar making into the river from Watson's Island, as particularly shown upon the plat: and that owing to the rapidity and strength of the current of the river, a seine cannot be laid out and hauled from said fishery in any other direction than that designated on said plat; and that the complainant and those under whom he claims, have so used, possessed and enjoyed said haul, without interruption, and been always accustomed so to lay out their seines, for upwards of twenty years.

That the Susquehanna and Wilmington Rail Road Company, a private corporation, created by a statute of Maryland, have located the track of their road over the said lot, leased to Coffield, and are erecting a wharf from the shore, where the line of said road terminates.

That the Susquehanna river is two hundred and forty-three perches wide at the point where said wharf is to be erected,  [**22]  and that it is ninety-four perches from the Cecil shore, at said point, to the opposite shoal or bar formed in said river, from the lower end of Watson's Island; that said wharf extends forty-nine perches from the shore, being more than one-fifth of the width of the river, and exceeding half its width from the Cecil margin to the bar making from the lower end of Watson's Island: that it will encroach about two hundred and fifty feet upon the channel of the river flowing between Watson's Island and the Cecil shore, and extend that distance further than is necessary to admit of the safe and easy approach of any vessel navigating the said river, or which said rail road company can desire to employ for the purpose of crossing said river, if they have any authority to establish a ferry, or place any fixture below high-water mark, in said river, and that the construction of said wharf will be an injury to the navigation wholly unauthorized by their charter.

That said wharf will extend across about one-half of the haul of complainant's seine from his aforesaid fishery, render it impracticable to fish it as heretofore, and entirely destroy the fishery. That the said haul, appurtenant [**23]  to said fishery, as aforesaid possessed, used and enjoyed, for upwards of twenty years, is a valuable right, defined and protected by law, and which the said rail road company have no authority to impair or injure, and that his said fishery, which the erection of said wharf will utterly destroy and ruin, is worth fifteen thousand dollars.

The bill further alleges that the complainant owns several other valuable fisheries, situate on said river, a short distance below the before mentioned fishery, which, with the hauls respectively attached to them, have been possessed, used and enjoyed by him, and those under whom he claims, for upwards of twenty years, and that the erection of said wharf will tend greatly to injure, if not entirely destroy them; that the great quantity of mud and other deposite which will lodge and accumulate about said wharf, and gradually spread itself and settle for a considerable distance along the shore, will fill up and ultimately render the whole shore now owned and used for fishing by complainant, a flat of alluvial deposite, unfit for fishing, and valueless.

That the water which covers the haul of his several fisheries has been from time to time,  [**24]  by the proprietors thereof, cleared of obstructions at great cost and expense, in order to improve the fisheries; that his said last mentioned fisheries, and shore adapted to fishery, is worth sixty thousand dollars, and that if the same is not entirely destroyed it will be very much injured and depreciated in value by the erection of said wharf.

The bill further alleges that the said wharf is not necessary or indispensable for any legitimate purpose within the charter powers of said company, but is a device and invention of its agents to narrow the passage across said river, without authority, and to the great injury of complainant and the public; and that if any authority to erect a wharf has been conferred on said rail road company, which is denied, it was never intended that they should exercise it so as to interfere with the paramount interests and rights of navigation or fishery.

We have made these extracts from the bill in order that the court might have a condensed statement of the prominent facts on which the orders of the chancellor, from which this appeal is taken, were based.

1. The appellee claims to be entitled as riparian proprietor to a moiety of the [**25]  bed of the Susquehanna river in front of his estate, and to a several right of fishery over the same

The wharf which the rail road company is constructing projects into the river within these limits; and if the appellee's pretensions are well founded, clearly encroaches on his property.

It will no doubt be contended on the part of the appellants, that according to the rule which has prevailed in England, the riparian proprietor is not entitled to the soil or several fishery filum aquae of navigable rivers, and that, as the Susquehanna, where it bounds the estate of the appellee, is a navigable river, meaning technically a river in which the tide ebbs and flows, he is subject to the operation of that rule.

What then is the English rule, and how far does it apply to this case?

It seems always to have been well settled in England that every riparian proprietor was entitled prima facie to the soil and right of fishery, ad filum medium aquae, in all private and public rivers, in the former absolutely, and in the latter subject to the easement of navigation.

Hale, in his treatise De Jure Maris, ch. 1, Harg. Law Tracts, 5, says, "Fresh rivers of what kind soever,  [**26]  do of common right belong to the owners of the soil adjacent; so that the owners of the one side, have of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquae; and the owners of the other side the right of soil or ownership and fishing unto the filum aquae on their side. And if a man be owner of the land of both sides, in common presumption he is owner of the whole river, and hath the right of fishing according to the extent of his land in length. With this agrees the common experience."

Ch. 3, page 8--"There be some streams or rivers, that are private not only in propriety or ownership, but also in use, as little streams and rivers that are not a common passage for the king's people. Again, there be other rivers, as well fresh as salt, that are of common or public use, for carriage of boats and lighters. And these, whether they are fresh or salt, whether they flow and reflow or not, are prima facie publici juris, common highways for man or goods or both from one inland town to another. Thus the rivers of Wey, of Severn, of Thames, and divers others, as well above the bridges and ports as below, as well above the flowings of the sea [**27]  as below, and as well where they are become to be of private propriety as in what parts they are of the king's propriety, are public rivers, juris publici. And therefore all nuisances and impediments of passages of boats and vessels, though in the private soil of any person, may be punished by indictments and removed."

The author must not be understood as meaning that the soil of public rivers is "prima facie publici juris," but only that the public are entitled to the use of the stream for the purposes of navigation and commerce, as is shewn by the following quotation from ch. 2, p. 8, in which he treats of the "rights of prerogative" over such rivers. "These public rivers for public passage are called fluvii regales; not in reference to the propriety of the river, but to the public use. And therefore the report in Sir John Davyes of the piscary of Ban mistakes the reason of these books, that call these streames le roy, as if they were so called in respect of propriety, for they are called so because they are of public use, and under the king's special care and protection, whether the soil be his or not."

But the property in the soil of all arms of the sea and rivers in [**28]  which the tides flowed was prima facie in the king. Hale's De Jure Maris, ch. 4, pp. 10, 11, 17; ch. 5, pp. 19, 20, and opinions of Hale, Ch. Jus. in the case of Lord Fitzwalter, 1 Mod. 106; Holt, Ch. Jus. in The King vs. Wharton, et al, 12 Mod. 510; Lord Mansfield in Carter, et al vs. Murcot, et al, 4 Burr. 2164, and of Buller Jus. in Rex vs. Smith, Doug. 446.

The rule then is well established in England, that the right of property in the soil of navigable rivers is prima facie vested in the crown, and in that of private rivers, in the riparian proprietors, usque filum aquae.

These principles, as well as the reasons on which they were established, have been recognized and adopted in this country in the following cases. In Palmer vs. Milligan, 3 Caines, 319, Kent, Ch. J. applied the doctrine to the owners of the banks of the Hudson river as low down as Stillwater. So as to the river Saranac in the case of The People vs. Plate, 17 John. Rep. 197, and as to the Salmon river in Hooper vs. Cummings, 20 John. Rep. 90. The same general rules are adhered to in ex parte Jennings, 6 Cowen, 518, and per chancellor Walworth and senator Allen, in the case of The Canal Commissioners vs.  [**29]  The People on the relation of Tibbits, 5 Wendall, 423. In the cases of Adams vs. Pease, 2 Con. Rep. 481, and of the Commonwealth vs. Chapin, 5 Pick. Rep. 199, they are applied to the Connecticut river--in Clarmont vs. Carlton, 2 New Hamp. Rep. 370, to the Sugar river--in Hayes, Ex'rs vs. Bowman, 1 Ran. Rep. 418, to South river, and in Gavit vs. Chambers, et al, 3 Ham. Rep. 495, to the Sandusky river. They are adopted by judge Story in the case of Taylor, et al vs. Wilkinson, et al, 4 Mason's Rep. 400, in respect to the Pawtucket river, and adhered to by him, in Farum vs. Blackstone Canal Corporation, 1 Sum. Rep. 52. In the cases decided as to the rivers Hudson, Connecticut and Sandusky, the doctrine was applied to portions of those rivers that were navigable and used as public highways; and the opposite views asserted by a majority of the court in Carson vs. Blazer, 2 Bin. Rep. 476, are controverted in both Hooker vs. Cummings, and the Commonwealth vs. Chapin.

But in some of the states the riparian right has been deemed, as we think it should in Maryland, to apply equally to rivers in which the tides flowed and reflowed. In New Jersey the grantees of lands bounding on the Delaware,  [**30]  Rariton, and other navigable rivers, as well as those adjacent to public rivers, own the soil to the centre of the stream. Angell on Tide Waters, 44.

2. The appellee claims a right of property in the bed of the river, filum aquae, under a grant, which may be presumed from his long and uninterrupted possession.

Such a right in a navigable river might be granted in England by the king, and here by the State. Has then the appellee's possession been of sufficient duration to afford the presumption of a grant?

It is well settled, both in England and in this country, that an uninterrupted possession for twenty years, is a sufficient foundation for the presumption of a grant. 6 East. 215. Gray vs. Bond, 2 Brod. and Bing. 667. 4 Wash. C. C. Rep. 608, and in the case of Palmer vs. Hicks, 6 John. Rep. 137, it is conceded that evidence of long exclusive possession and use, will warrant the presumption of a grant of lands under navigable waters, to the owner of the adjacent soil. No distinction is taken in this case in regard to the presumption, as against a title set up by a citizen, and that preferred by the State, though the court seem to allude to a claim by the commonwealth.  [**31]  But in Maryland, by the act of 1818, ch. 90, such a possession is made, per se, a complete bar, not only as against an individual, but to any claim asserted on the part of the state; the act is, in terms, an unconditional surrender on the part of the state, in favour of any party who has held twenty years undisturbed possession. But if the right of entry by the state is not expressly barred in the present case, still this statute is applicable by analogy, and in that view furnishes evidence of the length of possession, which should authorize the presumption of a grant. "In general the supposition of a grant is limited to periods analogous to those of the statute of limitations in cases where the statute does not apply." Ricaud vs. Williams, 7 Wheat. Rep. 59.

If then the appellee has acquired a title to the bed of the river in any of the modes we have suggested, he is prima facie entitled to a several fishery in the same.

The next inquiry is, as to whether these rights were transferred to Coffield, so far as the demised premises bind along the river?

Conceding that the lease prima facie vested in the lessee the property in the soil to the middle of the river, yet we apprehend,  [**32]  it is competent for the appellee to rebut this presumption of title. There is nothing in the record shewing, that the soil covered by the river, and embraced within the haul of one of the appellee's fisheries, is expressly mentioned as parcel of the demised premises, but on the contrary, as the lot is located on the plat, it only extends to the shore. If it passed then it must have been by implication and presumption, which may be explained or contradicted by circumstances, showing that the lessor and the appellee have continually exercised acts of ownership over it. Doe vs. Burt, 1 Term Rep. 704, and Keenlake vs. White, 2 Stark. Rep. 508.

The evidence furnished by the averments of the bill, is, that they had annually removed obstructions, and held, used, and enjoyed the premises as appurtenant to their fishery, and without any kind of interruption. Are not such acts of ownership then for the period of twenty years, over the place in controversy, sufficient to repel the presumption of its being part of the demised premises? We think they should be so regarded.

But admitting that the right of property in the soil of the river, passed to Coffield as a part of the demised premises,  [**33]  and still we contend, that the circumstances stated in the bill, lay a proper foundation for the presumption, that a several right of fishery was reserved.

The soil of a river may be granted and a several right of fishery reserved. Such a reservation might be by parole, 6 John. Rep. 5; though a sufficient time has elapsed in this case to presume it was by deed. If then the continuous use and enjoyment of a several right of fishery in the water opposite the demised lot, by the lessor and the appellee, for the whole period since the date of the lease, being now upwards of twenty-five years, be regarded as rightful, and which it must in the absence of any allegation to the contrary, it must be presumed to have been reserved by the lessor. Such a presumption is supported by other facts in the case. The fishery was established at the time the lease was made. The rent reserved was but one hundred dollars, and the fishery is stated to be worth fifteen thousand dollars, but utterly valueless without the haul extending out into the river along and opposite the shore of the property leased. Can it then for a moment be supposed that the lessor made any demise which destroyed such a valuable [**34]  property, and that upon the nominal consideration reserved as rent? We must therefore presume a reservation of the right of fishery, and if so, neither Coffield nor any party claiming under her, can be permitted to destroy such right.

Suppose that no such reservation was made and that the lessee became invested with both the right of property in the soil and the right of fishery; then we should contend, that the twenty years possession and enjoyment by the lessor and the appellee, warranted the inference, either of an abandonment, or a surrender of the fishery by the lessee. Such a period is sufficient to gratify the requisitions of the statute of frauds by affording the presumption of a surrender in writing and by deed.

4. The appellee claims a several right of fishery, in that part of the Susquehanna river where the rail road company are constructing their wharf, by usage, prescription, and an uninterrupted and exclusive enjoyment for more than twenty years.

The averments of the bill are, that the fishery, which the wharf will entirely ruin and destroy, had been established and kept in order for upwards of twenty years, at a considerable annual expenditure, incurred [**35]  by the removal of obstructions out of the bed and water of the haul; and over which, during the whole of that period, they had been accustomed at the fishing season to lay out and haul their seine, in the manner described on the plat, without objection or interruption.

Do these facts then establish a several right of fishery, as claimed by the appellee?

1. It is well settled in England that a several right of fishery in navigable rivers may be acquired either by grant, usage, or prescription. Hale, in his De Jure Maris, ch. 5, p. 18, after speaking of a subject's right to a several fishery in the sea, if by the king's charter or grant, and which are without question, says, "The second right is that which is acquired or aquirable to a subject by custom or prescription; and I think it very clear, that the subject may by custom and usage, or prescription, have the true propriety and interest of many of these several maritime interests, which we have before stated to be prima facie belonging to the king. A subject may by prescription have the interest of fishery in an arm of the sea, or in a creek or port of the sea, or in a certain precinct or extent lying within the sea; and [**36]  these not only free fishing but several fishing." And p. 19, "though prima facie, an arm of the sea be in point of propriety the king's, and prima facie it is common for every subject to fish there, yet a subject may have by usage a several fishing there, exclusive of that common liberty which otherwise of common right belongs to all the king's subjects." In the case of the Mayor and Commonalty of Oxford vs. Richardson, 4 Term. Rep. 439, Lord Kenyon says, "with regard to the question of law in this case, as to the right claimed by the plaintiffs, there can be no doubt but that there may be a prescriptive right in a subject to a several fishery in an arm of the sea;" and Buller, Jus. observes, "one party is to prove that this is an arm of the sea, in which prima facie every subject has a right to fish; the other is to establish a prescriptive right, which destroys the general right." Ib. 440.

It is equally clear that the right of several fishery may be established in the same manner in this country. Jacobson vs. Fountain, et al, 2 John. Rep. 170. Gold vs. James, 6 Cowen 369. Rogers vs. Jones, 1 Wendall, 237, and Brown vs. Kennedy, 5 Har. and John. 206. The only case which questions [**37]  this right, is that of Warren vs. Mathews, in 1 Salk. 357 and S. C. 6 Mod. 73, but that case is supposed to have been misreported, as none of the authorities cited in either report sustain it, but some of them directly the opposite, and it was so ruled in Rogers vs. Jones, by the supreme court of New York.

2. This right does not depend on a riparian ownership, but may be vested in a person who neither owns, nor has any interest in the banks or soil of the river in which it is exercised and enjoyed. "Fishery may be of two kinds, ordinarily, viz: the fishing with the net, which may be either as a liberty without the soil, or as a liberty arising by reason of, and in concomitance with the soil, or interest or propriety of it." De Jure Maris, 18. It is true that at one time some doubts seem to have been entertained in England, as to whether a several right of fishery could exist independently of an interest in the soil or adjacent banks of the river. But in Coke Litt. 122, letter m, it is laid down, that "a man may prescribe to have separatum piscariam in such a water, and the owner of the soil shall not fish there." In the annotations of Hargrave, note 7, he says, "according to this [**38]  passage, ownership of the soil is not necessarily included in a several fishery;" again, "nor do we understand why a several piscary should not exist without the soil, as well as a several pasture;" and after collecting and reviewing the authorities in support of the opposite doctrine, he concludes, "hence, as it should seem, the arguments are short of the purpose; for at the utmost they only prove, that a several piscary is presumed to comprehend the soil, till the contrary appears, which is perfectly consistent with Lord Coke's position, that they may be in different persons, and indeed appears to us to be the true doctrine on the subject. Ib. And in the case of The Duke of Somerset vs. Fogwell, 5 Barn. and Cres. 875, an action was maintained by the plaintiff, without either the property of the soil or the water, for injury to his several fishery in the river Dart, where the tide flowed and reflowed.

It would therefore be competent for us to rely upon the long user and enjoyment by the appellee, and those whom he represents, as establishing a personal right in them, by usage and prescription, to haul the seine over the place where the rail road company are erecting their wharf.  [**39]  

3. But we contend further, that it is a right appurtenant to the fee simple estate of the appellee in the shore from which his seines are laid out. Within what period then may such a right accrue to a person by prescription?

There can be no doubt that the uninterrupted use and enjoyment of a right of fishery in a private river for the period of twenty years would establish title to a several fishery. It has been repeatedly adjudged that such user and enjoyment, in any particular manner, of the water of a stream not affected by the tides, afforded a conclusive presumption of right. Balston vs. Bensted, 1 Camp. Rep. 463, and Taylor vs. Wilkinson, 4 Mason's Rep. 404, and in the case of Ingraham vs. Hutchinson, 2 Con. Rep. 584, it was decided not to be necessary that such enjoyment should have been adverse to the claims of those affected by it. If we assume that the property in the soil and right of fishery, opposite Coffield's lot, were granted by the lease, then, according to the principle of the case of Brown vs. Kennedy, those rights were subject to the rules of law applicable to private property; and being so, the unexplained use, occupation and enjoyment by the lessor and [**40]  the appellee, furnishes a conclusive presumption of right; consequently, no title derived under Coffield could avail the appellants.

4. But it will be urged that the river being navigable, the place in dispute belongs to the public, and as against them no right of several fishery could be acquired by the occupancy and user for twenty years.

In answer to that view we contend, that the facts of this case establish an unquestionable right both against Coffield's assigns and the state. It is true that legal prescription is still reckoned in England from the reign of Richard 1. notwithstanding the statute 32, Henry VIII. reducing the time within which a writ of right should be brought, 2 Black. Com. 31; but so sensible are the courts of the great inconvenience of the rule, that they in effect evade its requisitions by uniformly directing the jury to presume a grant, after the lapse of twenty years; which is the very basis of a prescriptive right; and differs from it merely in respect to the mode of pleading and the nature of the presumption.

These views are ably illustrated and enforced in the case of Coolidge vs. Learned, 8 Pick. Rep. 505, in which the supreme court of Massachusetts [**41]  held, that sixty years were sufficient to create a good prescriptive right; and in Melvin vs. Whiting, 10 Pick. Rep. 295, they determined that forty years possession established by prescription a right in the plaintiff of several fishery in the Merrimack river. But there are other cases in which a much less period of time has been deemed sufficient to support a right by prescription. In the case of Jacobson vs. Fountain, 2 John. Rep. 170, an action of trespass, for going upon the plaintiff's shore and several fishery in tide water, was sustained by evidence of a usage for only eighteen years; and Chief Justice Savage, speaking of this case, in Gold vs. James, 6 Cowen, 376, says, "Jacobson vs. Fountain is an instance in which the plaintiff proved a prescriptive right to the fishery opposite his soil." And why shall not a party as well be permitted to prescribe for a right of several fishery, as for a right of way; or for a charter to a corporation, as in Stockbridge vs. West Stockbridge, 12 Mass. Rep. 400, where thirty years usage was ruled sufficient; or for a ferry, Stark vs. McGowen, 1 Nott and McCord 378, and 3 Page's Ch. Rep. 314. In these cases the prescriptive right is established [**42]  against the public, as the presumption is of a grant of the franchise from the government; and vide 5 Har. and John. 122. But we think that twenty years should be held sufficient in this state, by analogy to the act of 1818, ch. 90; which, viewed as a relinquishment on the part of the state, of a right of entry upon land, after twenty years uninterrupted occupancy, that the same time should, in respect to an incorporeal right, be adopted as the period of legal prescription.

5. If however, the averments of a quiet and uninterrupted enjoyment of this appurtenance are not sufficient to establish a right by prescription, yet we insist, that the appellee is entitled by usage to the several fishery.

6. But should a user for twenty years, when uncontradicted, be deemed per se insufficient to vest in him a prima facie right, it would still be competent evidence to authorize the presumption of anterior usage in support of the right asserted. Parsons vs. Bellamy, Cridland, et al, 4 Price's Ex. Rep. 190.

7. It will probably be contended on the part of the appellant, that the fishery enjoyed by the appellee was the mere exercise of a common right, and therefore gave no several property [**43]  in the fishing place; and this view will no doubt be presented on the authority of the case of Chalker, et al vs. Dickinson, et al, 1 Con. Rep. 382. There the plaintiffs had uninterruptedly exercised the right of fishery in a particular place in the Connecticut river for fifteen years, and the court held, that as the river was navigable and the right of fishing in it prima facie public, the uninterrupted enjoyment for fifteen years, not being exclusive, conferred no right of several fishery. This case decided two questions, first that an uninterrupted was not necessarily an exclusive enjoyment; secondly, that in order to gain an exclusive right, the possession must be exclusive as well as uninterrupted. But while this case determines against the acquisition of the right by an uninterrupted enjoyment, it expressly concedes it when the possession has been exclusive. So that it clearly supports the doctrine we have been contending for, that the right might be acquired against the public by analogy to the period required by the statutes of limitations. But the difference between that case and the present consists in this, that the plaintiffs there, gave no evidence shewing that the possession [**44]  was exclusive, but rested solely on the ground that an uninterrupted enjoyment imported an exclusive one. They did not even prove that they owned the adjacent banks or shore from which they hauled, but seem to have enjoyed the fishery by nets or seines drawn from boats moored in the stream as is common even in the Susquehanna; much less that they had bestowed great labour or expended large sums of money, in clearing the bed of their haul of logs, rocks, mud and other obstructions in order to establish their fishery; and had annually, for upwards of twenty years, incurred trouble, labour and expense, in the removal of obstructions that accumulated in their haul, by periodical freshets in the river, so as to preserve their fishery. But they submitted their cause without offering evidence of a single fact from which even an inference that their possession was exclusive, could be drawn. Is that this case? Do we rest on the statement that we had "held, possessed and enjoyed this fishery quietly, without any kind of interruption, and been accustomed to haul seines there for upwards of twenty years?" No, but we aver acts, the very nature of which, are utterly irreconcilable with any other [**45]  tenure than that of an exclusive one. It cannot be presumed that, either the testator would have incurred such labour and expense in the establishment of this fishery, or the appellee have continued an annual expenditure for upwards of twenty years, for its preservation, if it had been common property, and the public, or any one without his permission, had a right to participate in its enjoyment. These circumstances show that the possession and enjoyment was sole and exclusive. We have therefore in the present case established what would have availed the plaintiffs in Chalker vs. Dickinson, so that it is a direct authority in support of the appellee's right of several fishery.

8. The right to lay out seines obliquely up the stream so as to fish the water in front of the shore above, is founded upon usage and custom. The bill expressly avers that owing to the rapidity of the current a seine cannot be laid out in any other manner. The usage is general and prevails not only on the Susquehanna river, but at the fisheries on every stream where there is considerable current, and arose from necessity. The river is always so high during the fishing season as to render it utterly impracticable [**46]  to lay out a seine opposite the fishing shore and land it at the same place in such a manner as to catch fish; the rapidity and power of the current would irresistibly sweep it down the stream, and cast it rolled up on the shore below. All sales and grants of lands bounding on the Susquehanna are made with reference to this usage, and never before, since a seine was first launched into the river, has this right been questioned. We submit, therefore, that under these circumstances, the lessee could not have intercepted the exercise of this right.

9. But the right of owners of fisheries on the Susquehanna to their respective hauls, is recognized and sanctioned by the act of 1807, ch. 114, and by a substitute for that act, passed in 1820, ch. 199. By this act the legislature evinced more than ordinary interest in the preservation of the invaluable and cheap source of sustenance which those extensive fisheries furnished; for they not only absolutely inhibit the enjoyment of the common right of fishery within the hauls of the shore fisheries, but even make the paramount right of general navigation, in some respects subordinate to their perfect security. Whatever therefore, may have [**47]  been, antecedently to the enactments of this law, the tenure by which riparian proprietors who had established fisheries on the Susquehanna, held and enjoyed their respective hauls, this statute furnishes a distinct admission and affirmance on the part of the legislature, of their legal existence, and strong claims to protection. Will it then be determined, that those rights, which have been exercised for the public advantage under the sanction of legislative enactments for thirty years, have no legal foundation, and may be wrested from the citizen, without indemnity, by the pleasure or caprice of the appellants?

That an enlightened public policy vigilantly guards and fosters those rights is shewn by the act of Dec. Sess. 1835, ch. 168, which, in granting to the owners of fee simple property, the right to wharf out into navigable rivers, annexes a proviso, that they shall not be "so extended as to interfere with the fishing or navigation of said waters." And the act, under which the rail road company are claiming to erect this wharf, manifests the same anxiety to preserve the shore fisheries, by withholding the power of condemnation of property for the site of a wharf; they must [**48]  acquire it by purchase: vide sec. 4, ch. 281, act of 1834.

MAYER, in reply, for the appellants.

Upon the absence of answer of the directors, with the answer of the corporation. That answer is called for only on the principle of discovery, with reference to the points relied on, it could have no effect. It might be useful in the further progress of the cause, but here, not necessary. The bill as against the agents of the corporation is merely for discovery, it can neither give nor withhold relief to the corporation. If the answer of directors was on file, the company, looking to the principles and origin of the practice requiring such answers, could not use it for their relief. In opposition to the corporate answer, of no effect.

If the answer of a corporation has not the effect of an answer on oath, as to injunctions, how could they procure a dissolution? Proof which could not avail, is not to be demanded. The legislature might apply a remedy.

The case in 5 Peters, simply decides, that the answer as evidence at the final hearing shall not have the effect to require two witnesses to contradict it. In England, in ordinary cases the bill and answer are before the chancellor,  [**49]  prior to issuing the injunction.

There is however, more here than a mere answer. The petition of the complainant by the oath of the president refers to the answer and verifies it. The oath of the engineer shows the necessity of the wharf as constructed by the company. It was filed with the answer, and denies the equity of the bill. The defect of the bill as to officers, is that they are not connected with the discoveries sought.

But independent of this question, there is sufficient reason on the face of the bill, against the injunction, which arises from the merits. A wharf is complained of. The intention of the company is immaterial. The effect of the wharf is matter of inducement. What does the bill charge? That the owner of the land for twenty years, had certain fisheries; that the wharf will injure the fishery and navigation. The bill insinuates that the wharf is longer than the company can desire, if they have any authority to erect it, and assigns as a reason for it, that there is an easy and safe approach for a ferry boat to the shore. This is the whole rationale of the complainant's conclusions. The bill is argumentative as to this point, and is destitute of the necessary [**50]  averments to present a case of improper extension of the wharf into the river.

What is the object of the bill? There is no usurpation of the soil, on which the wharf is erected. The right of the state to create the rail road company is not denied. But he complains of an incidental injury, for which his bill can call for no specific relief but by injunction; as to an injury to the fishery, the law could give him full redress.

Then as to an injury to navigation. As to this no information lies by the attorney-general. The only remedy is by indictment. The grand jury cannot be superseded by other process. It is criminal in its character. A matter of public nuisance, no individual, except for injury sustained, could be redressed at common law. No invasion of complainant's freehold. The wharf is to subserve a public object, and the company is to subserve the accomplishment of a public end. They would be amenable as common carriers, if they capriciously refused to accommodate the public.

Looking to the injunction as merely an intermediate step, the court will not sustain it, as the bill looks to no ulterior measures, but assumes that chancery would give full relief, which is [**51]  palpably wrong. If the charter is not void, the bill must be dismissed.

The termini of the road being fixed, the company are to adopt all intermediate acts, though not expressly authorized, and for injury to these, the redress is at common law. So is the case of the circuit court of Pennsylvania cited in the argument.

Has any right been invaded? Doctrines are assumed here, which go far to divide the sovereignty of the state with the riparian proprietors of the river, because the exercise of sovereign right may interfere with the private proprietor. The right of several fishery, of free fishery, depending on prescription, is made to ride over all public powers, exercised against its interest. They must catch their fish, no matter who is affected. The paramount right of navigation is denied by them. The right of fishing for trade or subsistence is not a right of property.

The waters of public rivers belong to the state. The right of fishing is not an interest in the waters. It is a privilege to catch where you may. The prescription does not alter the character of the right. It merely excludes other persons, but the state has not parted with the soil. Let them go on with [**52]  accretions of power, the lords of the Susquehanna would take the whole power of the state on the doctrines of a several fishery. The grossness of these results shows the absurdity of the doctrine. Upon his next bill complainant will include one-half of the river, because for twenty years he has had the right to fish. Several or common, it is but a fishing in a navigable river, which is a common right. The lapse of time does not change the character of the right, as regards the rights of the state, both classes are in like condition. Even in private streams the right of navigation exists separate from that of fishery. Ex parte Jennings, 6 Cowen, 528. Hooker vs. Cummings, 20 John. 90. The riparian owner cannot disturb navigation. But this is a public river, whose waters are under the public care for public purposes. In England, the king cannot appropriate public streams to the interference of navigation, but the riparian proprietors may build wharves to benefit it. In 5 Har. and John. 195, all the judges concur with regard to public streams, and the state has no right to grant a monopoly of fishing on a public stream.

The cases cited in argument were of prescriptions between individuals,  [**53]  now set up as against the public. There is no authority to warrant that. Prescription does not apply to the state.

The right of navigation is more than the right of passing on a public river. Angell on Tide Water, 132.  

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

OPINIONBY:
SPENCE 

OPINION:

 [*509]  SPENCE, Judge, delivered the opinion of the court.
The complainant in his bill charges, that heretofore John Stump, the father of this complainant, being seized in fee under grant by patent from the state of Maryland, of a tract of land called Perry Point, situate in Cecil county, at the mouth of the Susquehanna river, established upwards of twenty years since certain fisheries on said property, and at which by means of seines hauled over certain portions of said river, large quantities of shad and herring were annually taken.
That afterwards the said John Stump departed this life, having by his last will and testament executed in form and manner, sufficient to pass real estate, devised said estate, with all and singular its rights and advantages of fishery to your orator, under which said devise he entered,  [**54]  &c.
That on the second day of March, 1811, the said John Stump leased and demised to one Martha Coffield, of Cecil county, for the term of ninety-nine years, with covenants for the renewal thereof, eight acres of said estate, binding on the said public road, leading from the Susquehanna river to Chestertown, and along said river, &c.
The bill also charges the river Susquehanna to be a public navigable river, and that the erecting this wharf, and the employment of steamboats, will be destructive of the paramount 

 [*510]  interest of general navigation and fishing, and that any obstruction of those rights would be void.
In this cause it is the object of the complainant to establish his right to a several fishery, and he alleges, that the uninterrupted use and enjoyment of the same for more than twenty years, is sufficient in law to raise the presumption of a grant of a several fishery. There is not to be found in the bill any allegation of an exclusive possession and use of this fishery, by the complainant, and those under whom he claims, nor is it averred, that others did not use and enjoy this right of fishing in the locus in quo, in common with this [**55]  complainant. The bill charges this to be a public navigable river, where this several fishery is attempted to be established by presumption, and upon these allegations this court is called upon to decide, that a grant is to be presumed of an exclusive fishery.
We know of no principle of law, and we have seen no adjudicated case, which sanctions such a conclusion. That a presumption can be raised of a grant of a several fishery in a public navigable river, from the fact of an individual using the same in common with others, is at this day a strange doctrine: and the bill in this case does not allege, that the complainant, and those under whom he claims, had an exclusive possession: and it is the uniform language of the courts, that they will not presume a grant of land under navigable waters, to the owners of the adjacent soil, without evidence of long exclusive possession and use, to warrant such presumption.  Palmer vs. Hicks, 6 John. 133. If it be law, that a court will not presume a grant of a several fishery in a public navigable river, without proof of long exclusive possession and use, it follows as an irresistible conclusion, that the omission to make such [**56]  averment is fatal to this bill.
The allegation in the bill, that the erecting the wharf, and the employment of steamboats, will be destructive of the paramount interests of general navigation and fishing; and any grant destructive of those rights, though void, furnishes no ground for injunction; but it, the remedy by injunction, is applicable only to special injuries, in violation of private 

 [*511]  right; and individuals are not authorized to redress public grievances at their own suit, either at law or in equity.
In the above decision we do not desire to be considered as expressing the opinion, that if there had been an averment of an exclusive fishery from long adverse enjoyment, that by the laws of this state, a legislative grant might or might not be presumed; but leave that question open for future decision when it shall arise.
INJUNCTION DISSOLVED.  

46 of 47 DOCUMENTS 

THE FARMERS AND MECHANICS' BANK OF GEORGETOWN vs. THE PLANTERS' BANK OF PRINCE GEORGE'S COUNTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 422; 1839 Md. LEXIS 17 

December, 1839, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Prince George's County Court.

This was an action of assumpsit, brought upon the 15th November 1834, by the appellants against the appellees. It had been before this court at June term 1837, and will be found reported in 8th Gill & Johnson, 449.

The plaintiffs declared upon an indebtedness for sundry matters and things properly chargeable in account; money paid, laid out and expended, lent and advanced, and upon an accounting together; and the parties filed the following agreement, for the purpose of making up the issues in the cause, viz:

To the several counts of the plaintiff's nar, the defendant pleads,--1st. Non assumpsit. 2nd. Non assumpsit infra tres annos,--and 3rd. Actio non accrevit infra tres annos. To the two last pleas as applied to the first count of the plaintiff's declaration, the plaintiff replies, the saving in the statute of limitations of accounts, concerning the trade or merchandize between merchant and merchant, their factors and servants, which are not residents within this province.

To this replication the defendant rejoins, 1st. That the plaintiff and defendant were not merchants within the meaning of the said statute; and 2nd.  [**2]  That the dealings between the said parties do not concern the trade or merchandize between merchant and merchant, within the meaning of the statute. And the plaintiff files the general surrejoinder and issue thereon.

To the defendant's second and third pleas as applied to the second and third counts of the plaintiff's nar, the plaintiff enters the general replication and thereupon issue.

To the defendant's first plea, the general replication and issue. Pleadings admitted in short, and errors of form waived, and leave given to amend.

In this case it is agreed, that all errors in pleading on both sides be released. The plaintiffs then in support of the issues joined on their part, proved to the jury, that a law passed the Congress of the United States, which it is agreed may be read from the printed statute book, incorporating the plaintiffs as a banking institution in the District of Columbia, and which is now in force by continuing laws--That the defendants during the period hereinafter referred to, were a banking institution in the State of Maryland, doing business as such under a law of Maryland, which it is also agreed may be read from the printed statute book--that [**3]  from the year 1821 to 1829, there were dealings between the parties in their capacity of banks, consisting of mutual remittances by each, of checks, notes and drafts sent for collection, the proceeds of which, when paid, were to be placed in their respective books to the credit of the party sending, as current deposites. It was then proved, that in the usual case of deposites made by private individuals, they were payable only at the counter of the bank, and that such was considered the right of banks receiving notes, drafts and checks from other banks for collection, it being the right of the bank holding the funds of the other, to pay them only at her counter, but that the practice of banks reciprocally receiving and remitting drafts, &c., for collection, was not the same as that which generally governed, in the case of private depositors and banks, because between the latter it was not usual to have mutual accounts, but that in the case of banks so dealing together, balances accruing the one way or the other, were generally paid by voluntary remittances from the debtor bank to the creditor bank, or remittances made upon request of the creditor bank, when such course was found convenient [**4]  to the bank holding the deposites. And it was further proved, that in the case of the plaintiffs and defendants, and in the course of their aforesaid dealings, no demand had ever been made by either at the counter of the other, although the defendants had in numerous instances drawn checks on the plaintiffs for balances due them, and the plaintiffs in some few instances had drawn checks on the defendants, which checks on either side, were presented by the party holding them, at the counter of the bank on which they were drawn, and were there paid. And it was further proved, that in the dealings between banks, the right to pay elsewhere than at the counter of the bank was never claimed as a matter of right. It was further proved, that in the case of private depositors and banks, the latter sometimes, at the request of the depositor, made payments elsewhere than at their counter. The defendants then proved, that in August, 1829, all dealings between the parties terminated, and that from that time to the present, there has been no acknowledgment of indebtedness by the defendants to the plaintiffs; that on the 10th of August 1829, the defendants suspended specie payments, and discontinued [**5]  banking operations, except so far as was necessary for the winding up of their old business; that on the said 10th August, 1829, the defendants adopted the following preamble and resolutions, announcing the fact of such suspension to the public.

"Whereas, the very general prevalence of reports injurious to the credit of this institution, have produced such an effect upon its circulation, and such an incessant demand for specie, that in the opinion of the board it has become necessary, at least for a period, to suspend the redemption of its paper. In adopting this course, the board of directors consider it their duty to assure the creditors of the institution, that the funds of the bank are in their opinion abundantly sufficient to discharge all its obligations as soon as the same can be made available, and they also are justified in the belief, that the period when this can be effected is not far distant; the board likewise make known to the stockholders that, as far as they can at this time determine the situation of the bank, they entertain a decided conviction that there will not be ultimately a considerable loss; indeed they are persuaded there will be none, because it is [**6]  not believed that the amount of bad debts will more than equal the surplus profits; therefore, whilst they earnestly advise the bill holders and depositors to submit to no sacrifice, they feel themselves perfectly warranted in holding out to the stockholders the prospect of full indemnity. It is in contemplation to appoint a committee to investigate carefully the affairs of the bank, and when the same shall be completed, a full exposition of its affairs will be laid before the public; Therefore, resolved, that until further notice, the paper of the Planters' Bank of Prince George's County will not be redeemed, and that the president cause this preamble and resolution to be communicated to the public, by inserting a copy in one or more newspapers in the District of Columbia and the cities of Baltimore and Annapolis, and putting the same at the door of the banking house."

And that in said month of August, 1829, the said preamble and resolutions were known to the president and cashier of the plaintiffs, and that the National Intelligencer, a public journal printed in the District of Columbia, in which the same were published in said month of August, 1829, was at that time taken by [**7]  the plaintiffs. It was further proved on the part of the plaintiffs, that the balance due from the defendants to the plaintiffs in said month of August, 1829, resulting from the aforesaid dealings, was, according to the proof offered by the plaintiffs, the sum of     dollars, and there was no evidence that the same has been paid, though no debt of any amount appeared upon the books of the defendants to be due to the plaintiffs. And thereupon the defendants prayed the court to instruct the jury, that upon the preceding evidence, if believed by the jury, the plea of the statute of limitations is a bar to the plaintiff's right to recover in this action upon the second and third counts of the plaintiff's declaration; and that the verdict upon the issues joined upon the pleas to these counts, must be for the defendants,--which instructions the court (STEPHEN, J., DORSEY and KEY, A. J.) gave, and the plaintiffs excepted.

2nd. After the preceding evidence had gone to the jury, and which is by agreement made a part of this bill of exceptions, the plaintiffs offered to read in evidence to the jury the following official letter of the defendants, addressed and sent on or about its date [**8]  to the Union Bank of Georgetown, but never communicated to the plaintiffs until after the institution of this suit, for the purpose of explaining the aforegoing preamble and resolution, and of showing that it was the intention of the defendants, in the preamble and resolution, to limit its suspension of specie payments to the holders of its paper, and not to extend the same to its depositors.

Planters' Bank of Prince George's County, August 25th, 1829.

Dear Sir,--Your two letters of the 22nd were received by the mail yesterday, and one enclosing a copy of your account, showing a balance in your favor of $ 792.02. The only note for collection deposited by you, and not over due is Sasscer's, due 7-10 September, and this you had better direct to be returned to you, for he may insist upon paying it in the paper of this bank, which I am not prepared to say he would not have a right to do. Ray's draft on J. A. Magruder is not paid. Our board has come to a determination to make no distinction between depositors or bill holders under any circumstances. The paper which you hold I would advise you to deposite, and take a certificate for it. Your account shall be examined and adjusted [**9]  as speedily as possible. At present we are very much engaged.

In haste, dear sir, yours, very respectfully,

J. R. MAGRUDER, Prest.

And further offered to prove for the same purpose, that in the practice and usages of banks, discriminations as to the mode of payment between depositors and holders of bank paper, are sometimes recognized and admitted; but the court refused to admit such evidence to go to the jury for the purpose aforesaid; to which refusal the plaintiffs excepted.

3rd Exception. After the evidence offered or proposed to be offered by the plaintiffs and defendants, as contained in the preceding bills of exceptions, which it is agreed shall be incorporated in the present bill of exceptions, the plaintiffs further offered in evidence the charters of the plaintiffs and defendants (agreed to be read in evidence as provided in the former bills of exceptions) and further proved to the jury, that the plaintiffs and defendants had exercised all the powers conferred on them by said charters, from the dates thereof until the 10th of August 1829, when the defendants suspended specie payments and discontinued banking operations, as stated in the preceding bills [**10]  of exceptions, and that the mutual remittances of the plaintiffs and defendants consisted of notes and checks and drafts, sometimes drawn on the party to whom the remittances were made, and sometimes on other parties, and that the debits in the accounts of each party consisted in part of drafts on such party, drawn by the other party and passed to third persons, and that from said mutual dealings and accounts, there results a balance due the plaintiffs on the 10th of August 1829, and yet unpaid, of $ 2,308.69. And thereupon the plaintiffs prayed the court to instruct the jury, that if they believe the evidence aforesaid, then the plea of the statute of limitations is not a bar to the recovery of the plaintiffs on the first count of its declaration,--which instruction the court refused to give; to which refusal the plaintiffs excepted.

The jury found a verdict for the defendants, and the plaintiffs below brought this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The exception in the 2nd sec. of the act of 1715, ch. 23, exempting from the operation of the act of limitations, such accounts as concerns the trade or merchandize between merchant and merchant, their factors and servants, does not apply to transactions between banking institutions.

A notification by a bank to a depositor, that his claim will not be paid on demand at the counter, dispenses with the necessity of a demand, as preliminary to the right to sue, and from that time the act of limitations begins to run.  

COUNSEL:
C. Cox for the appellants.

This cause has heretofore been before the court at June term 1837, on the appeal of the present appellee, the defendant below. On that occasion, the judgment below was reversed, and the cause was remanded [**11]  under a procedendo.

The case presented is that of mutual dealings, in the usual course of banking, between the present appellant, a foreign banking corporation, and the appellee, a domestic corporation, during several years, extending down to some time in the year 1829, and resulting in a balance in favor of the appellant of several thousand dollars. The action of the appellant was brought in the year 1834, and the appellee insists, by several pleas, on the statute of limitations as a defence. To these pleas, so far as made to the first count of the appellant's nar, there is a replication of the saving in the statute in favor of such accounts as concern merchant and merchant, who are not residents, and issue is joined thereon: as to the other counts, issues are taken on the pleas.

The first and second exceptions presented by the record are on these latter issues, and may be considered together. According to the ruling of this court on the former appeal, the present appellant's case was defective in not showing the general usage and understanding of banks--that current deposites are only payable of right, in the absence of special stipulations to the contrary, at the counter [**12]  of the depository. That defect, it will be seen, has been fully supplied in the present record. And a case is made out under the ruling of this court, entitling the appellant to recover, unless the appellee can discharge itself by showing a legal demand made by appellant, and a refusal by the appellee, to pay, more than three years before the institution of this suit, or circumstances dispensing with such demand. And this court having ruled that notice to the appellant, by the appellee, that payment would not be made on demand, is a circumstance dispensing with such demand,--the appellee successfully insisted in the court below, on the second trial had there, on a certain preamble and resolution of appellee of August 10th, 1829, admitted to have been communicated about the time of their date to the president and cashier of the appellant, as conclusive of such notice. This forms the ground of the appellant's first exception.

It will be seen by the preamble and resolution which are incorporated in the record, that the pressure upon the appellee at the time was exclusively from its note or bill holders, and that these alone are covered by the terms of the resolution. No pressure [**13]  from depositors is intimated, and it is clear that their case was excluded either purposely, or through inadvertence, as not being brought to the attention of the board when framing the preamble and resolution; and the former cause might well be supposed, as discriminations in favor of depositors over bill holders are founded on equity and reason.

The appellant, on the opinion of the county court embodied in the first exception, offered evidence furnished by the appellee explanatory of the preamble and resolution, showing that the appellee did not consider them as extending to depositors, and passed a subsequent order, not communicated to the appellant, embracing their case; (see the official letter of the appellee to the Union Bank of Georgetown, of August 25, 1829, set forth in the record;) and also offered parol evidence to show that such discriminations between bill holders and depositors are recognized in the practice of banks. The court refused to admit any of this explanatory evidence, and this forms the ground of the second exception.

The appellee seeks, by a broad construction of the preamble and resolution, extending it beyond its terms or intention, to sustain [**14]  an odious and unconscionable defence against the claim of the appellant. Well established principles require that in such cases the meaning and intention of the appellee be expressed by the clearest terms; that it derive no advantage from its own ambiguity of expression, and that the narrowest construction be given to its language. Applying this test, the appellant relies on the terms of the preamble and resolution, which exclude the case of depositors, as an answer to the pretension of the appellee; and in so far as foreign aid is admissible in the construction of the preamble and resolution, this answer is sustained by the evidence offered of the usage of banks, and by the direct admission of the appellee in the letter of August 25, 1829, referred to. It would surely be to mete a harsh measure of justice to the appellant, to bar its just claim by a broad construction of the act of the appellee in the preamble and resolution, palpably against the meaning and contemplation of this party at the time.

The third bill of exceptions presents to the court the question, whether the appellant is not entitled to the saving in the statute of limitations, 1715, ch. 23, sec. 2, in favor of [**15]  such accounts "as concern the trade or merchandize between merchant and merchant which are not residents within this province." The character of the accounts, within the acknowledged and express powers of the parties, comes within the exception. Richardson and al. vs. Bradshaw and al., 1 Atk. 128. Hankey vs. Jones, Cowp. 746, 751; and so with the characters of the parties, one being a domestic and the other a foreign corporation. Bond and al. vs. Jay, 7 Cranch, 350.

J. JOHNSON and T. G. PRATT for the appellees.

This cause now comes before the court upon the appeal of the plaintiff, (the present appellant.) When before, in this court, it was brought here by the defendant, (the appellee,) and will be found reported in 8 Gill & Johns., 449.

The declaration contains three counts: 1st. For matters and articles properly chargeable in account; 2d. For money paid, laid out and expended, and for money had and received; and 3d. On an insimul computassent. To this declaration the defendant pleaded non assumpsit and limitations, in both forms; and issues were joined upon these pleas.

At the second trial, the pleadings were by agreement amended.

According to this agreement,  [**16]  the defendant pleaded the same pleas to the nar, which remained the same as before, that is: 1st. Non assumpsit; 2d. Non assumpsit infra tres annos; and 3d. Actio non accrevit, &c. To the pleas of limitations as applied to the plaintiff's first count, that is: the count for matters and articles, the plaintiff replied, the savings in favor of merchants' accounts. The defendant rejoined, denying the truth of the plea, and the issue was thereupon joined. To the pleas of limitations, with reference to the plaintiff's second and third counts, that is: the money and insimul computassent counts, the plaintiff took issue; and issue was also joined upon the plea of non assumpsit. The verdict was for the defendant.

Three exceptions were taken at the trial by the plaintiff's counsel, upon which, in his written argument, he makes three questions here.

The first is, that the preamble and resolution of the 10th of August, 1829, offered in evidence by the defendant, applies exclusively to bill or note holders, and not to depositors.

2d. That a letter of the defendant, written to a different party, on the 25th of the same month, and year, was admissible as explanatory of the intention [**17]  of the defendant, in adopting the said preamble and resolution. And,

3d. That conceding both these questions to be against him, he is entitled to a reversal of the judgment; because these two parties are merchants, and the dealings between them concern the trade of merchandize, within the meaning of the act of 1815, chap. 23, sec. 2.

These three questions will be briefly discussed, in the order in which the appellant's counsel has presented them.

The writ in this case was issued on the 15th November, 1834; and the first exception shows, that "all dealings between the parties terminated in August, 1829," from which time, there had been no acknowledgement or promise, in any shape or way, to take the case out of the statute. The claim, therefore, is clearly barred by the statute, unless there is something in the nature of the dealings between the parties, to obviate that effect.

It may be admitted that the judgment in the first trial was reversed, because there was no evidence of the usage that, current deposites in a bank, are only to be paid upon demand at the counter, and that the proceeds of notes and drafts deposited by one bank in another for collection, are [**18]  payable in the same way.

The appellant supposes he has now supplied that proof, and that therefore, his case is clear of that difficulty. It may be well doubted whether he has yet succeeded in establishing such an usage in regard to the dealings of bank with bank. The proof certainly shows, that with respect to deposites made by individuals with banks, payment is only to be made at the counter: but it also shows, as a part of the plaintiff's own proof, that "the practice of banks, reciprocally receiving and remitting drafts, &c. for collection, was not the same as that which generally prevailed in the case of private depositors and banks."

"That in the case of banks so dealing together, balances accruing the one way or the other, were generally paid by voluntary remittances from the debtor bank to the creditor bank, or remittances made upon the request of the creditor bank." &c.

The appellees, therefore, contend that the plaintiff has not shown such a "well known and recognized usage," with regard to the mutual dealings of banks, as is required by the opinion formerly pronounced by this court, to extricate their case from the operation of the statute.

But suppose [**19]  he has done so, the judgment must still be affirmed.

This court in deciding the case before, at page 467 of the book, 8 Gill & Johns., say, that admitting the existence of the usage, limitations would not commence running, unless the payment of the plaintiff's claim had been refused, or some act had been done by the defendants, (a knowledge of which is brought home to the plaintiff) dispensing with the necessity of a demand at the counter of the bank; and that such dispensation is abundantly furnished by the acts of the defendant, of the 10th of August 1829. These acts of the 10th of August 1829, was the suspension of specie payments, and discontinuance of banking operations.

And the court only denied full effect to these acts, because they say the proof of their having been brought home to the plaintiff's knowledge, was not of that conclusive character as would warrant the court in assuming the fact, without the intervention of the jury.

In the present case, however, there is no room for doubt upon this subject, as the exception states that the preamble and resolution announcing the facts to the public, "were known to the president and cashier of the plaintiffs in August [**20]  1839," and published in the District at that time, in a paper taken by the plaintiffs.

The fact of knowledge is thus brought home to the plaintiffs more than five years before suit brought, and this court, having already said, that such fact dispensed with a demand at the counter of the defendant, and exposed the claim to the operation of the statute, one would have thought that the question was no longer an open one.

But the counsel for the appellant insists that, his case is not concluded, because he says, the preamble and resolution, in which the defendants announced their failure, had respect only to the holders of their notes, and not to their depositors.

But is this the fair construction of the papers in question?

The preamble states, that the reports which were in circulation, injurious to the credit of the bank, have produced such an effect upon its circulation, and such demands for specie--of course from both depositors and note holders. It further says, that the funds of the bank, in the opinion of the board, are sufficient to discharge all its obligations as soon as the same can be made available.

The terms, "all its obligations," of course includes [**21]  depositors, and the assurance to them, as well as to the other creditors of the bank, that their claims shall be paid as soon as the funds of the latter can be made available, was giving them distinctly to understand that their claims could not be paid at that time. Was not the declaration that they should be paid thereafter, equivalent to telling them that they could not be paid at that time, and consequently that they need not prefer their demands at the counter of the bank?

There are other terms in this preamble, however, which put this matter at rest. The directors, in speaking of the ultimate ability of the institution to pay its debts, &c., use this language--"Whilst they earnestly advise the bill holders and depositors to submit to no sacrifice," &c.

Now, why urge depositors to submit to no sacrifice, if the bank was in a condition to pay them on demand? Was it not in effect, if not in terms, telling them, you cannot be paid now, and of course, a demand at our counter will be fruitless?

The resolution which follows this preamble is to be construed with reference to it, and when so construed, amounts to an annunciation to all the creditors of the bank, of every [**22]  description, that the latter would not, or could not, at that time pay them.

But this question is res adjudicata, and no longer open for discussion.

Upon recurring to the 2d exception in the former report of this case, at page 454, the court will find that this very preamble and resolution is the evidence, and the only evidence, offered by the defendants, to dispense with the necessity of demand, and refusal to pay the plaintiff's claim, supposing such demand and refusal to be necessary to the defence of limitations. And they will further find, by looking at the 1st exception, page 450, that the plaintiffs at that trial, as in this, claimed as depositors, and not as note holders--And yet the court, in expressing their opinion upon the 2nd exception, say, that this very evidence, the preamble and resolution (if known to the plaintiff) would abundantly dispense with the necessity of a demand and refusal "at the counter of the Planters' Bank."

The proof of both plaintiff and defendant upon the last trial of this cause is precisely what it was upon the first. The court in deciding the first say, that all that was necessary to render the defence of limitations available,  [**23]  was the bringing the proof home to the knowledge of the plaintiffs; and yet the plaintiffs' counsel now says, that that proof applied not to them, but to another class of creditors.

It is confidently submitted that upon this point the judgment will not be reversed.

Before leaving it, however, it may be well to refer to the case of Green vs. Johnson, 3 Gill & John. 394, as an answer to what is said about the harsh character of the defence.

This court in the case referred to, speak of the act of limitations as "a statute of repose," and declare their determination not to fritter it away by judicial refinements and subtle exceptions.

2. The second question relates to the admissibility of the letter of the 25th August, 1829, written by the defendants to the Union Bank of Georgetown, and to certain parol proof offered for the purpose "of explaining the aforegoing preamble and resolution," contained in the first exception, and of showing what was the intention of the defendants in adopting and publishing those papers.

The plaintiff insists that he had a right to offer this evidence for the purpose of explaining the written preamble and resolution in which the defendants [**24]  announced to the public the fact of their suspension.

Now if there be any ambiguity in this preamble and resolution, it is unquestionably a patent, and not a latent one, and the rule is settled beyond all controversy, that parol or extrinsic evidence is not admissible to explain an ambiguity apparent upon the face of the instrument. 2 Stark. Ev. 546, 547. Phillip's Ev. 497.

And this court, in the case of McCreary vs. McCreary, 5 G. & J. 157, adopting the language of 3 Stark. 1017, 1050, say, that though it may be shown by parol that a contract was made, wholly collateral to, and distinct from a written one, such evidence cannot be used to vary the terms of the written instrument.

But independently of this objection, the proof offered can have no influence upon the decision of the cause.

The exception shows that the letter proposed to be read, was not seen by the plaintiffs until after the commencement of this suit. So far, therefore, as the plaintiffs are concerned, the preamble and resolution are to be construed with reference to their own terms alone, and if according to the fair interpretation of these terms, a knowledge of which is brought home to the plaintiffs [**25]  more than five years before suit brought, they were advised that their claim upon the defendants would not be paid if demanded at the counter, they are barred, according to the express decision of this court at the former trial.

But there is a further objection to the admissibility of the proof, which would seem to be insuperable.

The letter and the parol proof were offered together, and for the same purpose, to explain the preamble and resolution. The court was not asked to discriminate, and to let in either the one or the other, but the offer was of both together, and for the same identical purpose. If, therefore, either was inadmissible, the court did right in rejecting both; and the exception was taken to the court's refusal to admit both, and not to their refusal to admit either. Now the parol proof has reference to the practice and usages of banks, and this was offered to show what the Planters' Bank meant by a publication, in which they announce their inability to meet their banking obligations, and a discontinuance of all banking operations. Suppose, however, the letter is admissible, the effect of it is to strengthen our interpretation of the preamble and resolution,  [**26]  and to show that they were intended to embrace both note holders and depositors.

This letter was written on the 25th August, 1829, fifteen days after the adoption of, and publication of the preamble and resolution. The president of the Planters' Bank, in this letter, says, "our board has come to a determination to make no distinction between depositors and bill holders, under any circumstances."

The argument on the other side, is, that this letter is evidence that an order subsequent to that of the 10th of August, 1829, had been passed, and that in this subsequent order, the distinction between note holders and depositors was destroyed.

Is this, however, the fair interpretation of the letter? No order, between the 10th and 25th of August, 1829, is shown; but the letter is said to be evidence of such intermediate order. But is it not the more obvious construction to suppose, that the president's letter, of the 25th August, 1829, referred to the resolution of the 10th of the same month, adopted only fifteen days before? And when he says, the board has come to a determination, &c., he meant, the board, by their resolution of the 10th, came to such determination.

3rd.  [**27]  In the third exception, the plaintiff attempts to bring his case within the saving or exception in the act of 1715, chap. 23, sec. 2. The language of the act is, that all actions upon the case, &c., shall be commenced within three years ensuing the cause of action, "other than such accounts as concern the trade of merchandize between merchant and merchant, their factors and servants, which are not residents within this province."

It has been seen that this question arises upon the plaintiff's replication to defendant's plea to his first count. Upon the pleas to his second and third counts, he takes issue, and the only question upon them was, whether the cause of action accrued within the period of limitations. Green vs. Johnson and ux., 3 Gill & John. 393.

In answer to the defendant's plea of limitations to his first count, (which was for matters and articles properly chargeable in account,) he replies the savings in favor of merchants' accounts.

Our first objection to the plaintiff's right to recover upon this count is, that no evidence was offered in support of it. The evidence, the court will see, relates exclusively to the money counts, to the pleas to which the [**28]  plaintiff took issue.

Not a particle of evidence was offered in support of his count, for matters and articles, (his first count,) and yet, in the third exception, he prayed the court to instruct the jury, that limitations was no bar to his recovery upon that count.

But do the charters of these two banks, and the nature of their dealings, constitute them merchants, and make their accounts concern the trade of merchandize within the exception of the statute? Though the benefit of this exception is now a good deal extended and made to embrace many persons who were not originally supposed to be within it, no case can be found, it is believed, in which it has been applied to the accounts of incorporated banks. The charter of the Planters' Bank is a public law, and in none of its provisions will the court find any authority to deal in merchandize. Act 1817, ch. sec. 94.

It is to be remembered by the court that to bring this case within the exception, it is not only requisite that these two banks should be regarded as merchants within the contemplation of the act of 1715, but their accounts must concern the trade of merchandize, though their charters give them no power to [**29]  deal in merchandize, and the exception expressly shows that their dealings were of a totally different character.

But again; according to the letter of the act of 1715, to bring a case within the exception, both parties must reside out of the State. In the case referred to on the other side of Bond vs. Jay, 7 Cranch, 350, the Supreme Court decided, that it was sufficient if either of them resided out of the State. It is still necessary, however, that one of the parties should be a non-resident; and it is supposed, that as the plaintiff here is a bank in the District, that they are within the saving.

The plaintiff then, rests his claim to an exemption from the statute, upon the ground of his being a non-resident, or being beyond seas.

But as the act of 1818, ch. 216, takes away the savings in favor of persons beyond seas, contained in that of 1715, his case would seem to be barred, even if the other objections to his right of recovery upon this count are overruled.

That it was the policy of the legislature by the law of 1818, to place the foreign and domestic creditor upon the same footing, with regard to the operation of limitations upon their claim, is perfectly [**30]  manifest, and is besides distinctly asserted by this court in the case of Frey vs. Kirk, 4 G. & J. at page 521.

Conceding however, that each and all of these questions are against the appellee, still the judgment will not be reversed.

The dealings between these parties terminated in August 1829, and the writ in this case issued on the 15th of November 1834; the determination of the defendant to suspend payment, and discontinue banking operations, except to wind up their old business, was formed on the 10th of August 1829, and in the same month and year this determination was known to the plaintiffs. This, the court has decided, dispensed with a demand at the counter, (if such demand was ever necessary,) and caused the statute to run from that time. At the time the suit was brought, therefore, upwards of five years had elapsed from the accrual of the cause of action, and the cessation of all dealings between the parties. It is contended, then, that conceding for the sake of the argument, that these two banks are to be regarded as merchants, and their dealings to concern the trade of merchandize, and that the repealing law of 1818 does not apply to the case, still, as no item [**31]  of the account is within the period of limitations, the claim is barred.

Lord Hardwicke, in the case of Welford vs. Liddle, 2 Ves. 400, says, the exception did not mean that the defendant might not plead the statute "in all cases where the account is closed and concluded between the parties, and the dealing and transaction over."

Lord Northington, in a bill for an account of mercantile transactions, permitted the defendant to set up the plea of limitations, observing "that merchants, after six years total discontinuance of dealings, were as much within the statute as other accounts." Martin vs. Heathcote, 2 Eden, 169.

Lord Rosselyn, in Crawford vs. Liddel, in 1796 decided the same thing. And in Barber vs. Barber, 18 Ves. 286, Sir Wm. Grantt, Master of the Rolls, decided, that in an account between merchant and merchant, the statute was a bar, there being no item within the time limited by the statute.

In Coster et al. vs. Murray, 5 John. Ch. R. 522, Chancellor Kent, at page 530 says, he thinks the weight of authority in favor of the application of the statute to open merchants' accounts, when there is no item within the period, and expresses his surprise that the [**32]  question is not considered settled in England. He says in the case before him that, assuming it to be one concerning the trade of merchandize between merchant and merchant, he should think the statute well pleaded.

The Court of Appeals of South Carolina, in the case of Van Rhyn vs. Vincent, 1 McCord C. R. 310, express their approbation of the doctrine of Chancellor Kent, and say, they can see no reason why merchants and factors, after all dealings between them had ceased, should not as well be entitled to the protection of the statute as other persons.

It is submitted, therefore, that the weight of authority, both in this country and in England, is in favor of the efficacy of the plea, even in the case of merchants' accounts, where all dealings have ceased for a longer period than the statute allows.

The act of 1715, ch. 23, in favor of dealings between merchant and merchant, excepts only those actions for which account would lie; the action must be founded on an account. "The case protected by the exception is not every transaction between merchant and merchant, not every account that might exist between them, but it must concern the trade of merchandize." 6 Peters,  [**33]  164. "It is not an exemption attached to the merchant as a personal privilege, but an exemption which is conferred on the business as well as the person by whom that business is carried on." 6 Peters, 164. It must therefore not only be an account between merchant and merchant, but the dealings or the items of the account must be such as concern the trade of merchandize. Now it is confidently insisted (that if the parties in this case are to be considered as merchants,) that the items of claims sought to be recovered in this case do not constitute an account, and that they certainly do not concern the trade of merchandize.

Suppose two merchants were to contract for the rent of a house, the hire of a servant, or the purchase of a farm, such dealings, although between merchant and merchant, would not be protected by the exception in the act, because the subject matter of the dealings would not concern the trade of merchandize.

In the present case, the items which constitute the claim of the plaintiffs below, certainly do not concern the trade of merchandize, and without repudiating the doctrine established by the Supreme Court of the U. S. in the case of Spring & others vs.  [**34]  The Executors of Gray, 6 Peters, 164, cannot be brought within the exceptions of the act of 1715, ch. 23.  

JUDGES:
The cause was submitted on written arguments to BUCHANAN, C. J., ARCHER, DORSEY, CHAMBERS, and SPENCE, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*441]  DORSEY, J., delivered the opinion of the court.
The third exception in this case was designed to raise the question, whether under the exception, in the 2nd section of the act of 1715, chap. 23, as to such accounts as concern the trade of merchandize, between merchant and merchant, their factors and servants, which are not residents of this province, the claim of the appellants was exempted from the operation of that act of limitations. We are clearly of opinion that it was not. It is embraced neither by the letter nor the spirit of the saving in the act of assembly. The interest of banking institutions, as well as public policy require that, liquidation of balances between banks should be regular and frequent, and the intention of the legislature must be unequivocally expressed, before we would ascribe to its enactment, a design to hold out encouragement to the banks to practise, inter se, a different course of conduct.
With the instruction [**35]  given by the county court in the first bill of exceptions we think the appellants have no right to complain. To the public notice given by the appellee of the 10th of August 1829, it appears to us no fair construction can be given, which does not import notice to the depositors, as well as bill holders of the Planters' Bank of Prince George's County, that it had suspended specie payment of its deposites, as well as its notes. A bank suspension upon any other principles, would be an anomaly without a precedent, and it is the necessary implication from the terms of the publication, or why "earnestly advise the bill holders and depositors to submit to 

 [*442]  no sacrifice." The effect of this notification was a sufficient annunciation to the appellants, that their claim would not be paid in specie on a demand at the counter, or by a remittance of equivalent value; they were therefore relieved from the necessity of seeking payment in either mode as preliminary to their right of action, and from the moment their authority to sue at law was complete, the act of limitations began to run.
The refusal of the court to permit the evidence offered by the appellants, in their second [**36]  bill of exceptions, to go to the jury, for the purpose for which it was offered, furnishes no sufficient ground for the reversal of the judgment. The letter produced was not addressed to the appellants, as a modification of the public notice before referred to, and its contents were not communicated to them till after the institution of their suit. It could not therefore have the effect of depriving the appellants of the right to sue, acquired in virtue of the public notice. But had it been addressed to the appellants, and by them received, it had no tendency to establish the fact for which it was offered. Instead of showing that the appellants had no right to sue after the publication of the suspension of the Planters' Bank, it reiterated in more emphatic terms those facts which dispensed with the requisition of a preliminary demand on the part of the appellants. It was testimony, therefore, adverse to their pretensions, and could in no way redound to their benefit; and consequently they have no ground to complain of its rejection. The rejection by the court of the other testimony offered by the appellants, in association with this letter, does not furnish a ground for the reversal [**37]  of the judgment. The object of offering in evidence the letter and proof referred to in the second bill of exceptions, was for the purpose of explaining the preamble and resolution in the first bill of exceptions, "and of shewing that it was the intention of the defendant, in the preamble and resolutions, to limit the suspension of specie payments to the holders of its paper, and not to extend the same to its depositors." The letter and proof were both embraced in the same offer, and were withheld from the jury by the same refusal of the court. The letter was in 

 [*443]  perfect accordance with the obvious meaning of the preamble and resolution, and proves the reverse of that for which it was offered; and had the other proof offered been permitted to go to the jury, it could not possibly have availed the appellants for the purpose for which it was offered. They therefore sustained no injury by the conrt's refusing to permit the evidence to go to the jury.
Concurring with the county court in their decisions as stated in all the bills of exceptions, we affirm their judgment.
JUDGMENT AFFIRMED.  

47 of 47 DOCUMENTS 

FAYETTE GIBSON, et al vs. JAMES McCORMICK, Jr.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 65; 1838 Md. LEXIS 13 

December, 1838, Decided 

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

ON the 19th January, 1824, James McCormick, Junior, filed his bill in the court of Chancery, alleging that Jacob Gibson, late of Talbot county, deceased, being in his life-time seized and possessed of a very large estate, both real and personal, and being indebted unto the president, directors and company of the Farmers' Bank of Maryland, in the sum of $ 13,720, to secure the same on the 25th May, 1813, duly executed to them a mortgage "of all and singular those lands and tenements and premises whereon the said Jacob Gibson then resided, being parts or parcels of several tracts of land, called "Bendon"--"Champonham"--"Todd upon Dorman"--Edmondton"--"Champonham's Addition"--"Fontry"--"Bishop's Fields"--"Long Point," and "Neglect," situate on St. Michael's river, and those lately resurveyed by the said Jacob Gibson, and reduced into one entire tract; and those now called Marengo, according to the metes and bounds and contents expressed in the patent thereof, as per deed of mortgage exhibited with the bill; that it did not appear by any release whether the said mortgage debt has been paid or satisfied; that on the 18th October, 1817, the said Jacob [**2]  Gibson gave his note for $ 2500, payable five months after date, to Samuel Hughes, which came to the complainant by various endorsements set forth in the bill; that on the 29th November, 1817, the said Jacob Gibson made his last will and testament, which was filed with the bill as exhibit No. 3. The bill then alleged that the said Jacob Gibson left at his death the following issue: Edward R. Gibson, a resident of Florida; Fayette Gibson; Ann, the wife of Joseph W. Reynolds; Harriet, the wife of Thomas P. Bennett; Frances, the wife of James Tilton, a resident of Wilmington; and the following grand-children: Clara Tilton, Nehemiah Tilton, and Gibson Tilton, the infant children of Mary Elizabeth, daughter of the testator, wife of James F. Tilton, who died in the life-time of her father, who are also non-residents; that Fayette Gibson and Rebecca Gibson renounced the executorship of the said Jacob's estate, and that letters testamentary have been granted to Edward R. Gibson; that on the 14th May, 1821, the said complainant instituted a suit against the administrator d. b. n. c. t. a. of Jacob Gibson, and recovered judgment for $ 2500, with interest from the 21st March, 1818, and costs,  [**3]  with an agreement that a payment made to complainant by the said Edward R. Gibson, on the 18th December, 1818, of $ 600, should be allowed, and that the said judgment should not subject the defendant to the payment of any larger sum than the plaintiff's legal dividend of assets, according to the due course of administration; that on the 29th April, 1823, the said Edward R. Gibson settled his account with the orphans court of Talbot county, by which it appears that the whole of the personal estate of the said testator has been exhausted. And the said bill further alleged, that after the death of the said testator, Jacob Gibson, and after the crops of 1819 were finished as was provided for in his will, his devisees of full age, and the minors by their guardians, entered upon and took possession of the several tracts of land to them respectively devised, but without making any further provision for the debts of the testator; that Edward R. Gibson, by deed bearing date on the 14th day of September, 1818, mortgaged to James Tilton and Rigby Hopkins, his securities on his testamentary bond, all those parts of a tract or parcel of land called "Marengo," which had been devised to him; and [**4]  by deed bearing date 1st January, 1822, conveyed the same to Fayette Gibson; and the said Fayette Gibson, by deed of 2d January, 1822, mortgaged the same to the said Edward R. Gibson, to secure the payment of the purchase money thereof, as per exhibits Nos. 6, 7, 8; and that the said Fayette Gibson, by deed of 16th May, 1821, conveyed to John Wilson Blake, all and singular the following tracts of land: "Batchelor's Branch"--"Batchelor's Branch Addition"--"Thief Keep Out"--"Bennett's Neglect"--"Bennett's Neglect Resurveyed"--part of "Triangle," and so much of "Hall's Range" next adjoining thereto, as would make up the quantity of 100 acres of land, which have been devised to him by the said Jacob Gibson; and that said Blake, on the 18th May, 1821, mortgaged the said lands to Fayette Gibson, to secure the payment of the purchase money.

And the said bill further alleged, that the said Fayette Gibson, on the 24th October, 1821, conveyed to Colonel Edward Lloyd, all that part of "Marengo," which had been devised to him by his father. Said deeds were exhibited and numbered 9, 10, 11; that the lands devised by the said Jacob Gibson, to his children, grand-children and niece, Nancy Gibson,  [**5]  are of much greater value than the amount of complainant's debt; that he has applied to the devisees for payment; that his debt is chargeable upon the testator's real estate, "for as much as his personal estate is insufficient for the payment of his debts," and that the said devisees refuse to come to any account with him, or to pay him. Prayed that Edward R. Gibson, Fayette Gibson, Joseph W. Reynolds and Ann his wife, Thomas P. Bennett and Harriet his wife, James Tilton and Frances his wife, Clara Tilton, Nehemiah Tilton, and Nancy Gibson, may be compelled to pay complainant in such proportions as to the chancellor shall seem just; and in default thereof, that the real estate of which the testator died seized, or so much thereof as may be necessary for that purpose, may be sold for the payment thereof; for other and farther relief, generally, and for subpoenas against Fayette, Thomas P. Bennett and wife, Nancy and Rebecca Gibson, Rigby Hopkins, John W. Blake, Edward Lloyd, Joseph W. Reynolds and Ann his wife, and the President and Directors of the Farmers' Bank of Maryland, and for an order of publication against Edward R. Gibson, James Tilton and Frances his wife, Clara and Nehemiah [**6]  Tilton non-residents.

Exhibit No. 1, filed with the bill, was the mortgage of 25th May, 1813, from Jacob Gibson to the Farmers' Bank of Maryland, to secure the payment of $ 13,720, with interest, on or before the 25th July, 1813, and all and every other or further sum which shall become justly due and owing from him to them at any time after the execution of the said mortgage, and before the expiration of six months from the date limited for payment thereof. This deed was acknowledged and recorded, but contained no relinquishment of dower from the wife of the grantor.

Exhibit No. 3, was the will of Jacob Gibson, by which he devised to Edward R. Gibson, and the heirs of his body for ever, so much of "my dwelling plantation as will be found to the southward or south-westward of five lines drawn as follows, &c.

I give to my son Fayette Gibson, and to the heirs of his body for ever, so much of the tract of land called Marengo, as will be found eastwardly and southwardly of the following lines, &c. Also, all that tract of land which I purchased of Samuel Hughes and Daniel Hughes, containing, &c. including 28 acres of Bennett's Kind Caution, which runs into the same.

I [**7]  also give to my son, Fayette Gibson, all the woodland outside of my farthest gate, and northwardly and eastwardly of the public road, known by the name of School House Lot and Garey's Beginning.

I give and devise unto my daughter, Frances Gibson, the residue of Marengo, beginning, &c. in fee.

I give unto my daughter, Ann Reynolds, and to the heirs of her body for ever, in addition to what she has already received from me, Sharp's Island, together with all the property thereon. But if my son, Edward R. Gibson, chooses, he may take the said Island and property thereon, by paying to his sister, &c. the sum of $ 10,000, in five annual equal instalments, with interest on the same till paid."

The testator then bequeathed to Joseph W. Reynolds, to make up a sum of $ 15,000, a further sum of $ 1750, in case there should be a surplus after payment of debts, in the hands of his executors, and also, &c.

To Harriet Bennett, wife of Thomas P. Bennett, the testator devised the farm called Peach Blossom.

To his grand children, Clara Tilton and Nehemiah Tilton, the testator devised the tan-yard farm; and also all that land purchased of Samuel Y. Garey, which he had not sold.  [**8]  

To his wife, Rebecca Gibson, the testator devised, "for and during the time she may remain my widow, and no longer, the use, occupation and enjoyment of one moiety or half part of my dwelling-house, or one-half part of the dwelling-house bequeathed to his son Fayette, which he purchased of the Hughes's; and also one-half of the kitchen garden and out-houses belonging to either of the aforesaid farms, which she may choose at any time to live at during her widowhood."

And the said testator declared also as follows:

"I do hereby direct my son, Edward R. Gibson, and my son, Fayette Gibson, their heirs and assigns, to furnish their mother with sufficient fire-wood off the said lands bequeathed to them, so long as she may remain in either of the houses aforesaid, which wood is to be cut and delivered to her at the door, prepared for her use as fuel generally is." The will then devised to his wife during her natural life and no longer, certain slaves, household furniture, and horses and cows, "and the privilege of pasturage for them, with the use of the stable and provender, on the plantation she may choose from time to time to reside on."

The testator then devised to [**9]  Fayette Gibson and Frances Gibson, certain household furniture; and he then devised to his wife, Rebecca Gibson, an annuity during her widowhood, of $ 500, payable by his two sons, Edward R. Gibson and Fayette Gibson, to be reduced one-half in case of her second marriage; and then devised as follows: By this my will, I do hereby declare, that the foregoing bequest and devise to my wife is in lieu of and full satisfaction for her dower in my lands and real estate, and her thirds of my personal estate, and remainder of my real and personal estate not herein before disposed of.

The testator then directed the plantation purchased of Thomas Stevens, sheriff, to be conveyed to Jennet Gibson, wife of Edward R. Gibson, as soon as he or she shall pay $ 1000 towards his personal estate, and certain lands in Allegany county, and in Tuckahoe, and a house and lot in Easton, in the occupation of Thomas P. Bennett, were ordered to be sold for payment of his debts, and distributed his negroes between Edward R. Gibson, Fayette Gibson, Frances Gibson, Harriet Bennett, and Ann Reynolds, and also devised the surplus of his estate after payment of debts, devises and legacies, to the last named parties,  [**10]  except Mrs. Ann Reynolds.

The testator then declared as follows:

"I hereby appropriate and direct to be applied towards the payment of my debts, all debts due me, together with all the crops secured and growing on the "Marengo," the Wye or tan-yard and Sharp's Island farms; and also the crops to be made and secured on the said three farms, for and during the year 1818. Should this appropriation not be sufficient, I also appropriate the crops for the next year, to be made on said farms, to be applied to the same purpose. My son, Edward R. Gibson, is to support the family during the making and securing of the aforesaid crops, and carry on the several establishments as I have done, and receive as a compensation therefor, six per centum on the amount of the crop or crops appropriated--the said family and establishment to be supported at the same time, out of the proceeds of said crop or crops."

The testator then appointed Rebecca and Edward R. Gibson, and Thomas P. Bennett, executors. This will was executed on the 29th November, 1817.

By a codicil of the same date, the devisees of the parts of Marengo, were prohibited from selling the same except to each other or their [**11]  sisters, that is to say, Edward R. could only sell to Fayette, and Fayette could only sell his part to those of his two sisters who should reside on the same; and sixty acres of land purchased of Samuel T. Garey, or its proceeds, were further appropriated to payment of debts.

By a second codicil, the estate to Clara Tilton, upon her death without heirs, was to revert to her brother, Nehemiah Tilton, and the testator's land in Allegany, in Tuckahoe, and the house and lot in Easton, were devised to Edward R. Gibson, in trust for his grand-niece, Nancy Gibson, and Fayette Gibson was nominated executor in the place of Thomas P. Bennett.

On the 13th January, 1818, Rebecca Gibson, the widow, certified to the register of wills, her approval of, and intention to stand by the will, and authorized him to take probate thereof, which was done. Rebecca and Fayette Gibson refused to act as executors.

Exhibit No. 4. Record of the proceeding at law, James McCormick, Jr. against Edward R. Gibson, executor of Jacob Gibson. Judgment confessed 28th May, 1822, for $ 2500, with interest from 21st March, 1818, and costs, to bind assets in a due course of administration.

Exhibit No. 5.  [**12]  Account of the executor, E. R. Gibson, passed 29th April, 1823, showing payments to a variety of creditors on account and in part of their claims, and an over-payment by the executor of $ 1828 37.

Exhibit No. 6. Deed of 14th September, 1818, Edward R. Gibson to James Tilton, Jr. and Rigby Hopkins, mortgage of the estate devised to E. R. Gibson, to indemnify them as sureties of said Gibson, as executor of his father's estate.

Exhibit No. 7. Deed of 1st January, 1822, Edward R. to Fayette Gibson, in consideration of $ 22,342, for all that part of Marengo devised by Jacob to E. R. Gibson, with a covenant that he conveys a good and indefeasible title in fee.

Exhibit No. 8. Fayette to E. R. Gibson, deed of mortgage of 2d January, 1822, to secure payment of $ 9000, in three equal annual instalments, with interest.

Exhibit No. 9. Fayette Gibson to John Wilson Blake, deed of 16th May, 1821, in consideration of $ 10,500 conveying the following tracts of land: "Batchelor's Branch"--"Batchelor's Branch Addition"--"Thief Keep Out"--"Bennett's Neglect"--"Bennett's Neglect Resurveyed"--part of "Triangle"--part of "Hall's Range," adjoining, to make up 400 acres in fee, devised [**13]  to Fayette Gibson by his father Jacob. Also, the tracts called "Partnership" and "Springfield," covenant against the claims of the said Fayette, and those claiming under him.

Exhibit No. 10. John Wilson Blake to Fayette Gibson, 18th May, 1821, deed of mortgage of lands above conveyed to secure purchase money of deed No. 9.

Exhibit No. 11. Fayette Gibson to Col. Edward Lloyd, deed of 24th October, 1821, in consideration of $ 7025, for all that part of a tract called "Marengo," situate on and included in, &c. beginning at, &c. "it being the place described in the last will and testament of Jacob Gibson, deceased, and running thence, &c. containing 222 1/2 acres. Also, all that other part of Marengo, &c. containing 60 1/2 acres, with a general warranty of the title in fee."

On the 18th January, 1824, the Chancellor passed an order of publication against the non-resident defendants, Edward R. Gibson, James Tilton and Frances his wife, and Clara and Nehemiah Tilton, to answer the bill on or before the 20th May, 1824. Edward Lloyd, John W. Blake, the Farmers' Bank of Maryland, and Thomas P. Bennett and Wife, appeared at the return of the subpoenas at March term, 1824.

Proof [**14]  of the publication of the Chancellor's order of 18th January, was also filed:

At July term, 1824, Edward Lloyd filed his answer, admitting the mortgage of Jacob Gibson to the Farmers' Bank; his death and last will as filed; that he purchased from Fayette Gibson a part of Marengo, mortgaged and devised as aforesaid, and for which he obtained a deed on the 24th October, 1821; that the sale to him was fair and bona fide, "and as the said land had been mortgaged by the aforesaid Jacob Gibson as aforesaid, this defendant, on paying or securing to be paid to the Farmers' Bank of Maryland the sum of $ 3161 53, obtained from them an instrument of writing in the nature of a release as to his said part of "Marengo," which release was exhibited with his said answer as a part thereof; that the whole amount of the purchase money of his part of Marengo, has been applied to the payment of debts due from the estate of Jacob Gibson, to wit, $ 3161 to said Bank, and $ 2579 29 had been paid or secured to a certain Thomas Hayward, who had a judgment and execution against the estate of the said Jacob Gibson, and the balance applied to a debt due said defendant from the said estate; that he was a fair [**15]  and bona fide purchaser for value, without notice of complainant's claim; that he did not know at the time of his purchase, that the personal estate of the said Jacob Gibson would be insufficient to pay his debts; and that his land is not liable to pay complainant's claim.

The agreement between Edward Lloyd and Farmers' Bank, was dated 21st November, 1821, and recited, the said Edward Lloyd hath lately purchased of Fayette Gibson, that part of a tract of land called "Marengo," which Jacob Gibson devised to his son Fayette, and hath caused a certain portion of the purchase money, to wit, the sum of $ 3161 53, to be applied to the credit of a judgment obtained by the said Bank against the said Fayette Gibson; and whereas the said tract called Marengo, was heretofore mortgaged by the said Jacob, &c. on which there is yet remaining due a principal of $ 6050, with interest from 18th January, 1818; and whereas the residue of the said tract of land called "Marengo," over and above the part so sold by the said Fayette Gibson, to the said Edward Lloyd, is in the opinion of the said President and Directors, very amply sufficient to cover the balance of the mortgage money so remaining due [**16]  to the Bank by the representatives of the said Jacob Gibson, the said President and Directors, at the instance of the said Edward Lloyd, and in consideration of the premises, agree that if any inattention or unreasonable delay on the part of the representatives of the said Jacob Gibson, in paying the balance of the said mortgage money, should make it necessary for the said Bank to resort to a sale of the mortgaged premises, they will not disturb or dispose of that parcel of the said tract which the said Edward Lloyd has so purchased of the said Fayette Gibson, but will resort to and cause to be sold the residue of the said tract only, or so much of the said residue as shall be sufficient to satisfy the balance of the said mortgage money, interest and costs--and after payment of the claim, &c. they will, on his request, cause a release of his land to be executed to him; and the execution of this paper was admitted by the complainant and the Bank.

At September term, 1824, the Farmers' Bank filed their answer; she claimed a debt under his mortgage at the time of Jacob Gibson's death, of $ 6050, with interest from 21st January, 1818, and prayed a sale of the land to satisfy it; the [**17]  answer also admitted the complainant's claim.

With the answer of the Bank, was also filed a note of Jacob Gibson's, dated 19th November, 1817, for $ 6050, payable sixty days after date to said Bank, to which was appended a declaration of said Gibson, that his mortgage was a security for its payment, with the usual probate that the debt was unpaid.

At the same term, James Tilton filed his answer, admitting the mortgage to the Bank, and referring to it for its object and provisions; alleging he had no particular knowledge of the note on which complainant's claim was founded, but if the same exists, pleads the act of limitations thereto, and relies upon that bar; denies that the assets of Jacob Gibson have been exhausted in a due course of administration, admits the deeds and mortgages referred to in the bill of complaint.

At March term, 1824, Thomas P. Bennett and Wife filed their answer, alleging that Jacob Gibson at his death, had but an equitable estate in Peach Blossom, the tract devised to said Harriet Bennett, admitting complainant's claim, mortgage to the Bank, deeds between Edward R. and Fayette Gibson; that they had always hoped and believed that the personal [**18]  estate of the said Edward Gibson, together with the proceeds of the sales of the property by him devised to be sold, and the rents and profits of the real estate as directed by his (Jacob Gibson's) will to be applied to the payment of his debts, would have been amply sufficient to discharge the same, and all expenses of the administration; and the answer then proceeded to detail many circumstances and losses, attending the administration of the estate, to show why that result had not been accomplished.

At July term, 1825, Fayette Gibson filed his answer, admitting the material allegations of the bill; his purchase from and mortgage to Edward R. Gibson; his sale to John Wilson Blake and Col. Edward Lloyd; that the greater part of the purchase due from Blake and Lloyd was applied to payment of his father's debts; that the debts of Jacob Gibson cannot be paid without a sale of his land, or a contribution among his devisees; that he is willing to contribute upon equitable principles.

At the same time John Wilson Blake filed his answer, admitting the complainant's bill, but alleging that upon his purchase from Fayette Gibson, it was alleged that the purchase money should be applied [**19]  towards the payment of the Farmers' Bank debt, until it should be discharged; that he hath paid the sum of $ 5805 56, to the said Bank; that he hath paid Fayette Gibson $ 1651 94, and that he now owes a balance which he is ready to pay; that his contract was fair and bona fide, and as an innocent purchaser he prays to be protected in a court of equity. The mortgage from said Blake to Fayette Gibson, of 18th May, 1821, was exhibited with said bill and certificate of the Bank, of 13th July, 1825, of the payment to her.

At September, 1825, the Chancellor ordered that Rigby Hopkins, being returned attached, should answer the bill on or before 4th December next, otherwise, &c.

At September term, 1826, the complainant entered a general replication to all the answers filed in the cause.

The complainant having proceeded to a return of an attachment with proclamations against the defendants in the bill who had not answered, at this term petitioned the Chancellor, alleging that as to certain defendants the cause was at issue, and as to the others they were in contempt, prayed for a commission to take testimony, naming four commissioners; whereupon the Chancellor, on the 8th November,  [**20]  1826, ordered that a commission should issue, unless the defendants name and strike commissioners on or before the 15th December next.

And at the same term the Chancellor passed an interlocutory order as to Nancy Gibson, Rebecca Gibson, Joseph W. Reynolds and Ann his wife, heretofore returned proclaimed, and as to Edward R. Gibson, Frances Tilton wife of James Tilton, Clara Tilton, Nehemiah Tilton, and Rigby Hopkins, notified by order of publication duly published, declaring the complainant entitled to relief, and awarding a commission to take proof, which was issued, and the complainant's claim was established in proof.

At December, 1827, the Chancellor dismissed the bill on the ground that the plea of limitation interposed by James Tilton, operated in favour of all the defendants, but upon appeal that decree was reversed, and the cause remanded for further proceedings, 13th July, 1831.

On the 22d July, 1831, the complainant issued a second commission to take proof in support of his bill, which was returned on the 23d February, 1832.

On the 3d July, 1832, James Tilton and Frances his wife, petitioned the Court of Chancery, on the ground of the want of knowledge [**21]  of Frances Tilton, of their proceedings, she being a non-resident, for leave to file an answer, which petition the Chancellor dismissed on the 17th August, 1832.

On the 24th August, 1832, the complainant filed his bill of revivor as to the heirs at law of John W. Blake, a deceased defendant, and proceedings were had to make them defendants, &c.

On the 26th June, 1833, similar proceedings were had as to Harriet Bennett, deceased.

On the 17th August, 1833, Clara Tilton filed her petition, suggesting that at the commencement of this suit she was an infant; that she now resides in the state of Indiana with her father; that she never heard of the existence of this suit until lately; that she attained her age the 20th April, 1833; that as soon as she could she employed counsel, and now prays leave to file her answer.

This petition was sworn to before a justice of the peace in Indiana, and certified under the seal of the circuit court of Jefferson county, Indiana, by the deputy clerk thereof.

The answer of Clara Tilton relied on the plea of limitations as to complainant's claim in various forms, and denies that Jacob Gibson did not leave personal property sufficient [**22]  to pay his debts; that her brother, Nehemiah Tilton, is dead.

The Chancellor ordered the answer of Clara Tilton to be received, subject to all just exceptions, and it was accordingly filed.

On the 9th September, 1833, a commission was issued to the Baltimore commissioners.

On the 14th October, 1833, James Tilton and Wife again petitioned the Chancellor for leave to file an answer in this cause, which was dismissed with costs--from which, on the 13th March, 1834, they noted an appeal, as also on the order of the 17th August, 1833.

Several other commissions were issued, and proof taken of the claims of creditors, of the application of the proceeds of the land sold by Fayette Gibson, in part payment of the debt due the Farmers' Bank, and their agreement to look to the residue of the mortgaged property for the satisfaction of the balance due them.

On the 16th September, 1835, the complainant filed another bill of revivor as to Col. Edward Lloyd, now deceased, upon which his devisee, Edward Lloyd, answered and relied on the contract of 21st November, 1821, made between his father and the Bank, and that inasmuch as the purchase money of the land so paid by his father,  [**23]  had been applied to the payment of the debts of Jacob Gibson to a very large amount, that an account of the said Jacob Gibson's estate should be stated, and that a fair and just apportionment of the debts of said estate, among his devisees, heirs at law and personal representatives, so that each may contribute according to law to the payment of said debts, and that the land purchased by his late father may be exempted from sale, for the payment of debts due said Gibson's estate, until it shall appear that the real and personal estate of the said Gibson have been exhausted so far as to place him on a footing with the representatives of the said Jacob, &c.

On the 13th May, 1836, the Chancellor (BLAND) decreed as follows: "The claim of the complainant being established to the satisfaction of the Chancellor, except as against the defendant, James Tilton and Clara Tilton, to the extent of whose interest it is barred by the act of limitations, and it appearing that the personal estate of the said Jacob Gibson, deceased, is not sufficient for the payment of his debts--it is thereupon decreed, that the bill of complaint in this cause be and the same is hereby taken pro confesso against [**24]  the absent defendant, &c. and against, &c.; that the real estate of the said Jacob Gibson, deceased, or so much thereof as may be necessary to be sold for the payment of the mortgage claim of the defendants, the President and Directors of the Farmers' Bank of Maryland, and the claim of the complainant, as stated in the proceedings, and all other debts due from the said Jacob Gibson, deceased; that John Scott be appointed trustee;" and after prescribing the course of procedure in relation to a sale, that he shall "convey to the purchaser of said property, and to his, her or their heirs, the property to him, her or them sold, free, clear and discharged from all claim to the parties in the cause, and of any person or persons claiming by, from or under them," &c. Notice was also ordered to be given to the creditors of the deceased debtor, to file their claims. And it is further adjudged, ordered and decreed, in conformity with the decree of the Court of Appeals aforesaid, that the answer of the defendant, James Tilton, and according to the principles of the same decree, the answer of the defendant, Clara Tilton, be and they are hereby declared to operate as protections to the interests [**25]  of the said defendants in the real estate aforesaid, as against the complainant; and in taking the account of the claim of the complainant, the auditor of this court is directed to treat it as having been paid in proportion to the extent of the interests of the said defendants, James Tilton and Clara Tilton, to which extent they would have been required to contribute towards payment thereof, in respect of the interests acquired by them under the will of the said Jacob Gibson, deceased, if the aforesaid answers had not been filed--and the parties are hereby authorized to take testimony in relation to said proportional deduction from the said plaintiff's claim, &c.

From which decree Fayette Gibson and the other defendants, except James and Clara Tilton, appealed to this court.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

It is not necessary that a creditor's bill under the act of 1785, ch. 72, should provide for the coming in of the other creditors, to participate in the burdens and benefits of the suit. Without such a provision, it may be treated as a creditor's bill, in the decree and other proceedings founded upon it.

Where a mortgagee is made a defendant to a creditor's bill, filed for the sale of the mortgagor's equity of redemption, and other property, and assents to a sale of the mortgaged premises in his answer, the chancellor may decree the sale thereof for the payment of the mortgage debt--and in decreeing such sale, there is no necessity that time should be given the parties entitled to the equity of redemption, for the payment of the debt.

The act of 1782, ch. 72, sec. 3, only requires time to be given, when application to the chancellor to foreclose, is made by mortgagees, or their representatives.

In a bill filed for the sale of the real estate of a deceased debtor, it is sufficient to charge the continued existence of the complainant's debt, and the exhaustion of the debtor's personal estate. And to the passing of a decree for the sale of the real estate in such a case, a preliminary account of the disposition of the personalty by the executors, and of the debts remaining unpaid, need not be taken.

But even if such account would be directed, if the defendants in their answers had asked for it, their omission to do so, precludes them from objecting to the decree upon that ground, in the appellate court.

When a deceased debtor has devised his property to various persons, a decree for its sale for the payment of creditors, would be erroneous, if it directed payment by contribution, upon the share of each. The question of contribution is one with which the complainant has no concern. It is interesting only to the defendants, after the claims of creditors have been definitively adjusted.

When a purchase is made of the devisee of a deceased debtor, the purchaser is bound to take notice of the existence of claims against, and the state of the personal assets of the deceased. He cannot defend his title upon the ground that he had no notice of debts, or the insufficiency of the personal estate to pay them.

Such a purchaser at private sale, from one of the devisees, cannot resist a decree for a sale, upon a bill filed by creditors, upon the ground that the money paid by him was applied to the payment of the claims of particular creditors. The creditors of the deceased have a right to insist, that the property of their debtor shall be offered at public sale, under the proper authority, though such a state of things should have influence with the trustee, in selecting such portions of the estate as it may be necessary to sell.

Upon the principle of substitution, the purchaser whose money has been so applied, or those claiming under him, will be subrogated to the rights of the creditors whose debts he has paid.

The devisees of mortgaged property have a right to call on the executor to redeem the mortgage, to the extent of the excess, where the personal property is more than sufficient for the payment of debts, but they have no such equity, as against the devisees of other portions of the estate.

If a complainant cannot obtain the specific relief for which he prays, he may obtain any relief consistent therewith, warranted by the allegations of his bill, under the prayer for general relief.

When a creditor in his bill charges the existence of, and non-payment of his claim; the exhaustion of the personal estate in the payment of debts, and exhibits an account passed by the orphans court, shewing the name of each creditor, and the amount paid him out of the personal assets, it is in effect the same as if the bill had charged, that the deceased had died indebted to each creditor, nominatim, the amount stated to have been paid them respectively, and that such payment had been made out of the personal assets of the deceased. Upon a bill so framed, and prayer for general relief, the complainant would be entitled to be substituted to the rights of the creditors so paid.

The right of substitution is not a matter of fact, which a party must allege to entitle him to its benefit, but a conclusion of law, or equity, to be drawn by the court from the statement of facts out of which it arises. Nor is it necessary that the bill should state, that the claims mentioned in the account are chargeable upon the real estate, to the extent of the insufficiency of the personalty; such being the inference of law from the act of 1785, ch. 72, unless rebutted by some plea or matter in avoidance.

If the allegations of the bill are admitted, or proved, or a decree passed, pro confesso, the result is the same, as regards the defendants who are sui juris, and a decree passes as of course, for the payment of the complainant's claim out of the real estate; he being substituted as against the realty, to the rights of the creditors whose claims have been satisfied out of his proportion of the personalty.

If a person indebted, devises his real estate to several, and the creditor releases the land of one of the devisees from the payment of its proportion, he cannot recover such proportion from the other devisees. The loss occasioned by such discharge must be borne by the creditor.

When a widow accepts of a devise in lieu of her legal right, she is considered as a purchaser for a fair consideration, and in decreeing a sale of the property for the payment of the testator's debts, it should be ordered to be made subject to the devise to the widow, unless it is shewn that the devise to her exceeds her common law right, and is therefore injurious, and unjust to creditors.  

COUNSEL:
J. JOHNSON, for the appellant.

1. The bill is defective in not making Edward R. Gibson a party as executor, and in not calling upon him to account in that capacity, for the personal estate of the testator. Travis, et al vs. Waters, 1 John. C. R. 85.

2. That upon the death of Edward Lloyd the elder, no further proceedings should have been had in the cause until his son and devisee,  [**26]  Edward Lloyd, was made a party; he being then the owner of a part of that portion of the real estate of Jacob Gibson, covered by the mortgage to the Farmers' Bank, and ordered by the decree to be sold. This point was waived at the argument.

3. That the Chancellor erred in permitting Clara Tilton to file the plea of limitations in the then state of the proceedings. This point was also waived.

4. That before a decree should have been passed for the sale of the real estate of Jacob Gibson, an account should have been taken, ascertaining the amount of unsatisfied claims against him, and the proportion which each of the several devisees was bound to pay. McCormick vs. Gibson, et al, 3 Gill and John. 18. 1 Stor. Eq. 471.

The claim against each is decided to be a distinct claim, and each must respond according to its value. It is the same in principle, as if separate lots had been mortgaged, or sold to several persons--all liable for the same demand. 1 Stor. Eq. 461, 462. Stevens vs. Cooper, 1 John. C. R. 425.

This account is preliminary to a decree for a sale; for if the devisees respectively, are disposed to pay a portion of the debt, they are so entitled, and that experimental [**27]  account should be first stated.

The complainant as to Tilton was paid--yet his was but a life estate. There were payments on account; how could the extent of the liabilities be ascertained before stating the account, ascertaining the amount paid by Clara Tilton and her father.

The trustee could not execute his duty without a previous audit. 1822, ch. 165. Callis and Semmes vs. Ridout, et al, 7 Gill and John. 2.

The mortgagees have not a general lien on Gibson's estate. There is no covenant to pay the debt; no agreement that Gibson's estate may be resold for the unpaid residue. The Bank could only look to the mortgage property for their debt; that made an account the more necessary.

5. That such an account was especially proper and necessary with respect to Fayette Gibson, as the record shows that a large amount of the proceeds of the real estate devised to him, has been actually applied to the payment of the debts of the testator. He has paid $ 13,500, through Blake and Lloyd, of his father's debt. Justice to him demands an account.

6. That from the very frame of the decree, the amount to be contributed by each devisee was an indispensable prerequisite to a [**28]  sale, as by such an account only could the extent of the interests of James Tilton and his daughter Clara, be ascertained, and to which extent the Chancellor directed that the complainant's claim should be treated as paid.

7. That the decree is erroneous in not giving a day for the payment of the mortgage debt to the Bank. The sale was to be one-third for cash. 1785, ch. 72, sec. 3. David, et al vs. Grahame, 2 Har. and Gill, 94. The Bank is made a defendant; in her answer she becomes a complainant; and prays a sale of the mortgaged premises to pay her debt. This is an application to foreclose a mortgage, and only differs in form from the ordinary proceedings to sell. The mortgagors were entitled to a day of payment.

8. The decree is erroneous becanse it does not reserve the rights secured to Mrs. Rebecca Gibson, the widow of Jacob Gibson, in conformity to his will.

A scanty provision was made for the widow. It was the privilege of occupying a dwelling-house in part--an annuity from the sons, and this only during widowhood. This was in lieu of dower, and she stood to the will. The decree does not notice her rights. The whole estate is ordered to be sold, with certain [**29]  exceptions not applicable to the widow.

A widow, as in the present case, is a purchaser for a bona fide consideration, and is entitled to the value of her dower. 1798, ch. 101, sub. ch. 13, sec. 5. Margaret Hall's case, 1 Bland's Rep. 203. Blower vs. Morrett, 2 Ves. Sr. 420. She is preferred to creditors to the value of her dower. She has not been so preferred. The sale is authorized clear of her rights, over-ruling her entire estate--ordering a sale of the whole. If nothing passes to her by the will, the devise does not bar her dower. In that case she is remitted to her dower rights.

9. The agreement between the Bank and Lloyd, by which that part of Marengo purchased by the latter from Fayette Gibson, was released from the operation of the mortgage, has the effect to discharge the debt of the Bank; at least to the extent of the proportion which the property so released, bears to the value of the whole mortgaged premises.

In consideration of the payment of another debt by Lloyd, for which the mortgaged premises was not responsible, the Bank agreed to release a part of the mortgaged property. She releases a portion perhaps more valuable than the debt. It would have paid [**30]  the debt; by discharging a part, to the relative value of that part she is paid. Then as to the residue, the Bank can only recover from it, the relative portion which it should have paid. 1 Stor. Eq. 322, 321, 478, (note.) It may be doubted whether the Bank has not lost her whole debt. 1 Law Lib. 158. The doctrine is not founded on contract, but on natural equity and equality. So if one surety is discharged, and the other surety pays one-half of the debt, the rule of equity is violated if the discharged party has to pay again.

JOHN SCOTT and T. S. ALEXANDER, for McCormick, contended:

1. That the decree of this court, passed on the hearing of the former appeal taken in this cause, is conclusive of the correctness of the Chancellor's decree which is now before the court, so far at least, as the said decree establishes his right to satisfaction of his claim, out of the real estate of his deceased debtor, Jacob Gibson. McCormick vs. Gibson, et al, 3 Gill and John. 13.

2. The former decree established that complainant was entitled to relief. The only question on the Chancellor's decree, is whether right in point of form or not. If other grounds existed showing complainant [**31]  not entitled to relief, this court would have affirmed the decree appealed from. McCormick claimed as a creditor, and he was bound to prove it. When this court asserted the Chancellor was wrong in dismissing the bill, it also asserted the complainant was entitled to relief. When the decree was reversed, this court acts as the Chancellor should have done, and passes such a decree as he should have passed, and places the cause in such a position as will promote such relief as the parties are entitled to. The specific mode of relief is not announced; but you have assumed every fact pleaded and proved, to give complainant a right as a creditor. Objections taken now in this cause, would not induce you to change your former opinion. Nor can the Chancellor be reversed for following this court. If his course arises from the former decree, it is not his error. This court cannot review and reverse their former opinion. Hammond vs. Ridgely's Lessee, 5 Har. and John. 245. A judgment in a particular cause remanded for further proceedings, when returned, the first judgment is conclusive. Clerklee vs. Mundell, 4 Har. and John. 505. Under the act of 1832, ch. 302, sec. 6, when causes are remanded,  [**32]  the opinion of this court is conclusive on the points decided by it.

An inferior tribunal can never err in following the directions of a superior tribunal. 1 Bro. Parl. Cas. 125. Ib. 281, 284. Himely vs. Rose, 5 Cranch, 313, 316. In such cases, the only question open is, has the decree been properly executed by the inferior tribunal? The Santa Maria, 10 Wheat. 431. 2 Mar. C. P. 579.

The rule is the same, as when the same decree is brought in evidence in another cause, a plea of former decree only raises the question of identity of subject matter in both causes.

3. That independent of the decree of this court, the complainant's right is made out to a satisfaction of his claim against said real estate, as he has in his bill sufficiently charged, and proved the insufficiency of the personal estate of the deceased to discharge his debt.

In discussing this point, the complainant will maintain:

1. That as the personal estate had been exhausted, an account thereof was practically useless.

2. That if the defendants below (the present appellants) had shown the propriety of taking an account of the personal estate, such account might, and would have been decreed [**33]  by the Chancellor.

3. That it is too late for the defendants to object to the insufficiency of the averments in the bill.

The several averments on that head are sufficient. The complainant is not bound to use the language of the act of assembly, 1785, ch. 72, sec. 2. The general averments in the bill, are equivalent to the language and requirements of the act, and substantial pleading is all that is required--no form of words is demanded. Stor. Eq. Plea. 205, 206. 3 Chan. Rep. 28. Harrison vs. Hogg, 2 Ves. Jr. 328. Dormer vs. Fortescue, 3 Atk. 132. Admissions in an answer will aid a defective averment in a bill.

Matter by answer may be put in issue, and raise a question which ought to have been raised by the bill. Birely and Holtz vs. Staley, 5 Gill and John. 554. This is in effect an objection to the sufficiency of the averment in the bill. Strike vs. McDonald and Son, 2 Har. and Gill, 233. Travis, et al vs. Waters, 1 John. C. C. 84.

4. That the decree is right in directing a sale of the real estate of the testator generally, or of so much thereof as should be necessary for the payment of the claims of the complainant below, of the Farmers' Bank of Maryland, a [**34]  defendant, and his other creditors.

In discussing this point, the counsel will insist:

1. That the claims of the creditors of the deceased bind his real estate in solido, and that they are entitled to a sale of such part thereof as may be made the more readily available for payment of their demands.

2. That it is the practice of the court to direct a sale of a deceased debtor's real estate, for payment of his debts generally, without requiring a previous account to be taken of those debts, whenever it appears that a sale will ultimately become necessary, the court relying on its power to do justice between the parties in its ultimate disposition of the fund.

3. That such decree was peculiarly proper in this cause, from the fact that the very large mortgage claim of the Farmers' Bank of Maryland bound a large portion of the whole estate, and a sale of the whole estate, or a considerable portion thereof, was absolutely necessary for payment of said claim, and from the great delay which had already taken place in the settlement of the deceased's estate.

4. That it is always in the discretion of the court, to suspend the execution of its general decree, for the [**35]  purpose of taking an account of outstanding debts, or any other account, upon a proper application by the heirs at law, or devisees of the real estate; and in the present case, such application was made and granted to enable the parties to adjust their proportions of the outstanding debts, to be paid by them respectively. It was not until after testimony had been taken upon this application, and the court was prepared to dispense such justice as they pretended to desire, that this appeal was entered.

5. That a sale of the interest of James Tilton and his daughter Clara Tilton, was necessary for the payment of the debt due to the Farmers' Bank, although the claim of the complainant as against them was adjudged to be barred, and these parties do not appeal from the decree; and it would have been against equity to have stayed the proceedings until the very inconsiderable portions of the complainant's claim thus adjudged to be barred, could be accurately adjusted, after the delay of nearly twenty years, which has been practised by the appellant.

6. That the widow claims as a devisee, and therefore her interests as a devisee were properly bound by this decree.

5th. That the [**36]  complainant concurs with the appellants in the point that the Chancellor erred in admitting the plea of limitations lately filed by Clara Tilton, and assents to a reversal of the decree in this particular. But he denies that the appellants, or any of them, are aggrieved by this part of the decree, or can be benefitted by its reversal, inasmuch as the charge against them is not increased by the discharge of Clara Tilton.

6. That if the decree is found to be erroneous in any of its moral provisions, it is at least clear and admitted by the points filed on the other side, that the appellee is entitled to relief, and this court will therefore proceed to pass such decree as the Chancellor ought to have passed, allowing him the costs which he has incurred on this appeal.

The Farmers' Bank of Maryland, an appellee in the cause, relies on all the foregoing points, and further insists:

7. That it is competent for this court to administer equity as between the defendants to the suit in the court of Chancery; and as the claim of the said appellee is fully stated in the pleadings, is admitted by all the defendants who have answered, and taken pro confesso as against all others,  [**37]  this court will affirm the decree, at least so far as to authorize an immediate sale of the premises for satisfaction of the claim of said appellee, even though it should appear that the said decree is defective or erroneous in regard to the immediate interests of the complainant.

RANDALL, for the Farmers' Bank.

The first notice of opposition to this claim, was given at this bar; no prior proceeding ever objected to it. It is set out in the bill. The parties answering admit it. The mortgage is pleaded and not denied. The answer of Lloyd, and his agreement with the Bank, disclose the whole ground of objection. The claim was also established by proof, and no exception to it. This claim may be regarded in two aspects: 1. As independent of the mortgage. 2. As under the mortgage. If the parties designed a contest, they should have answered, and shewn the manner of their objection; instead of this, they submit, and in fact confess the debt for twelve years, and this with full notice. The defence should have been taken by answer. Chambers vs. Chalmers, et al, 4 Gill and John. 441. The debt paid by Lloyd was secured by the mortgage. It was not the debt set forth in terms by that [**38]  instrument; but it was included in the general words, as one of the other debts which might arise, and for which the mortgage in case of need, was to stand as a security; and the devisees of Marengo all renewed the note, and thus kept the responsibility of the mortgaged land for it. Brinckerhoff vs. Lansing, 4 John. C. R. 66.

The act of 1825 could not affect previous loans, nor destroy the right to tack claims then in force. This mortgage is a security for any equitable claim due from the mortgagor to the mortgagee. 2 Pow. 557. 5 Con. S. C. Rep. 657. Chase vs. McDonald and Ridgely, 7 Har. and John. 197. 4 Kent, 174.

The devisees of Marengo have alone the right to complain of this decree. Can they complain under the circumstances? Edward R. Gibson cannot complain; nor can he say he was injured. It was a debt to which he was a party on the note. He had confessed judgment in 1820. He was bound at all events to pay this debt. Fayette Gibson cannot complain of any mal-administration of assets. He held two portions of Marengo--one as devisee of his father; the other as bargainee of his brother. He does not object to the settlement with the Bank. He was a party to it--places his [**39]  defence on it. He was relieved by the application of the fund, and consented to it. Mrs. Tilton does not appeal. The only other party is Mrs. Gibson, and that she has any interest in Marengo, does not appear, but if she had, she is concluded. She is a judgment debtor for the debt released. These persons were all bound previously. Part of those liable agreed with the creditor in discharge of the whole number. No objection was made; and after knowledge and acquiescence for fourteen years, it is to be presumed that all assented.

Then admit it were merely a mortgage debt, and they might complain. A portion of the property applied in discharge of the mortgage--part to another debt--still they cannot complain until they have paid the portion for which they are equitably bound. They must contribute with the property applied to the unsecured debt, and that must go on until the release of the Bank operates some prejudice to them. Then they may complain. The devisees must first pay their own share.

A part of the proceeds of the mortgaged land has been applied to payment of general creditors of the deceased; to that extent the Bank may claim to be substituted.

If the Bank has a [**40]  lien on two funds, she may be confined to one, and required to leave the other to general creditors. But if so, it may raise a question of contribution, for she is not to be injured by being confined to one fund for the convenience of other persons. 3 Pow. on Mort. 1153. In this case the Bank may proceed under her mortgage, and as a general creditor for the balance against the deceased's real estate. This supports the decree; the Bank is not confined to the mortgage. Hatch vs. White, 2 Gall. 152. 2 Powell, 774, 866. King vs. King, 3 P. Wms. 361. Independent of mortgage, the Bank has a note. It is proved. No objection has been taken to it. The Bank has a right to a decree, as between co-defendants on the pleadings as they stand. Chamley vs. Ld. Dunsaney, et al, 2 Sch. and Leff. 710, 718. Elliott vs. Pell, et al, 1 Paige, 263.

McMAHON, for the Farmers' Bank.

Before I proceed to consider the proofs, I will remark on the character of the bill. It is said not to be a creditor's bill, on the ground of want of allegation that there were other creditors, with a prayer that they might come in. I maintain it is a creditor's bill. The qui tam allegation is never inserted in bills filed [**41]  under our acts of assembly. The opinion of the Chancellor in Strike and McDonald, is, that it has been usual to omit that allegation, and it is the practice to sell real estate without it. His opinion should be of high authority on that question, acquainted as he is with the course of practice and nature of all the precedents of his court. The cotemporaneous expositions of that court on this practice, are enough for my argument. But the act of 1785, ch. 72, is necessarily for the benefit of all creditors. Its language, its objects, the sales ordered under it, show, that it authorizes a sale for the payment of all debts of a deceased. The real estate was ordered to be sold to make a new set of assets for the payment of all creditors. It is equity between this and all other creditors which is to be obtained. The personal assets are to be distributed equitably, and so are the real. Then all under this decree may come in pro rata upon a decree for a sale. Notice is given to all to come in. The decree is for their benefit. The case of Byerly and Staley was not under the act, but was upon a bill at common law, and for another object.

But the character of this bill is immaterial. It [**42]  was filed to reach assets. It is competent to the Chancellor to pass a general decree, and administer the assets. 1 Stor. Eq. 516, no. 2. 8 Law Lib. 194. A creditor proceeds against property. The complainant has a right to make every incumbrancer on that property a party. Prior incumbrancers are necessary parties. The object is by a single operation to release the estate from all charges. This being the character of the bill, it calls upon all incumbrancers to state their rights, and the Bank's claim is a necessary part of the complainant's claim. Every defendant admits the existence of the Bank's mortgage. No pretence of the debt discharged. The general replication is filed, and the Bank proves the amount of her claim. Such is the state of the case on which the Chancellor proceeds to decree a sale for the payment of McCormick and the Bank. This decree establishes the Bank's claim. It is a decision that the claim exists, and that the personal property is insufficient. Other creditors are to prove their demands. Strike vs. McDonald and Son, 2 Har. and Gill, 218, 261.

At the time of the decree, we held a mortgage and a note; we had the rights of special and general creditor. 4 Kent,  [**43]  183. For money due on bond and mortgage, the creditor may proceed concurrently on both remedies; we could release the mortgage and hold Gibson personally, if no equity was interposed by a third party to restrain our right and throw us upon our mortgage.

In Penn vs. Diggs, the controversy was whether the simple contract or specialty was to prevail with reference to the statute of limitations, and the effect of a decree in rem to take the case out of the statute.

Every fund liable to pay general debts is liable to pay our debt; and he who would impeach this must show that our remedy will disappoint him of that fund.

Standing thus, with a right of election in either aspect, all necessary parties were before the Chancellor.

The only pretence of a want of party is the executor of Jacob Gibson. Now, under the mortgage he is not a necessary party. David, et al vs. Grahame, 2 Har. and Gill, 94. As simple contract creditors all the parties are before the court. At what period is the objection to be urged that Fayette Gibson is not here as executor, and called on to account?

Objections for want of parties may sometimes be taken above. Edw. on Parties, 24, 25. If he is [**44]  essential here, he is only so to the defendants. No motive personal to the party, allows the objection. The rule is that the party wanted is essential to justice. Such objections are only to be privileged in strong cases upon appeal. The Mechanics' Bank of Alexandria vs. Seton, 1 Peters, 306. Birely and Holtz vs. Staley, 5 Gill and John. 453. Suppose Fayette Gibson was not named in the bill. If no assets to pay debts at all, he need not be a party. David vs. Grahame, 2 Har. and Gill, 94. Then the reason has failed. He is only necessary to show assets exhausted. These are the objects. He is to aid in the establishment of certain facts; a mere formal party. If the objects are supplied, this court will not reverse upon appeal. But he is named; all his acts and transactions as executor are charged. He is in by subpoena. He is to answer a series of facts. His particular character need not be stated when the bill necessarily shows that character.

Have not the court the right to decree between us? The right to decree against a prior incumbrance for the relief of the creditor. If the Bank is here in an attitude for a decree, the court must award it.

Now this is a bill, on the footing [**45]  of which we may come in, and assume the attitude of complainant. Strike's case, 1 Bland, 71.

The incumbrancer, and another creditor, may go into Chancery together, and have divers decrees. Jones vs. Jones, 1 Bland, 452. Fenwick vs. Laughlin, 1 Bland, 475. Chamley vs. Ld. Dunsaney, 2 Sch. and Lef. 709. Elliot vs. Pell, et al, 1 Paige, 263, 268. Decrees may be made between co-defendants, on proof taken between plaintiff and defendant in the same cause. Here every defendant admits the debt. The bill admits the amount. The court cannot look to the answer of the other parties than Lloyd, to determine the rights between the co-defendants.

A decree is founded on pleadings and proof; facts not proved are disregarded. Carneal vs. Banks, 10 Wheat, 181. Cowan vs. Price, 1 Bibb. 173. These questions arose in this cause before.

Then what is in issue as respects the Bank? 1. The debt. 2. The agreement set up by Lloyd as a defence of the property bought by him. This defence is consistent with the other facts. It is merely to discharge himself. He states nothing for or against the other parties. We are not trying the cause with Tilton and Wife and Clara Tilton; only the other defendants [**46]  appealed.

Then as to the decree, objection is made to it from the want of an account ascertaining the quantum of the claim. This question is at rest by decisions of this court. David vs. Grahame, 2 Har. and Gill, 97. The quantum of the claim is not disputed; hence an account not necessary. The claim is not disputed; the defendants proved it.

The second reason for an account, rests on an assumed necessity of a reduction of the Bank's claim; that inquiry is involved in the subsequent discussion of this case.

A party is not entitled to an account when he has foregone the opportunity of asking for one. Chamley vs. Ld. Dunsaney and others, 2 Sch. and Lef. 712. This objection urged after final decree, and for the first time in the appellate court, will not be heard.

The next point relates to our attitude as simple contract creditors--a sale for the insufficiency of the personal estate. The complainant exhibits with the bill an inventory, and an account showing it exhausted. If the allegation was the complainant's death leaving sufficient estate, these facts would have disproved that statement. The only difference here is, we state the facts which prove the allegation,  [**47]  instead of the allegation itself. This is sufficient. Tiernan vs. Poor and Wife, 1 Gill and John. 230. Birely vs. Staley, 5 Gill and John. 451. Warfield's case. The act of 1832 has closed this point, whether it be matter of pleading or proof.

The account of the Orphans court cannot be impeached here. The vouchers are not here. It is mere conjecture that it is wrong. Some creditors are paid in full, some in part, still the assets are gone. If the account was restated, the fact of insufficiency still exists.

Then as to the effect of the former decision in chancery, limitation was held a bar. The point presented was limitations--but the bill was dismissed. So it stood in this court. Was it not competent then, as now, to allege want of parties, or wrongful allowance; or no relief due? These objections were open, yet the court say the complainant is entitled to relief, and remand the cause.

Every decree in a cause ought to be conclusive of all objections which might have been urged against such decree; else no end to litigation. Gover vs. Hall, 3 H. & J. 47.

The main objection, however, is that before decree, an account should have been taken, ascertaining the liabilities [**48]  of the estate, and making a pro rata adjustment among the claimants.

Now on this theory no creditor could come in after decree, for that would disturb the pro rata distribution.

They also demand proof of the value of the whole estate, and how much each part is liable for. In effect they ask for an experimental decree.

The practice proposed is full of difficulty. When there is a general lien, it may be enforced before waiting for ascertainment of equities between the party defendants. No exception to this, unless parties ask on peculiar grounds of equity to be relieved from the general rule.

The power here is to sell the lands of the deceased on notice to his heirs--a proceeding in rem for the payment of creditors, depending on the exhaustion of the personal estate. It is a charge on the land in solidum, and not on parcels.

A decree on different principles, requiring an account of the personal before sale, is in discretion of the Chancellor. The right to this is ex gratia. But under the existing practice every existing right is protected. The creditors are first paid--the heirs are entitled to surplus. The surplus right is not to be adjusted until after the [**49]  creditor is paid. There may be occasional inconveniences in this practice, but it does not shut the parties out from controverting their rights, yet accomplishes their protection in the best mode. The only difference is in point of time.

It would be an inconvenient practice to decree a separate sale of each heir's land. The easy mode of redress is for the heirs to pay off the debts.

Again, there is no evidence that this estate will do more than pay off the debts. The equities relied on may never arise. Hoye vs. Penn, 2 Har. & Gill. 477. Hoye vs. Penn, 1 Bland, 28.

Then as to the peculiar objection founded on Mr. Lloyd's agreement. He complains because he is charged. The appellant complains he is discharged. The decree charges. Their objection then does not arise. The Bank cannot proceed against Lloyd, but his property is still liable to other creditors. If the agreement discharges the claim, Lloyd pleads it, but not so as to make it a defence to the other parties.

But who makes this objection? Fayette Gibson who has the whole of Marengo, and conveyed to Lloyd with a general warranty against the very mortgage. How could he claim contribution? He cannot complain that [**50]  his covenant is released.

An heir or devisee may call on the personal estate to pay off a mortgage. Galton vs. Hancock, 2 Atk. 430. Livingston vs. Livingston, 3 John. C. R. 153, 158. Long vs. Short, 1 P. Wms. 403.

Nor is there any error as respects Mrs. Rebecca Gibson. She has no interest in the property except by way of easement and license. Use and occupation at her election, with direction to her son to furnish fire-wood--also an annuity from her sons. This is in lieu of dower and of personal estate. It is no charge on the estate--no interest in the land.

She is a purchaser for a valuable consideration, but she is a purchaser from the mortgagor Gibson, and stands not on higher ground than he did. She is a purchaser, and could not object to the sale. She took subject to the incumbrance. She may come in, in preference to general creditors, but as she never came in, she is not entitled to costs. If she loses her devise, she is turned round to her dower, and on proof of that, is let in as a creditor.

The Chancellor, it is said, gave no day for the payment of the money. Now if the complainant was entitled to relief, no day is required. The Chancellor is not to make [**51]  two decrees for a sale. A defendant incumbrancer is not embraced by the act of assembly. It is only in the case of mortgagee vs. mortgagor, that a day is given to pay off the mortgage debt. If the spirit of the statute is gratified, that is sufficient. Any proceeding before the Chancellor, which gives a day, is enough. We ask for a sale. We are allowed one on notice--notice before sale. This is a suspensory order.

R. JOHNSON, for the appellants, in reply:

It is conceded there must be a reversal. The difficulty arises in the extent of it.

As respects Lloyd's property the decree is erroneous, and if in point of law, the decree ascertains the debt of the Bank and McCormick as alleged, and if decree is to pay the whole extent of both these debts, it is erroneous. The argument at first assumed that much.

There is however a preliminary question as to the effect of the first decision in establishing the right of the complainants. The bill was filed on the allegation of the personal estate exhausted; a sale for the whole debt, the assets being exhausted, and not for a proportion of assets, and a sale for the residue. On Tilton's plea the bill was dismissed. The opinion [**52]  of the court states, the only question on that appeal is the effect of the plea of limitations. By it this court meant to exclude all other questions. The decree is different from the opinion; the effect of the plea is limited, and the court reversed the decree, and remanded the cause for relief. The extent of the relief is left open. It merely informs the Chancellor, that the complainant on the bill is entitled to recover, and as the executor is before the court, if he had assets then, a decree to account against him gratifies the decree.

The question is open as to extent of relief, out of the real assets alone.

As far as the Bank is concerned, whether the bank is entitled to be preferred out of the mortgaged premises, in whole or in part.

My friend refers to the account of the executor exhibited with the bill, and claims as a part of his own, that account which shows the decree erroneous.

The appellants demand an account of personal assets before a decree for a sale.

The sum of $ 38,328 was applicable to the debts of the deceased. No evidence of any claim but the debts in part or in whole discharged in the account that of the complainant and the Bank. The [**53]  assets are sufficient to pay 75 cents in the dollar. Under the testamentary law, the Bank should have received a part of the personal estate. The devisees could call on the personal estate for relief. McCormick was entitled to be then paid. He has only received $ 600. The Bank has received nothing. The act of 1785 applies to the insufficiency of assets as left by the debtor, and not to an insufficiency arising from the course of the executor; by this account a part of his own claim was paid; some debts were paid in full. There are other cases of payment; some in part, some in full.

McCormick was entitled to a sum of money out of personal estate, for which he had no right to charge the real estate. The case presented is, that McCormick is entitled to a rateable proportion of assets. If enough to pay all the debts no claim, if paid in part only authorized to go against real estate for the balance. Collinson vs. Owens, et al, 6 Gill and J. 4. The executor has no power but with personal estate. He can create no evidence against the heir or devisee.

Then what is the decree? The Chancellor has ordered the estate to be sold for payment of debts as they are alleged to exist. The [**54]  real estate is to be sold for payment of the mortgage claim of defendant, and claim of defendant, as stated in the proceedings, and for all other creditors. The decree is an ascertainment of a debt, and an order for payment out of the real estate. The same remark applies to the Bank's claim as considered against the estate generally. She can only look to real estate after personalty exhausted.

I proceed now to inquire whether the Bank debt is one entitled to be paid out of the real estate or not.

It is the intention of the testator alone which excuses devisees of unincumbered property from contributing with devisees of incumbered property.

The result is that the devisees of Marengo have no right and never had any to call on other devisees to make good their incumbrance.

The other devisees have a right to have the mortgage property applied to the mortgage debt.

Gibson was indebted on note endorsed by Fayette Gibson and Tilton. This note is renewed from time to time. Upon the last renewal it is endorsed by Fayette and Rebecca Gibson. There is an absolute judgment against each of them. Now the Bank's debt was a charge on Marengo. The proceeding at law extinguished [**55]  the debt against Jacob. That is, the simple contract of Jacob was extinguished. Then the Bank without the consent of the devisees, enters into an agreement with Lloyd, who was to be held discharged of the lien of the mortgage. What is the effect of that agreement as to persons not parties? It is said not to be pleaded except by Lloyd, and that it cannot avail other defendants. Now it operates as a payment of the debt. It was evidence in the cause. It is not controverted by the Bank. The mortgagee may rely on it as a payment. He is not estopped by correlative equities. He has certainly discharged a part of the debt, and the reservation of the agreement is that the Bank will not proceed upon Lloyd's part of Marengo for payment of the balance due her.

Lloyd has a right to pay off the mortgage, and succeed to the mortgagee's rights by assignment. I am getting clear of elder incumbrances as to junior assignees. This case is released by an elder incumbrancer. Upon a release of part of the land, mortgage debt pro tanto is gone, and the decree should have been accordingly. Stevens vs. Cooper, 1 John. C. R. 430. In that case there was but one debt due. The holders of parcels of incumbranced [**56]  property having equities inter se, ought to be respected by the creditor. He should not use his power in such a way as to throw the debt on any one to the exclusion of another.

There is not more difficulty upon this appeal, than on other causes. Any devisee who pays more than his share of the testator's debts, has an equity against the others. A question of apportionment then arises before sale, and it depends upon the value at the date of the mortgage. The Chancellor's order should show the appropriation.

Then it is said the effect of the release cannot be insisted on by the parties here. It is said there are none here competent to complain of it. But since the decree must be reversed, what is this court to do? They must pass such a decree on the whole cause as the Chancellor was bound to pass. In such event, this court exercises a quasi original Chancery jurisdiction, and is bound to protect all parties.

But is it true none are here to complain? I assume that $ 9000 was to have been paid the Bank out of the personal assets. That the deficiency was paid out of the realty. That the devisees of the unmortgaged part of the real estate had a right to have the mortgaged [**57]  property first appropriated to the mortgage debt. As far as it was a general debt, it was to come in for a proportion of assets.

The other devisees were injured by the Bank's contract, and consequently as to them, the same course must be pursued now as if the release had not been executed. Here the counsel went into calculations based on the accounts and condition of the estate, to show the practical consequences of the views pro and con at this part of the cause.

This decree is also erroneous from its influence on the widow's interest.

By the act of 1798, ch. 101, sub ch. 13, sec. 5, if in effect nothing passes to a widow by a devise in lieu of dower, she is not barred. She is a purchaser for a fair consideration. The widow independent of her devise is a favoured creditor. In this character she is called on by the act of 1798 to elect within ninety days whether she will abide by or renounce her husband's will. Now, during this period, she could not ascertain whether her husband's estate was solvent or insolvent; for anterior to the settlement of her husband's estate, the law implies no knowledge in her of its condition. 1 Bland, 203, 204. The widow has accepted the [**58]  devise. She comes in qua creditor. She has a claim on the proceeds. In this view it makes no difference whether her dower or devise is sold. If entitled to either, the decree is erroneous. It saves no rights. She is a party in the cause, and under the decree no right is saved for her; the land is to be sold clear of the claims of all parties.

The case of the bill is insolvency of the personal estate, and an incumbrance prior to the death of the husband, on the property devised to the widow. She therefore takes nothing by the devise. It is in effect fruitless as to her. Certainly as to her, this decree is erroneous.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*100]  DORSEY, Judge, delivered the opinion of the court.
An objection was taken in the course of the argument in this case, to the form of the complainant's bill; and inasmuch as it does not provide for the coming in of the other creditors of Jacob Gibson, and participating in the burdens and benefits of the suit, that it is not to be regarded in the nature of a creditor's bill, under the act of assembly of 1785, ch. 72.
But this objection,  [**59]  we think, cannot be sustained; such a bill is not of unfrequent occurrence in the records of the equity courts of Maryland, in which it has always been treated as a creditor's bill, in the decree founded upon it, and 

 [*101]  all the proceedings thereunder. It has no equity, nothing to support it; but the act of assembly referred to, which prescribes no particular form of such a bill, and authorizes upon application of any creditor, the sale of the real estate in whole or in part, for the payment of the debts of a deceased debtor, whose personal estate is insufficient for the payment thereof. As far as concerns this objection, the decree of the Chancellor pursues the usual form adopted on a creditor's bill.
The decree was also objected to, because it awarded a sale of the lands mortgaged to the Farmers' Bank of Maryland, for the payment of the mortgage, as well as for the payment of the debts of all other creditors of the deceased, the Farmers' Bank being made a defendant, not a complainant in the bill.
In this objection we see no weight. A decree between co-defendants, grounded upon the pleadings between the complainants and defendants, may be made, and it is the constant [**60]  practice of the courts so to do, to prevent multiplicity of suits. But such decree between co-defendants, to be binding upon them, must be founded upon, and connected with, the subject matter in litigation between the complainant and one or more of the defendants. For this doctrine see Elliott vs. Pell, 1 Paige Ch. 263, and Chamley vs. Lord Dunsaney and others, 2 Sch. & Lef. 710, 718. The power of the Chancery court to pass that part of the decree which has been excepted to, is conclusively established by the authorities referred to, the justice and expediency of so doing cannot be denied; the assent of the mortgagee had been given, the mortgage had been long forfeited, a sale of the equity of redemption could not be resisted; then why sell the equity of redemption, subject to the outstanding mortgage, to the manifest injury of the creditors of the deceased, and the parties to this suit, and to the multiplication of litigation, by sending the purchaser, before he could realize the benefits of his purchase, into a court of equity with his bill to redeem? Consistently with the established principles of courts of equity, the Chancellor, in the matter [**61]  complained of, has done nothing but what it was his duty to do.

 [*102]  The next exception taken to the decree is, that it has given no time to the devisees of the mortgaged premises, or those holding under them, for the payment of the mortgage debt, as directed by the 3d sec. of the act of 1785, ch. 72. This section of the act of assembly has no reference to a decree made under the circumstances of that now under consideration. By the terms of the enactment, it embraces only applications to the Chancellor to foreclose mortgages, filed by mortgagees, or their representatives. Here there is no such party complainant before the court. The bill is filed by a general creditor of the mortgagor, seeking for the payment of his debt by a sale of the mortgagor's real estate, and the mortgaged premises among the rest. Such a creditor is not to be delayed in the remedy he seeks, by giving time to the mortgagor, or those claiming under him, to pay off the incumbrance. There is no reason or object in granting such an indulgence in a case like the present. The design of the legislature, in the enactment alluded to, was to give to the debtor an opportunity of superseding the necessity for the [**62]  sale of his mortgaged estate. Would giving time, and payment of the mortgage, remove the necessity for such sale in the case before us? Certainly not. The sale must still be decreed for the payment of the general creditors of the deceased. So far as a sale of the mortgage premises is decreed for the payment of the mortgage debt, it is a mere incidental consequence to the decree, on the general creditors' bill, resulting from the established principles of courts of equity.
There is nothing in the objection taken to the bill, that it does not allege the insufficiency of the personal assets to pay the debts of the deceased. That allegation, though not made in the very terms of the law, is substantially made in the bill before us, which charges the continued existence of the complainant's claim, the exhaustion of the personal estate, and exhibits an account settled by the executor before the Orphans court, shewing the application of the whole personal fund to the discharge of the debts of the deceased; and that some of those debts were paid off but in part. If this 

 [*103]  be not a sufficient statement of a fact required by the law to give jurisdiction to the court of Chancery, it [**63]  is difficult to conceive any thing that would be, short of the use of the identical words contained in the act of assembly. A particularity like this never has been required either at law or in equity.
Another ground insisted on for the reversal of this decree, is that an account preliminary thereto, should have been taken of the disposition of the personal estate by the executor, and of the debts of the deceased remaining unpaid; and in support of this ground but one authority has been referred to, viz. that of Callis and Semmes vs. Ridout and Ringgold, 7 G. & J. 1. But this case establishes no such rule or practice, and rests solely on the express provisions of the act of 1822, ch. 65, under which the commissioners who made sale of part of Barnaby Manor for the payment of debts, were required in the first place to give notice by advertisement, in newspapers in the state of Maryland and District of Columbia, to the creditors to exhibit to the commissioners their claims, supported by legal evidence, on or before the first day of June next thereafter, and immediately after the said first day of June, to proceed to sell such part of Barnaby Manor as may be sufficient [**64]  to discharge the debts which shall have been proved to the satisfaction of the said commissioners. The decision in this case was made, not under any rule or practice of the court of Chancery, but in conformity to the peculiar provisions of this particular act of assembly. The practice under the act of 1785, ch. 72, has always been the reverse of that now contended for; and great injustice would be done to creditors by its change. If no sale of the fund provided by law for the payment of debts, is to be decreed, no creditor to be paid until all litigation as to claims against the deceased shall have terminated, the rights of creditors will be in a more deplorable condition than any wise system of legislation ever designed to place them. The exercise of that conservative power exerted by courts of equity in selling for the benefit of those concerned, property in litigation, and 

 [*104]  preserving its fruits for those who may shew themselves entitled, would be arrested; heirs and devisees, that they might continue in the possession and enjoyment of the real estate of their ancestor, liable to the payment of his debts, would be tempted to engage in and protract litigation with his [**65]  creditors to an almost interminable duration, to the ruin and injury of creditors, and destruction of the property assigned by the law for the payment of claims. Permit the Chancery court to interpose, in the usual mode, its protecting power; take possession of the property, and convert it into the appropriate medium for distribution, and creditors are subjected to no such delays and oppression. All parties will be interested in avoiding useless controversies. To such an objection, at such a time, and under the present circumstances, this court should listen with a most reluctant ear. With the account of the administration of the personal estate, as rendered by the executor, the complainant was satisfied. It contained all he wished to discover; he sought no relief as against the executor; he therefore required no further account from him. Did any of the defendants, in their answers, call for such an account? No. Did either complainant or defendants ask of the Chancellor a statement of the claims against the deceased, as preliminary to a decree? Neither. With what kind of grace then, do they stand before this tribunal, seeking a reversal of the decree, because it was not ordered in [**66]  the court below; even conceding that such an application, if applied for, would there have been granted. No account having been prayed for by any of the parties in the court below, it cannot be relied on in the appellate court as a ground for the reversal of the decree, say the house of lords in Chamley vs. Lord Dunsaney, 2 Sch. & Lef. 712.
It has also been insisted that the decree is erroneous, in not decreeing payment of the debts of the deceased, by a just contribution imposed upon the property of each devisee. Such a decree, it is manifest, it was not in the power of the Chancellor to have made, as no statement of the claims against the deceased had been made, or adjudicated on, by 

 [*105]  the court; without which, a decree of payment by way of contribution was wholly impracticable. But if such statement had been made, and confirmed by the court, it would have been error in the Chancellor to have passed such a decree. That even as to the bank claim, a decree for its payment by contribution by the several devisees of Marengo, would not have been authorized. See 1 Pow. mortgage, 339, note (3), and Hughes vs. Edwards, 22 U.S. 489. [**67]  A fortiori would such a decree be unwarranted, in respect to the claims of creditors; the reasons against it in the latter case being far more numerous and controlling, than in the former. In fact the decree for contribution is not a decree affecting the rights of the complainant, or passed between him and the defendants, but is an adjudication between the defendants themselves, settling their rights and liabilities, in respect to each other, and is made after the claims against them, of the complainant and all other creditors of the deceased have been definitively adjusted.
In authorizing the sale of that part of Marengo, conveyed by Fayette Gibson to Edward Lloyd, it is insisted, that the decree is erroneous upon several grounds. 1st. It is urged that Edward Lloyd, having in his answers set up the defence of his being a bona fide purchaser for valuable consideration, without notice either of the claim of the complainant, or that the personal estate of the deceased was insufficient for the payment of his debts, is protected as such against all claims of the complainant, as a general creditor of the deceased.
On the existence of such protection, abstractedly [**68]  considered, we mean to express no opinion, but to its existence in the circumstances under which it is here claimed, we cannot yield our assent. It is apparent from the answer of Lloyd, and his conveyance from Fayette Gibson, that at the time of the conveyance he knew that Fayette Gibson acquired title to the land conveyed, as devisee of his deceased father, Jacob Gibson; and whether such fact was actually known to him or not, is immaterial, the law imputes such knowledge as necessarily acquired in the examination of the title to the property 

 [*106]  conveyed to him, and also imputes to him the knowledge of the provisions of the act 1785, ch. 72, sec. 5, which made Jacob Gibson's real estate chargeable with the payment of his debts in the event of his personal estate proving insufficient therefor. Possessing this knowledge, he was put upon the inquiry; it was his duty to have ascertained whether the personal estate was sufficient for the payment of the debts of the deceased. Had he have used reasonable diligence in the examination of this fact, he would have found that when he received the conveyance from Fayette Gibson, the executor had passed no account [**69]  shewing the payment of the debts, that there was then pending in Talbot county court, against the executors of Jacob Gibson, a suit for the recovery of the very debt which the complainant seeks to recover by his present bill, indeed it is manifest from the answer of Lloyd himself, that he knew the debts of the deceased had not been all paid out of the personalty. He states that the whole purchase money for the land conveyed to him was applied towards the payment of three enumerated debts of Jacob Gibson, and this application was made not by the executors, but by one of the devisees, who had sold a part of the property devised to him. It may be suggested that perhaps this payment of the deceased's debts was on account of the mortgage debt due by Fayette Gibson to Edward R. Gibson, the executor, as shewn by exhibit No. 8. But such an intimation is not warranted by the facts in proof before us, not only because no part of the mortgage debt was payable until more than twelve months afterwards, but because the debt to secure which the mortgage was executed, had no existence, until several months after the payments made out of the purchase money of the land conveyed [**70]  to Lloyd. It is an evidence of singular neglect on the part of a purchaser that he should receive a conveyance for lands from a devisee, the value of the title to which in a great measure depended on the sufficiency of the personal assets for the payment of the testator's debts; that he should by arrangement between himself and the devisee, who was not the executor, apply 

 [*107]  the whole purchase money of the land conveyed to him, to the payment of three of those debts, one of which had continued due to himself between three and four years since the testator's death, and before its payment by the purchase aforesaid, and yet under all these circumstances, and during that period, he had no reason to suspect nor does it appear that he ever inquired into the sufficiency of the personal estate for the payment of debts.
The second ground assigned as error in the decree authorizing the sale of Edward Lloyd's part of Marengo, is that the whole purchase money therefor having been applied to the payment of Jacob Gibson's debts, the purchaser should be protected in his title. The answer to this is, that the facts sated in Lloyd's answer were traversed, and that no proof [**71]  whatever has been offered to sustain them; that if full proof thereof has been offered, no devisee or person claiming under him, has the power of depriving the creditors of the benefit of obtaining the highest price which the property devised will produce, when offered at public sale under the proper authority. By making a private sale thereof, and applying the proceeds in payment of the debts of particular creditors, such a state of things should have its influence with the trustee in selecting the particular parts of Jacob Gibson's real estate, which it might be found necessary to sell; but does not divest the Chancellor of the power of decreeing the sale which possibly may be necessary for the payment of debts. The exercise of the discretion by the decree vested in the trustee as to the quantum and selection of the particular parts of the real estate to be sold, is always subject to the control of the sound discretion of the Chancellor, whenever its exertion is properly invoked.
Upon the principle of substitution, Col. Lloyd, or those claiming under him, will be subrogated to the rights of the creditors whose debts he has paid. Had the personal estate proved more than [**72]  sufficient for the payment of debts, the devisees of Marengo might have called on the executor to the extent of such excess to redeem the mortgage, but they 

 [*108]  have no equity as against the devisees of other parts of his real estate, which would authorize their being called on to contribute for such a purpose.
The 2d and 3d points filed by the appellants have been waived.
It is contended, that the allegations and prayer in the bill, did not authorize the Chancellor in allowing the complainant's claim to the extent to which he has decreed its payment. If the specific prayer in the bill of complaint, to be paid this claim out of the realty, be regarded as praying the payment of the whole amount of the promissory note which he held, independently of any principle of substitution, and exclusively on the ground of its being a debt due by the deceased, for the payment of which there then remained in the hands of the executor no personal assets, it must be conceded that such a prayer could not be granted, according to the well established principles of equity, announced by this court in the case of Gist's adm'rs vs. Cockey & Fendall, 7 Har. and John. 134, and the case [**73]  of Collinson vs. Owens, 6 G. & J. 4. But assume for the sake of argument that the complainant is not entitled to relief according to his specific prayer therefor, is he not entitled to full relief upon the general prayer contained in his bill. Nothing is better settled than that if a complainant cannot obtain the specific relief for which he prays, he may obtain any relief consistent therewith, warranted by the allegations in his bill, provided it contains a prayer for general relief. Do the allegations in the bill warrant a decree for the payment out of the real estate, of the amount of the complainant's claim, is the consequent inquiry? In our opinion it does; it contains all the material statements of facts, necessary to shew the existence of the debt at the death of Jacob Gibson, and its subsequent non-payment| It then charges that the personal estate has been exhausted in the payment of debts, and exhibits an account passed by the executor before the Orphans court, proving that fact, and shewing the name of each creditor, and the amount of the debt due him by the deceased, which 

 [*109]  has been paid out of the personal assets, which is in effect the same [**74]  thing as if the bill had at full length, and in the most formal manner, charged that Jacob Gibson died indebted to each of the creditors, nominatim, who are mentioned in the said account, for the amount therein stated to have been paid to them, and that such payments had been made out of the personal assets of the deceased. Upon a bill with such a statement of facts, and prayer for general relief, could a court of equity deny to the complainant the right of substitution? Assuredly not. The right of substitution is not a matter of fact, which a party must allege to entitle him to its benefit, but is the conclusion of law or equity drawn by the court from the statement of facts out of which it arises. The solicitors of the defendants contend, there is no allegation in the bill, or proof in the cause, that the claims mentioned in the account exhibited from the Orphans court, are chargeable upon the real estate, to the extent of the insufficiency of the personal assets. If the substance and effect of the bill be as we assume it, such an allegation is wholly unnecessary; it is the necessary inference of law to be drawn by the court from the act of 1785, ch. 72, when the facts are [**75]  proved or admitted before it, unless such inference be repelled by some plea or matter in avoidance. There is no such plea or matter of avoidance, except as to the Tiltons, relied on or proved in the record before us, and as between the complainant and defendants, no such plea or matter of avoidance can ever arise upon any future stage of the proceedings in this cause.
The complainant's claim as far as the correctness of the Chancellor's decree is involved, must stand or fall upon the proofs and proceedings now in the record. Can it stand this test, is the next question to be inquired into?
If the allegations of the bill be by the answers admitted, or being put in issue be proved, or being neither admitted or denied be proved, or a decree pro confesso be had against the defendants, as against all the defendants who are sui juris, the result is the same. A decree for the sale of the real estate for the payment of the complainant's claim, passes as 

 [*110]  a matter of course, he being substituted as against the realty, to the rights of those creditors whose claims have been satisfied out of his proportion of the personalty. How then in these respects stands the complainant [**76]  before us? In a very different condition from the complainant in Collinson vs. Owens, where the defendant relied on the statute of limitations, and the false and fraudulent character of the claims, under which the right of substitution was claimed. Here the statute of limitations has been in no wise interposed, to arrest his pursuit of the right of substitution.
As far as concerns the interests of Edward R. Gibson, Frances Tilton, Nancy Gibson, Joseph W. Reynolds and Anne his wife, and Rigby Hopkins, he has obtained a decree pro confesso, and his right to a decree against them cannot therefore be questioned.
Is he entitled to the same relief against the defendants who have answered? we will proceed to examine. The answer of Fayette Gibson admits all the material allegations charged in the bill, and consequently as to him, there is no error in the decree appealed from.
As to the heirs of Harriet Bennett, she by her answer having admitted none of the claims paid by the executor, in virtue of which substitution is sought, no decree could have been passed against them, founded on such substitution; but the complainant's debt proprio jure, having been [**77]  admitted by Harriet Bennett, and indeed fully established by proof, the property devised to her becomes liable to sale, to meet its just contribution to the payment of so much of the complainant's debt as remains unsatisfied.
After deducting therefrom its pro rata distribution of the personalty. The lands conveyed by Fayette Gibson to John W. Blake stand in the same situation.
Several objections to the decree founded on the answer of Edward Lloyd have been urged; some of which form no ground for the reversal of the Chancellor's decree, and may perhaps never necessarily arise in the cause; or if they do, it is after the proceeds of sale, under the decree, are brought 

 [*111]  into the court for distribution. Of this character is the exception taken on behalf of the devisees of Marengo, that by the agreement between the Farmers' Bank and Lloyd, (to which it does not appear that the devisees of Jacob Gibson ever assented,) the bank has released a portion of the security which it held for the payment of its debts, and that to the extent of the security thus relinquished, in the proportion that the value thereof bears to the value of Marengo entire,  [**78]  they are to be exonerated from the payment of the mortgage debt to the bank. If it should turn out that the residue of that part of Marengo devised to Fayette Gibson, and not by him conveyed to Edward Lloyd or John W. Blake, united with the other parts of Marengo, to which Fayette Gibson was entitled, after paying their just contribution towards the mortgage debt, and all other debts of the deceased, should prove inadequate to the payment of that portion of the mortgage, which the part of Marengo devised to Fayette Gibson was bound to contribute; then in reference to the other devisees, owners of Marengo, the mortgage debt to the bank must be deemed satisfied and paid, to the extent of such inadequacy.
The principle upon which the other parts of Marengo, owned by Fayette Gibson, otherwise than by devise, are subjected to the payment of the contribution properly chargeable on the part of Marengo, devised to him, is, that by the covenants in his deed to Lloyd, he is bound to indemnify him against the mortgage debt, that but for the agreement between Lloyd and the Bank, the land conveyed to Lloyd would have been answerable [**79]  for its proportion of the Bank debt; that a part of the consideration of the agreement, and one of its express stipulations was, that the Bank should retain its right of enforcing the payment of its debt, out of all that part of Marengo not embraced by the conveyance to Lloyd. If then Fayette Gibson seeks against the Bank, protection in a court of equity, under this agreement, he must hold himself bound by its stipulations. The exemption which he could successfully claim, and which could be extended to him, rests upon 

 [*112]  the broad principles of natural justice and equity; and an application for it could not be countenanced by a court of Chancery, but on his acquiescence in all the provisions of the agreement.
It has also been objected to the decree on the behalf of the devisees of Jacob Gibson, other than those of Marengo, that the Bank, by its agreement, having surrendered a portion of its security for the payment of its debt, thereby discharges them from liability, to the extent of the loss sustained by such surrender. Of the soundness of this position there can be no doubt, but that it shews error in the Chancellor's decree so as to [**80]  authorize its reversal, is by no means apparent.
In the first place non constat, that any loss ever will accrue to the complaining devisees, in consequence of the agreement between the Bank and Lloyd. It may be that Fayette Gibson's remaining interest in the lands devised to him, so far as the same are properly chargeable therewith, is amply sufficient to pay his proportionate contribution to the payment of the mortgage, and other debts of his deceased father. We cannot, a priori, assume the contrary, and make it the basis for reversing the decree. But suppose such an assumption were made, is there any thing in the decree inconsistent therewith? It is true it directs a sale of the real estate of Jacob Gibson, or so much thereof as may be necessary for that purpose, for the payment of the mortgage claim of the defendants, The President, Directors and Company of the Farmers' Bank of Maryland, and the claim of the complainant as stated in the proceedings, and all other debts due from the said Jacob Gibson, deceased. But it would be a perversion of the meaning of the decree, to interpret it, as directing the proceeds of sale to be rateably distributed between [**81]  the Bank, the complainant and all other creditors, without reference to the liens, and priorities of the several claimants, to the proceeds of sale of the respective portions of property sold; or that if when applying the avails of the mortgaged premises to the payment of the mortgage debt, it should appear upon the established principles of equity, that a larger 

 [*113]  portion thereof was extinguished and satisfied by the mortgaged estate, than was in point of fact paid to the mortgagee, the Chancellor would inequitably award to the mortgagee, when standing before him as a general creditor, a larger proportion of the proceeds of the sale of the residue of the real estate of the deceased, than was actually due. Although the decree directs the sale for the benefit of all the creditors, and against all the devisees, its meaning was reddendo singula singulis, according to their respective equities, as apparent from the record.
In truth these questions were not presented, by the facts before the Chancellor, at the time of the decree; they may or may not ever arise in the cause, and can regularly only do so, when the proceeds of sale are brought into court for distribution,  [**82]  and consequently can form no ground for the reversal of the present decree.
The decree is further objected to, because the rights of the widow, under the will of her husband, have not been reserved; and this objection we think well founded. By the 5th section of the act of 1798, ch. 101, sub ch. 13, speaking of the bar which is created by that act of assembly, by the widow's acceptance of the devises made to her by the will of her husband, it is declared to be the intent of the act of assembly, and consonant to justice, that a widow accepting or abiding by a devise in lieu of her legal right, shall be considered as a purchaser for a fair consideration. The decree of the Chancellor makes no reservation of the rights of the widow under the will of Jacob Gibson, but declares that the purchasers from the trustee shall hold the property sold to them, free, clear and discharged from all claims of the parties to this cause, of whom Rebecca Gibson, the widow, is one. To conform to the act of assembly the decree should have ordered the sales to be made by the trustee subject to the devises made to Rebecca Gibson, by the last will and testament of the deceased. There is no intimation [**83]  in the bill, or proof in the cause, that the provision made for the wife by the will is fraudulent, in being greater than the value 

 [*114]  of her common law rights, and therefore unjust and injurious to creditors. She is therefore entitled to the benefit of all the bequests and devises made to her by the will as a purchaser for a fair consideration.
The reversal of the decree is also urged upon another ground, which we think supported by the construction always heretofore given to such decrees. In the commencement of the decree, the Chancellor declares, that the claim of the complainant is established to his satisfaction, except as against the defendants, James Tilton and Clara Tilton, to the extent of whose interest, it is barred by the act of limitations, and in a subsequent part of the decree, he orders that the real estate of the said Jacob Gibson, deceased, or so much thereof as may be necessary, be sold, for the payment of the claim of the complainant, meaning of course, as he has above stated it to be established, except as against the Tiltons; with that exception, the whole claim of the complainant is decreed to be paid, out of the proceeds of sale, of [**84]  all the devised property held by the defendants.
According to the views of this court, as expressed in the preceding parts of this opinion, this decree does injustice to the following defendants, and is therefore erroneous as to them; viz. Edward Lloyd, Harriet Bennett and John Wilson Blake's heirs. But inasmuch as sufficient appears in the record, to shew that a decree for the sale of the real estate of Jacob Gibson, or so much thereof as may be necessary for that purpose, for the payment of his debt, ought to have been passed; this court will not reverse the entire decree for the errors which we have recognized as imputable to it; but will affirm the decree without costs in this court, so far as it relates to the sale of said real estate, for the payment of the debts due by the said Jacob Gibson, and particularly the claim of the complainant, as the same shall hereafter be stated by the auditor of the court of Chancery, under the direction of the Chancellor, upon the proceedings, exhibits, and proofs now in the record; and in accordance with the view expressed by this court, in the aforegoing opinion, provided 

 [*115]  that such sale shall not be made [**85]  of that part of the said real estate to which the defendant, Clara Tilton, is entitled, and provided, that in such sale, the rights of the defendant, James Tilton, and of the defendant, Rebecca Gibson, under the last will and testament of her husband, Jacob Gibson, be expressly reserved. The right of substitution is to be allowed in stating the complainant's claim, and those of all other unpaid creditors, as against all the defendants, (except Rebecca Gibson,) against whom a decree pro confesso has been passed; but such right is to be denied to the complainant, as against the heirs of Edward Lloyd, Harriet Bennett and John Wilson Blake; nor is it to be extended to the other creditors of Jacob Gibson, against the heirs of the last mentioned three defendants, unless such creditors shall shew themselves entitled thereto, by the necessary proofs and vouchers taken under a commission issued for that purpose, or before the auditor of the court of Chancery.
It is thereupon this ninth day of February, in the year eighteen hundred and thirty-nine, by the court of Appeals for the Western Shore, adjudged, ordered, and decreed, that the decree of the court [**86]  of Chancery passed in this cause on the 13th day of May, in the year eighteen hundred and thirty-six, be and the same is hereby affirmed, so far as the same is consistent with the annexed opinion, and so far as the same is inconsistent therewith, the said decree is hereby reversed and annulled, and the sale of the real estate hereby decreed, is to be subject to the rights of Rebecca Gibson, the widow of the deceased; and that part of the Chancellor's decree, which directs a sale of the real estate of Jacob Gibson, for the payment of the mortgage debt due The President, Directors and Company of the Farmers' Bank of Maryland, is to be understood only, as applicable to the sale of the mortgaged premises; whenever the Bank may claim in its character of a general creditor, it comes in, as do other creditor, not named in the bill; and the reservation in said decree, of the rights of the said James Tilton, is not to be understood as applying to any part of the mortgage premises to the prejudice 

 [*116]  of the rights of The President, Directors and Company of the Farmers' Bank of Maryland.
And it is further adjudged, ordered and decreed, that the costs incurred by [**87]  the appellees in this court, shall be paid to them out of the proceeds of any sale or sales which may be made under this decree. And that this cause be and the same is hereby remanded to the court of Chancery, with power to pass such further decrees or orders as may be necessary to carry into effect this decree.